[Title 40 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2009 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          40


          Parts 87 to 99

                         Revised as of July 1, 2009


          Protection of Environment
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2009
          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:
      Table of CFR Titles and Chapters........................    1047
      Alphabetical List of Agencies Appearing in the CFR......    1067
      List of CFR Sections Affected...........................    1077

[[Page iv]]





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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 40 CFR 87.1 refers 
                       to title 40, part 87, 
                       section 1.

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

[[Page v]]



                               EXPLANATION

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

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

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

LEGAL STATUS

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

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
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    To determine whether a Code volume has been amended since its 
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Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
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Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
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citations for the regulations are referred to by volume number and page 
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OMB CONTROL NUMBERS

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

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in eleven separate 
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INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
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This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed as 
an approved incorporation by reference, please contact the agency that 
issued the regulation containing that incorporation. If, after 
contacting the agency, you find the material is not available, please 
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Records Administration, Washington DC 20408, or call 202-741-6010.

CFR INDEXES AND TABULAR GUIDES

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separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Authorities 
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This 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, keyed to 
the revision dates of the 50 CFR titles.




[[Page vii]]



REPUBLICATION OF MATERIAL

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in the Code of Federal Regulations.

INQUIRIES

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    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    July 1, 2009.







[[Page ix]]



                               THIS TITLE

    Title 40--Protection of Environment is composed of thirty-two 
volumes. The parts in these volumes are arranged in the following order: 
parts 1-49, parts 50-51, part 52 (52.01-52.1018), part 52 (52.1019-end 
of part 52), parts 53-59, part 60 (60.1-end of part 60, sections), part 
60 (Appendices), parts 61-62, part 63 (63.1-63.599), part 63 (63.600-
63.1199), part 63 (63.1200-63.1439), part 63 (63.1440-63.6175), part 63 
(63.6580-63.8830), part 63 (63.8980-end of part 63) parts 64-71, parts 
72-80, parts 81-84, part 85-Sec.  86.599-99, part 86 (86.600-1-end of 
part 86), parts 87-99, parts 100-135, parts 136-149, parts 150-189, 
parts 190-259, parts 260-265, parts 266-299, parts 300-399, parts 400-
424, parts 425-699, parts 700-789, parts 790-999, and part 1000 to end. 
The contents of these volumes represent all current regulations codified 
under this title of the CFR as of July 1, 2009.

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

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

[[Page 1]]



                   TITLE 40--PROTECTION OF ENVIRONMENT




                   (This book contains 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 I appear at 65 FR 
47324, 47325, Aug. 2, 2000; 66 FR 34375, 34376, June 28, 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 or below 19 
                    kilowatts...............................         171
91              Control of emissions from marine spark-
                    ignition engines........................         301
92              Control of air pollution from locomotives 
                    and locomotive engines..................         409
93              Determining conformity of Federal actions to 
                    State or Federal implementation plans...         554
94              Control of air pollution from marine 
                    compression-ignition engines............         603
95              Mandatory patent licenses...................         687
96               NOX Budget Trading Program and 
                    Cair NOX and SO2 
                    Trading Programs for State 
                    Implementation Plans....................         690
97              Federal NOX Budget Trading 
                    Program and CAIR NOX and 
                    SO2 Trading Programs.........         855
98-99           [Reserved]

[[Page 5]]



                  SUBCHAPTER C_AIR PROGRAMS (CONTINUED)



PART 87_CONTROL OF AIR POLLUTION FROM AIRCRAFT 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-Use Aircraft Gas 
                            Turbine Engines)

87.10 Applicability.
87.11 Standard for fuel venting emissions.

     Subpart C_Exhaust Emissions (New Aircraft Gas Turbine Engines)

87.20 Applicability.
87.21 Standards for exhaust emissions.

    Subpart D_Exhaust Emissions (In-Use Aircraft Gas Turbine Engines)

87.30 Applicability.
87.31 Standards for exhaust emissions.

Subparts E-F [Reserved]

Subpart G_Test Procedures for Engine Exhaust Gaseous Emissions (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 measuring gaseous 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 smoke exhaust 
          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 otherwise noted.



                      Subpart A_General Provisions



Sec. 87.1  Definitions.

    (a) As used in this part, all terms not defined herein shall have 
the meaning given them in the Act:
    Act means the Clean Air Act, as amended (42 U.S.C. 7401 et seq.).
    Administrator means the Administrator of the Environmental 
Protection Agency and any other officer or employee of the Environmental 
Protection Agency to whom authority involved may be delegated.
    Aircraft means any airplane for which a U.S. standard airworthiness 
certificate or equivalent foreign airworthiness certificate is issued.
    Aircraft engine means a propulsion engine which is installed in or 
which is manufactured for installation in an aircraft.
    Aircraft gas turbine engine means a turboprop, turbofan, or turbojet 
aircraft engine.
    Class TP means all aircraft turboprop engines.
    Class TF means all turbofan or turbojet aircraft engines or aircraft 
engines designed for applications that otherwise would have been 
fulfilled by turbojet and turbofan engines except engines of class T3, 
T8, and TSS.
    Class T3 means all aircraft gas turbine engines of the JT3D model 
family.
    Class T8 means all aircraft gas turbine engines of the JT8D model 
family.
    Class TSS means all aircraft gas turbine engines employed for 
propulsion of aircraft designed to operate at supersonic flight speeds.
    Commercial aircraft engine means any aircraft engine used or 
intended for use by an ``air carrier,'' (including those engaged in 
``intrastate air transportation'') or a ``commercial operator'' 
(including those engaged in ``intrastate

[[Page 6]]

air transportation'') as these terms are defined in the Federal Aviation 
Act and the Federal Aviation Regulations.
    Commercial aircraft gas turbine engine means a turboprop, turbofan, 
or turbojet commercial aircraft engine.
    Emission measurement system means all of the equipment necessary to 
transport and measure the level of emissions. This includes the sample 
system and the instrumentation system.
    Engine Model means all commercial aircraft turbine engines which are 
of the same general series, displacement, and design characteristics and 
are usually approved under the same type certificate.
    Exhaust emissions means substances emitted to the atmosphere from 
the exhaust discharge nozzle of an aircraft or aircraft engine.
    Fuel venting emissions means raw fuel, exclusive of hydrocarbons in 
the exhaust emissions, discharged from aircraft gas turbine engines 
during all normal ground and flight operations.
    In-use aircraft gas turbine engine means an aircraft gas turbine 
engine which is in service.
    New aircraft turbine engine means an aircraft gas turbine engine 
which has never been in service.
    Power setting means the power or thrust output of an engine in terms 
of kilonewtons thrust for turbojet and turbofan engines and shaft power 
in terms of kilowatts for turboprop engines.
    Rated output (rO) means the maximum power/thrust available for 
takeoff at standard day conditions as approved for the engine by the 
Federal Aviation Administration, including reheat contribution where 
applicable, but excluding any contribution due to water injection.
    Rated pressure ratio (rPR) means the ratio between the combustor 
inlet pressure and the engine inlet pressure achieved by an engine 
operating at rated output.
    Sample system means the system which provides for the transportation 
of the gaseous emission sample from the sample probe to the inlet of the 
instrumentation system.
    Secretary means the Secretary of Transportation and any other 
officer or employee of the Department of Transportation to whom the 
authority involved may be delegated.
    Shaft power means only the measured shaft power output of a 
turboprop engine.
    Smoke means the matter in exhaust emissions which obscures the 
transmission of light.
    Smoke number (SN) means the dimensionless term quantifying smoke 
emissions.
    Standard day conditions means standard ambient conditions as 
described in the United States Standard Atmosphere, 1976, (i.e., 
Temperature =15 [deg]C, specific humidity =0.00 kg/ H2 O/kg 
dry air, and pressure =101325 Pa.)
    Taxi/idle (in) means those aircraft operations involving taxi and 
idle between the time of landing roll-out and final shutdown of all 
propulsion engines.
    Taxi/idle (out) means those aircraft operations involving taxi and 
idle between the time of initial starting of the propulsion engine(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 in 
both upper and lower case:

CO Carbon Monoxide
FAA Federal Aviation Administration, Department of Transportation
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 the 
Administrator or the Secretary of testing and sampling methods, 
analytical, techniques, and related equipment not identical to those 
specified in this part. Before either approves or accepts any such 
alternate, equivalent, or otherwise nonidentical procedures or 
equipment, the Administrator or the Secretary shall consult with the 
other in determining whether or not the action requires rulemaking under 
sections 231 and 232 of the Clean Air Act, as amended, consistent with 
the Administrator's and the Secretary's responsibilities under sections 
231 and 232 of the Act. (42 U.S.C. 7571, 7572).
    (b) Under section 232 of the Act, the Secretary issues regulations 
to insure compliance with this part.
    (c) With respect to aircraft of foreign registry, these regulations 
shall apply in a manner consistent with any obligation assumed by the 
United States in any treaty, convention or agreement between the United 
States and any foreign country or foreign countries.



Sec. 87.4  [Reserved]



Sec. 87.5  Special test procedures.

    The Administrator or the Secretary may, upon written application by 
a manufacturer or operator of aircraft or aircraft engines, approve test 
procedures for any aircraft or aircraft engine that is not susceptible 
to satisfactory testing by the procedures set forth herein. Prior to 
taking action on any such application, the Administrator 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 the 
Secretary determines that an emission standard cannot be met within the 
specified time without creating a safety hazard.



Sec. 87.7  Exemptions.

    (a) Exemptions based on flights for short durations at infrequent 
intervals. The emission standards of this part do not apply to engines 
which power aircraft operated in the United States for short durations 
at infrequent intervals. Such operations are limited to:
    (1) Flights of an aircraft for the purpose of export to a foreign 
country, including any flights essential to demonstrate the integrity of 
an aircraft prior to its flight to a point outside the United States.
    (2) Flights to a base where repairs, alterations or maintenance are 
to be performed, or to a point of storage, and flights for the purpose 
of returning an aircraft to service.
    (3) Official visits by representatives of foreign governments.
    (4) Other flights the Secretary determines, after consultation with 
the Administrator, to be for short durations at infrequent intervals. A 
request for such a determination shall be made before the flight takes 
place.
    (b) Exemptions for very low production models. The emissions 
standards of this part do not apply to engines of very low total 
production after the date of applicability. For the purpose of this 
part, ``very low production'' is limited to a maximum total production 
for United States civil aviation applications of no more than 200 units 
covered by the same type certificate after January 1, 1984.
    (c) Exemptions for New Engines in Other Categories. The emissions 
standards of this part do not apply to engines for which the Secretary 
determines, with the concurrence of the Administrator, that application 
of any standard under Sec. 87.21 is not justified, based upon 
consideration of:
    (1) Adverse economic impact on the manufacturer.
    (2) Adverse economic impact on the aircraft and airline industries 
at large.
    (3) Equity in administering the standards among all economically 
competing parties.
    (4) Public health and welfare effects.
    (5) Other factors which the Secretary, after consultation with the 
Administrator, may deem relevant to the case in question.
    (d) Time Limited Exemptions for In Use Engines. The emissions 
standards of this part do not apply to aircraft or aircraft engines for 
time periods which the Secretary determines, with the concurrence of the 
Administrator, that any applicable standard under Sec. 87.11(a),

[[Page 8]]

Sec. 87.31(a), or Sec. 87.31(c), should not be applied based upon 
consideration of the following:
    (1) Documentation demonstrating that all good faith efforts to 
achieve compliance with such standard have been made.
    (2) Documentation demonstrating that the inability to comply with 
such standard is due to circumstances beyond the control of the owner or 
operator of the aircraft.
    (3) A plan in which the owner or operator of the aircraft shows that 
he will achieve compliance in the shortest time which is feasible.
    (4) Applications for a determination that any requirements of Sec. 
87.11(a), Sec. 87.31(a) or Sec. 87.31(c) do not apply shall be 
submitted in duplicate to the Secretary in accordance with procedures 
established by the Secretary.
    (e) The Secretary shall publish in the Federal Register the name of 
the organization to whom exemptions are granted and the period of such 
exemptions.
    (f) No state or political subdivision thereof may attempt to enforce 
a standard respecting emissions from an aircraft or engine if such 
aircraft or engine has been exempted from such standard under this 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 this 
section. The Director of the Federal Register approved the incorporation 
by reference as prescribed in 5 U.S.C. 552(a) and 1 CFR part 51. Anyone 
may inspect copies at the U.S. EPA, Air and Radiation Docket and 
Information Center, 1301 Constitution Ave., NW., Room B102, EPA West 
Building, Washington, DC 20460 or at the National Archives and Records 
Administration (NARA). For information on the availability of 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 lists material from the 
International Civil Aviation Organization that we have incorporated by 
reference. The first column lists the number and name of the material. 
The second column lists the sections of this part where we reference it. 
Anyone may purchase copies of these materials from the International 
Civil Aviation Organization, Document Sales Unit, 999 University Street, 
Montreal, Quebec, Canada H3C 5H7. Table 1 follows:

                 Table 1 of Sec.  87.8--ICAO Materials
------------------------------------------------------------------------
         Document number and name                 Part 87 reference
------------------------------------------------------------------------
International Civil Aviation Organization   87.8, 87.64, 87.71, 87.82,
 Annex 16, Environmental Protection,         87.89.
 Volume II, Aircraft Engine Emissions,
 Second Edition, July 1993, Including
 Amendment 3 of March 20, 1997 (as
 indicated in footnoted pages.).
------------------------------------------------------------------------

    (b) [Reserved]

[70 FR 69686, Nov. 17, 2005]



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



Sec. 87.10  Applicability.

    (a) The provisions of this subpart are applicable to all new 
aircraft gas turbines of classes T3, T8, TSS and TF equal to or greater 
than 36 kilonewton rated output, manufactured on or after January 1, 
1974, and to all in-use aircraft gas turbine engines of classes T3, T8, 
TSS and TF equal to or greater than 36 kilonewton rated output 
manufactured after February 1, 1974.
    (b) The provisions of this subpart are also applicable to all new 
aircraft gas turbines of class TF less than 36 kilonewton rated output 
and class TP manufactured on or after January 1, 1975 and to all in-use 
aircraft gas turbines of class TF less than 36 kilonewton rated output 
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 the 
atmosphere from any new or in-use aircraft gas turbine engine subject to 
the subpart. This paragraph is directed at the elimination of 
intentional discharge to the atmosphere of fuel drained from fuel

[[Page 9]]

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



     Subpart C_Exhaust Emissions (New Aircraft Gas Turbine Engines)



Sec. 87.20  Applicability.

    The provisions of this subpart are applicable to all aircraft gas 
turbine engines of the classes specified beginning on the dates 
specified.



Sec. 87.21  Standards for exhaust emissions.

    (a) Exhaust emissions of smoke from each new aircraft gas turbine 
engine of class T8 manufactured on or after February 1, 1974, shall not 
exceed: Smoke number of 30.
    (b) Exhaust emissions of smoke from each new aircraft gas turbine 
engine of class TF and of rated output of 129 kilonewtons thrust or 
greater, 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 turbine 
engine of class T3 manufactured on or after January 1, 1978, shall not 
exceed: Smoke number of 25.
    (d) Gaseous exhaust emissions from each new commercial aircraft gas 
turbine engine shall not exceed:
    (1) Classes TF, T3, T8 engines greater than 26.7 kilonewtons rated 
output:
    (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 manufacture of 
the first individual production model was on or before December 31, 1995 
and for which the date of manufacture of the individual engine was 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 manufacture of 
the first individual production model was after December 31, 1995 or for 
which the date of manufacture of the individual engine was after 
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 manufacture of 
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 89 kilonewtons:
    Oxides of Nitrogen: (19 + 1.6(rPR)) grams/kilonewtons rO.
    (2) Engines with a maximum rated output greater than 26.7 
kilonewtons but not greater than 89 kilonewtons:
    Oxides of Nitrogen: (37.572 + 1.6(rPR) - 0.2087(rO)) grams/
kilonewtons rO.
    (B) Engines with a rated pressure ratio greater than 30 but less 
than 62.5:
    (1) Engines with a maximum rated output greater than 89 kilonewtons:
    Oxides of Nitrogen: (7 + 2(rPR)) grams/kilonewtons rO.
    (2) Engines with a maximum rated output greater than 26.7 
kilonewtons but not greater than 89 kilonewtons:
    Oxides of Nitrogen: (42.71 + 1.4286(rPR) - 0.4013(rO) + 0.00642(rPR 
x rO)) grams/kilonewtons rO.
    (C) Engines with a rated pressure ratio of 62.5 or more:
    Oxides of Nitrogen: (32 + 1.6(rPR)) grams/kilonewtons rO.
    (vii) The emission standards prescribed in paragraph (d)(1)(vi) of 
this 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 of the 
classes specified below shall not exceed:
    (1) Class TF of rated output less than 26.7 kilonewtons manufactured 
on or after (one year from date of publication):

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

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

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

    (3) Class TP of rated output equal to or greater than 1,000 
kilowatts 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 sample 
representing the operating cycles set forth in the applicable sections 
of subpart G of this part, and exhaust smoke emissions emitted during 
operations of the engine as specified in the applicable sections of 
subpart H of this part, measured and calculated in accordance with the 
procedures 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 Turbine Engines)



Sec. 87.30  Applicability.

    The provisions of this subpart are applicable to all in-use aircraft 
gas turbine engines certified for operation within the United States 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 gas turbine 
engine of Class T8, beginning February 1, 1974, shall not exceed: Smoke 
number of 30.
    (b) Exhaust emissions of smoke from each in-use aircraft gas turbine 
engine of class TF and of rated output of 129 kilonewtons thrust 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 this 
section refer to exhaust smoke emissions emitted during operations of 
the engine as specified in the applicable section of subpart H of this 
part, and measured and calculated in accordance with the procedures set 
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 Gaseous Emissions (Aircraft 
                    and Aircraft Gas Turbine Engines)



Sec. 87.60  Introduction.

    (a) Except as provided under Sec. 87.5, the procedures described in 
this subpart shall be the test program to determine the conformity of 
new aircraft gas turbine engines with the applicable standards set forth 
in this part.
    (b) The test consists of operating the engine at prescribed power 
settings on an engine dynamometer (for engines producing primarily shaft 
power) or thrust measuring test stand (for engines producing primarily 
thrust). The exhaust gases generated during engine operation are sampled 
continuously for specific component analysis through the analytical 
train.
    (c) The exhaust emission test is designed to measure hydrocarbons, 
carbon monoxide, carbon dioxide, and oxides of nitrogen concentrations, 
and to determine mass emissions through calculations during a simulated 
aircraft landing-takeoff cycle (LTO). The LTO cycle is based on time in 
mode data during high activity periods at major airports. The test for 
propulsion engines consists of at least the following four modes of 
engine operation: taxi/idle, takeoff, climbout, and approach. The mass 
emission for the modes are combined to yield the reported values.
    (d) When an engine is tested for exhaust emissions on an engine 
dynamometer or test stand, the complete

[[Page 11]]

engine shall be used with all accessories which might reasonably be 
expected to influence emissions to the atmosphere installed and 
functioning, if not otherwise prohibited by Sec. 87.62(a)(2). Use of 
service air bleed and shaft power extraction to power auxiliary gearbox-
mounted components required to drive aircraft systems is not permitted.
    (e) Other gaseous emissions measurement systems may be used if shown 
to yield equivalent results and if approved in advance by the 
Administrator 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 specifications listed 
in this section shall be used. Additives used for the purpose of smoke 
suppression (such as organometallic compounds) shall not be present.

                 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 engine 
operating modes which simulate aircraft operation to determine its mass 
emission rates. The actual power setting, when corrected to standard day 
conditions, should correspond to the following percentages of rated 
output. Analytical correction for variations from reference day 
conditions and minor variations in actual power setting should 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 power 
setting of 7% rated thrust unless the Secretary determines that the 
unique characteristics of an engine model undergoing certification 
testing at 7% would result in substantially different HC and CO 
emissions than if the engine model were tested at the manufacturers 
recommended idle power setting. In such cases the Secretary shall 
specify 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 engines which 
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 exhaust 

emissions.

    The system and procedures for sampling and measurement of gaseous 
emissions 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 aircraft engine 
shall be determined by comparing the pollutant level in grams/
kilonewton/thrust/cycle or grams/kilowatt/cycle as

[[Page 12]]

calculated in Sec. 87.64 with the applicable emission standard under 
this part. An acceptable alternative to testing every engine is 
described in Appendix 6 to ICAO Annex 16 (incorporated by reference in 
Sec. 87.8). Other methods of demonstrating compliance may be approved 
by the Secretary with the concurrence of the 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 procedures described in 
this subpart shall be the test program to determine the conformity of 
new and in-use gas turbine engines with the applicable standards set 
forth in this part. The test is essentially the same as that described 
in Sec. Sec. 87.60 through 87.62, except that the test is designed to 
determine the smoke emission level at various operating points 
representative of engine usage in aircraft. Other smoke measurement 
systems may be used if shown to yield equivalent results and if approved 
in advance by the Administrator or the Secretary.



Sec. 87.81  Fuel specifications.

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



Sec. 87.82  Sampling and analytical procedures for measuring smoke exhaust 

emissions.

    The system and procedures for sampling and measurement of smoke 
emissions 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 determined by 
comparing the plot of SN as a function of power setting with the 
applicable emission standard under this part. The SN at every power 
setting must be such that there is a high degree of confidence that the 
standard will not be exceeded by any engine of the model being tested. 
An acceptable alternative to testing every engine is described in 
Appendix 6 to ICAO Annex 16 (incorporated by reference in Sec. 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 emission standards for light-duty 
          vehicles and light-duty trucks.
88.105-94 Clean-fuel fleet emission standards for heavy-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 Pilot Test Program.
88.205-94 California Pilot Test Program Credits Program.
88.206-94 State opt-in for the California Pilot Test Program.

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 labeling requirements for heavy-duty 
          vehicles.
88.306-94 Requirements for a converted vehicle to qualify as a clean-
          fuel fleet vehicle.
88.307-94 Exemption from temporal transporation control measures for 
          CFFVs.
88.308-94 Programmatic requirements for clean-fuel fleet 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 of Inherently 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 otherwise noted.



          Subpart A_Emission Standards for Clean-Fuel Vehicles



Sec. 88.101-94  General applicability.

    The clean-fuel vehicle standards and provisions of this subpart are 
applicable to vehicles used in subpart B of this part (the Clean Fuel 
Fleet Program) and subpart C of this part (the California Pilot Test 
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 part 
shall have the meaning given them in 40 CFR part 86, subpart A.
    Adjusted Loaded Vehicle Weight is defined as the numerical average 
of the vehicle curb weight and the GVWR.
    Dual Fuel Vehicle (or Engine) means any motor vehicle (or motor 
vehicle engine) engineered and designed to be operated on two different 
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 on any mixture of 
two or more different fuels.
    Heavy Light-Duty Truck means any light-duty truck rated greater than 
6000 lbs. GVWR.
    Light Light-Duty Truck means any light-duty truck rated through 6000 
lbs GVWR.
    Loaded Vehicle Weight is defined as the curb weight plus 300 lbs.
    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 applicable Low-
Emission Vehicle standard.
    Non-methane Hydrocarbon Equivalent means the sum of the carbon mass 
emissions of non-oxygenated non-methane hydrocarbons plus the carbon 
mass emissions of alcohols, aldehydes, or other organic compounds which 
are separately measured in accordance with the applicable test 
procedures of 40 CFR part 86, expressed as gasoline-fueled vehicle non-
methane hydrocarbons. In the case of exhaust emissions, the hydrogen-to-
carbon ratio of the equivalent hydrocarbon is 1.85:1. In the case of 
diurnal and hot soak emissions, the hydrogen-to-carbon ratios of the 
equivalent hydrocarbons are 2.33:1 and 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 and the 
GVWR.
    Transitional Low-Emission Vehicle means any light-duty vehicle or 
light-duty truck conforming to the applicable Transitional Low-Emission 
Vehicle standard.
    Ultra Low-Emission Vehicle means any light-duty vehicle or light-
duty truck conforming to the applicable Ultra Low-Emission Vehicle 
standard, or any heavy-duty vehicle with an engine conforming to 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-Emission 
Vehicle standard.

[57 FR 60046, Dec. 17, 1992. Redesignated and amended at 59 FR 50074, 
Sept. 30, 1994]



Sec. 88.103-94  Abbreviations.

    The abbreviations of part 86 also apply to this subpart. The 
abbreviations 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 FR 50074, 
Sept. 30, 1994]



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

vehicles and light-duty trucks.

    (a) A light-duty vehicle or light-duty truck will be considered as a 
TLEV, LEV, ULEV, or ZEV if it meets the applicable requirements of this 
section.
    (b) Light-duty vehicles certified to the exhaust emission standards 
for TLEVs, LEVs, and ULEVs in Tables A104-1 and A104-2 shall be 
considered as meeting the requirements of this section for that 
particular vehicle emission category for model years 1994-2000 for the 
California Pilot Program.
    (c) Light-duty vehicles certified to the exhaust emission standards 
for LEVs and ULEVs in Tables A104-1 and A104-2 shall be considered as 
meeting the requirements of this section for that particular vehicle 
emission category for model years 2001 and later for the California 
Pilot Program, and for model years 1998 and later for the Clean Fuel 
Fleet Program.
    (d) Light light-duty trucks certified to the exhaust emission 
standards for a specific weight category for TLEVs, LEVs, and ULEVs in 
Tables A104-3 and A104-4 shall be considered as meeting the requirements 
of this section for that particular vehicle emission category. For model 
years 1994-2000 for the California Pilot Program.
    (e) Light Light-duty trucks certified to the exhaust emission 
standards for a specific weight category for LEVs and ULEVs in Tables 
A104-3 and A104-4 shall be considered as meeting the requirements of 
this section for that particular vehicle emission category. For model 
years 2001 and later for the California Pilot Program, and for model 
years 1998 and later for the Clean Fuel Fleet Program.
    (f) Heavy light-duty trucks certified to the exhaust emission 
standards for a specific weight category of LEVs and ULEVs in Tables 
A104-5 and A104-6 for model years 1998 and later shall be considered as 
meeting the requirements of this section for that particular vehicle 
emission category.
    (g) A light-duty vehicle or light-duty truck shall be certified as a 
ZEV if it is determined by engineering analysis that the vehicle 
satisfies the following conditions:
    (1) The vehicle fuel system(s) must not contain either carbon or 
nitrogen compounds (including air) which, when burned, form any of the 
pollutants listed in Table A104-1 as exhaust emissions.
    (2) All primary and auxiliary equipment and engines must have no 
emissions of any of the pollutants listed in Table A104-1.
    (3) The vehicle fuel system(s) and any auxiliary engine(s) must have 
no evaporative emissions in use.
    (4) Any auxiliary heater must not operate at ambient temperatures 
above 40 degrees Fahrenheit.
    (h) NMOG standards for flexible- and dual-fueled vehicles when 
operating on clean alternative fuel--(1) Light-duty vehicles, and light 
light-duty trucks. Flexible- and dual-fueled LDVs and light LDTs of 1996 
model year and later shall meet all standards in Table A104-7 for 
vehicles of the applicable model year, loaded vehicle weight, and 
vehicle emission category.
    (2) Light-duty trucks above 6,000 lbs GVWR. Flexible- and dual-
fueled LDTs above 6,000 lbs. GVWR of 1998 model year and later shall 
meet all standards in Table A104-8 for vehicles of the applicable test 
weight and vehicle emission category.
    (i) NMOG standards for flexible- and dual-fueled vehicles when 
operating on conventional fuel--(1) Light-duty vehicles, and light 
light-duty trucks. Flexible- and dual-fueled LDVs and light LDTs of 1996 
model year and later shall meet all standards in Table A104-9 for 
vehicles of the applicable model year, loaded vehicle weight, and 
vehicle emission category.
    (2) Light-duty trucks above 6,000 lbs GVWR. Flexible- and dual-
fueled LDTs of 1998 model year and later shall meet all standards in 
Table A104-10 for vehicles of the applicable test weight and vehicle 
emission category.
    (j) Other standards for flexible- and dual-fueled vehicles. When 
operating on clean alternative fuel, flexible- and dual- fueled light-
duty vehicles and light light-duty trucks must also meet

[[Page 15]]

the appropriate 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 standards 
and requirements. When operating on conventional fuel, flexible- and 
dual-fueled vehicles must also meet all other applicable standards and 
requirements in 40 CFR part 86.
    (k) Motor vehicles subject to standards and requirements of this 
section shall also comply with all applicable standards and requirements 
of 40 CFR part 86, except that any exhaust emission standards in 40 CFR 
part 86 pertaining to pollutants for which standards are established in 
this section shall not apply. For converted vehicles, the applicable 
standards and requirements of 40 CFR part 86 and this part 88 shall 
apply based on the model year in which the conversion is performed, 
regardless of the model year in which the base vehicle was originally 
manufactured prior to conversion.
    (1) Gaseous-fueled, diesel-fueled, and electric clean-fuel vehicles 
are waived from cold CO test requirements of subpart C of this part if 
compliance is demonstrated by engineering analysis or test data.
    (2) The standards in this section shall be administered and enforced 
in accordance with the California Regulatory Requirements Applicable 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 Director of 
the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 
51.
    (ii) Copies may be inspected at U.S. EPA, OAR, 401 M St., SW., 
Washington, DC 20460, or at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material 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 obtained from Barclay's Law Publishers, 
400 Oyster Point Boulevard, P.O. Box 3066, South San Francisco, CA 
94080, phone (415) 244-6611.

                        Tables to Sec. 88.104-94

 Table A104-1--Intermediate Useful 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..............................        0.125          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--Full Useful 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.


 Table A104-3--Intermediate Useful Life Standards (g/mi) for Light 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--Full Useful Life Standards (g/mi) for Light Light-Duty Trucks for HCs, CO, NOX. HCHO, and PM
----------------------------------------------------------------------------------------------------------------
                            Vehicle emission
       LVW (lbs)                category             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.


 Table A104-5--Intermediate Useful Life Standards (g/mi) for Heavy 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\ 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--Full Useful Life Standards (g/mi) for Heavy Light-Duty Trucks for HCs, CO, NOX. HCHO, and PM
----------------------------------------------------------------------------------------------------------------
                            Vehicle emission
       ALVW (lbs)               category             NMOG          CO          NOX          HCHO        PM\1\
----------------------------------------------------------------------------------------------------------------
0-3750.................  LEV...................    \2\ 0.180      \2\ 5.0          0.6    \2\ 0.022     \2\ 0.08
                         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 Clean Alternative Fuel for Light Light-Duty
                     Trucks and Light-Duty Vehicles
------------------------------------------------------------------------
                                                50,000 mile    100,000
                 Vehicle type                       NMOG      mile NMOG
                                                  standard     standard
------------------------------------------------------------------------
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 Clean Alternative 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 on Conventional Fuel for Light Light-Duty Trucks
                         and Light-Duty Vehicles
------------------------------------------------------------------------
                                                50,000 mile    100,000
                 Vehicle type                       NMOG      mile NMOG
                                                  standard     standard
------------------------------------------------------------------------
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 on Conventional 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 emission 
vehicles shall meet one of the following standards:
    (1) Combined emissions of oxides of nitrogen and nonmethane 
hydrocarbons (or nonmethane hydrocarbon equivalent) shall not exceed 3.8 
grams per brake horsepower-hour.
    (2) Combined emissions of oxides of nitrogen and nonmethane 
hydrocarbons (or nonmethane hydrocarbon equivalent) shall not exceed 3.5 
grams per brake horsepower-hour when tested (certified) on fuel meeting 
the specifications of California certification fuel.
    (b) Exhaust emissions from engines used in heavy-duty low emission 
vehicles shall meet conventional vehicle standards set forth in Part 86 
for total hydrocarbon, carbon monoxide, particulate, and organic 
material hydrocarbon equivalent.
    (c) Exhaust emissions from engines used in ultra-low emission heavy-
duty vehicles shall meet each of the following standards:
    (1) The combined emissions of oxides of nitrogen and nonmethane 
hydrocarbons (or nonmethane hydrocarbon equivalent) shall not exceed 2.5 
grams per brake horsepower-hour.
    (2) Carbon monoxide emissions shall not exceed 7.2 grams per brake 
horsepower-hour.
    (3) Particulate emissions shall not exceed 0.05 grams per brake 
horsepower-hour.
    (4) Formaldehyde emissions shall not exceed 0.025 grams per brake 
horsepower-hour.
    (d) Exhaust emissions from engines used in inherently-low emission 
heavy-duty vehicles shall meet each of the following standards:

[[Page 18]]

    (1) The combined emissions of oxides of nitrogen and nonmethane 
hydrocarbons (or nonmethane hydrocarbon equivalent) shall not exceed 2.5 
grams per brake horsepower-hour.
    (2) Carbon monoxide emissions shall not exceed 14.4 grams per brake 
horsepower-hour.
    (3) Particulate emissions shall not exceed 0.10 grams per brake 
horsepower-hour.
    (4) Formaldehyde emissions shall not exceed 0.05 grams per brake 
horsepower-hour.
    (e) The standards set forth in paragraphs (a), (b), (c), and (d) of 
this section refer to the exhaust emitted while the vehicle is being 
tested in accordance with the applicable test procedures set forth in 40 
CFR part 86, subpart N.
    (f)(1) A heavy-duty zero-emission vehicle (ZEV) has a standard of 
zero emissions for nonmethane hydrocarbons, oxides of nitrogen, carbon 
monoxide, formaldehyde, and particulates.
    (2) A heavy-duty vehicle shall be certified as a ZEV if it is 
determined by engineering analysis that the vehicle satisfies the 
following conditions:
    (i) The vehicle fuel system(s) must not contain either carbon or 
nitrogen compounds (including air) which, when burned, form nonmethane 
hydrocarbons, oxides of nitrogen, carbon monoxide, formaldehyde, or 
particulates as exhaust emissions.
    (ii) All primary and auxiliary equipment and engines must have no 
emissions of nonmethane hydrocarbons, oxides of nitrogen, carbon 
monoxide, formaldehyde, and particulates.
    (iii) The vehicle fuel system(s) and any auxiliary engine(s) must 
have no evaporative emissions.
    (iv) Any auxiliary heater must not operate at ambient temperatures 
above 40 degrees Fahrenheit.
    (g) All heavy-duty engines used in low emission, ultra-low emission, 
or zero emission vehicles shall also comply with all applicable 
standards and requirements of 40 CFR part 86, except that any exhaust 
emission standards in 40 CFR part 86 pertaining to pollutants for which 
standards are established in this section shall not 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 apply to the 
following:
    (a) State Implementation Plan revisions for the State of California 
and other states pursuant to compliance with section 249 of the 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 the 
1992 model year.
    Averaging for clean-fuel vehicles means the sale of clean-fuel 
vehicles that meet more stringent standards than required, which allows 
the manufacturer to sell fewer clean-fuel vehicles than would otherwise 
be required.
    Banking means the retention of credits, by the manufacturer 
generating the emissions credits, for use in future model-year 
certification as permitted by regulation.
    Sales means vehicles that are produced, sold, and distributed (in 
accordance with normal business practices and applicable franchise 
agreements) in the State of California, including owners of covered 
fleets under subpart C of part 86 of this chapter. The manufacturer can 
choose at their option from one of the following three 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 a 
dealer, distributer, fleet operator, broker, or any other entity which 
comprises the first point of sale.
    (iii) Sales is defined as equivalent to the production of vehicles 
for the state of California. This option can be revoked if it is 
determined that the production and actual sales numbers do not exhibit a 
functional equivalence

[[Page 19]]

per the language of Sec. 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 86 
apply 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 clean fuel 
vehicles in California for this program shall correspond to Table B204.
    (b) (1) When manufacturers of vehicles subject to the regulations of 
this section file a report pursuant to 40 CFR 86.085-37(b), such report 
shall include the following information: the number of light-duty 
vehicles and light-duty trucks sold only in California, and the number 
of clean-fuel vehicles sold for the Pilot program beginning with model 
year 1996.
    (2) For model years 1996 and 1997, manufacturers may exclude heavy 
light-duty trucks from the reporting required by this section.
    (c) (1) Except as provided in paragraph (d) of this section, each 
vehicle manufacturer must sell clean-fuel vehicles in California in an 
amount equal to the required annual sales volume calculated in paragraph 
(c)(2) of this section.
    (2) The required annual clean fuel vehicle sales volume for a given 
manufacturer is expressed in the following equation rounded to the 
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 sales in 
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 sales in 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 of all 
manufacturers three and four model years earlier than the year in 
question (for MY 1996 and 1997 RMS calculations). Sales of manufacturers 
which meet the criteria of (d) of this paragraph will not be included.
 = the average of total LDV and LDT sales in California of all 
manufacturers three and four model years earlier than the year in 
question (for MY 1998 and later RMS calculations). Sales of 
manufacturers which meet the criteria of (d) of this paragraph will not 
be included.
TCPPS = Pilot program annual CFV sales requirement (either 150,000 or 
300,000) for the model year in question.

    (i) A manufacturer's share of required annual sales for model years 
1996 and 1997 will be based on LDV and light LDT sales only. Once the 
heavy LDT standards are effective beginning with model year 1998, a 
manufacturer's required sales share will be based on all LDV and LDT 
sales.
    (ii) A manufacturer certifying for the first time in California 
shall calculate annual required sales share based on projected 
California sales for the model year in question. In the second year, the 
manufacturer shall use actual sales from the previous year. In the third 
year, the manufacturer will use sales from two model years prior to the 
year in question. In the fourth year, the manufacturer will use sales 
from three years prior to the year in question. In the fifth year and 
subsequent years, the manufacturer will use average sales from three and 
four years prior to the year in question.
    (d) (1) Small volume manufacturer is defined in the Pilot program as 
one whose average annual LDV and LDT sales in California are less than 
or equal to 3,000 units during a consecutive three-year period beginning 
no earlier than model year 1993.
    (i) A manufacturer with less than three consecutive years of sales 
in California shall use a single year of sales or, if available, the 
average of two years of sales in California to determine whether they 
fall at or below the threshold of 3,000 units.
    (ii) A manufacturer certifying for the first time in California 
shall be considered a small volume manufacturer if their projected 
California sales level is at or below 3,000 units for a given year. Once 
the manufacturer has actual sales data for one year, this actual sales

[[Page 20]]

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

            Table B204--Pilot Program Vehicle Sales Schedule
------------------------------------------------------------------------
                                                                Required
             Model years                   Vehicle types         annual
                                                                 sales
------------------------------------------------------------------------
1996 and 1997.......................  LDTs (<6000 GVWR and       150,000
                                       <=5750 LVW); and LDVs.
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 this credit 
program to enable vehicle manufacturers who are required to participate 
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 applicable emission 
standards and other requirements contained in subpart A of this part.
    (b) Credit generation. (1) Credits may be generated by any of the 
following means:
    (i) Sale of qualifying clean-fuel vehicles earlier than required. 
Manufacturers may earn these credits starting with the 1992 model year, 
contingent upon the requirements of paragraph (g) of this section.
    (ii) Sale of a greater number of qualifying clean-fuel vehicles than 
required.
    (iii) Sale of qualifying clean-fuel vehicles that meet more 
stringent emission standards than those required.
    (2) For light-duty vehicles and light-duty trucks, credit values 
shall be determined in accordance with the following:
    (i) For model-years through 2000, credit values shall be determined 
in accordance with table B-1 of this subpart.
    (ii) For the 2001 and subsequent model-years, credit values shall be 
determined according to table B-2 of this subpart. The sale of light-
duty vehicles classified as Transitional Low-Emission Vehicles 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 which sold 
vehicles count toward compliance with the sales requirement. The 
remaining balance of vehicles will be considered as sold beyond the 
sales requirement for credit calculations.
    (3) Vehicles greater than 8500 lbs gvwr may not generate credits.
    (c) Credit use. (1) All credits generated in accordance with these 
provisions may be freely averaged, traded, or banked for later use. 
Credits may not be used to remedy any nonconformity determined by 
enforcement 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 partial 
compliance 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 shall 
surrender credits equal to the credit value for the corresponding 
vehicle class and model year found in table B-1.3 or table B-2.3 of this 
subpart.
    (d) Participation in the credit program. (1) During certification, 
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 must 
demonstrate:

[[Page 21]]

    (i) That at the end of the model-year production, there is a net 
vehicle credit balance of zero or more with any credits obtained from 
averaging, trading, or banking.
    (ii) It is recommended but not required that the source of the 
credits to be used to comply with the minimum sales requirements be 
stated. All such reports should include all credits involved in 
averaging, trading, or banking.
    (3) During the model year, manufacturers must:
    (i) Monitor projected versus actual production to be certain that 
compliance with the sales requirement is achieved at the end of the 
model year.
    (ii) Provide the end of model year reports required under this 
subpart.
    (iii) Maintain the records required under this subpart.
    (4) Projected credits based on information supplied in the 
certification application may be used to obtain a certificate of 
conformity. However, any such credits may be revoked based on review of 
end-of-model year reports, follow-up audits, and any other verification 
steps deemed appropriate by the Administrator.
    (5) Compliance under averaging, banking, and trading will be 
determined at the end of the model year.
    (6) If EPA or the manufacturer determines that a reporting error 
occurred on an end-of-year report previously submitted to EPA under this 
section, the manufacturer's credits and credit calculations will be 
recalculated.
    (i) If EPA review of a manufacturer's end-of-year report indicates 
an inadvertent credit shortfall, the manufacturer will be permitted to 
purchase 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 the manufacturer's 
favor (i.e., resulting in a positive credit balance) or if the 
manufacturer discovers such an error within 90 days of EPA receipt of 
the end-of-year report, the credits will be restored for use 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 this program, credits 
can be banked starting in the 1992 model year.
    (ii) A manufacturer may bank credits only after the end of the model 
year and after EPA has reviewed its end-of-year report. During the model 
year and before submittal of the end-of-year report, credits originally 
designated in the certification process for banking will be considered 
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 maintain their original 
value for an infinite period of time.
    (ii) A manufacturer withdrawing banked credits shall indicate so 
during certification and in its credit reports.
    (3) Banked credits may be used in averaging, trading, or in any 
combination thereof, during the certification period. Credits declared 
for banking from the previous model year but unreviewed by EPA may also 
be used. However, they may be revoked at a later time following EPA 
review of the end-of-year report or any subsequent audit actions.
    (g) Early credits. Beginning in model year 1992 appropriate credits, 
as determined from the given credit table, will be given for the sale of 
vehicles certified to the clean-fuel vehicle standards for TLEVs, LEVs, 
ULEVs, and ZEVs, where appropriate. For LDVs and light LDTs (<6000 lbs 
GVWR), early credits can be earned from model year 1992 to the beginning 
of the Pilot Program sales requirements in 1996. For heavy LDTs 
(6000 lbs GVWR), early credits can be earned from model years 
1992 through 1997. The actual calculation of early credits shall 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 or 
part of an ozone nonattainment area classified as serious, severe, or 
extreme under subpart D of Title I.
    (b) A state may opt into the program by submitting SIP revisions 
that meet the requirements of this section.

[[Page 22]]

    (c) For a state that chooses to opt in, SIP provisions can not take 
effect until one year after the state has provided notice to of such 
provisions to motor vehicle manufacturers and fuel suppliers.
    (d) A state that chooses to opt into the program can not require a 
sales or production mandate for CFVs or clean alternative fuels. States 
may not subject fuel or vehicle suppliers to penalties or sanctions for 
failing to produce or sell CFVs or clean alternative fuels.
    (e) (1) A state's SIP may include incentives for the sale or use in 
such state of CFVs required in California by the Clean Fuel Fleet 
Program, and the use of clean alternative fuels required to be made 
available in California by the California Pilot Program.
    (2) Incentives may include:
    (i) A registration fee on non-CFVs of at least 1 percent of the 
total cost of the vehicle. These fees shall be used to:
    (A) Provide financial incentives to purchasers of CFVs and vehicle 
dealers 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 trip 
reduction 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 Table for Phase I Vehicle Equivalents for Light-Duty Vehicles and Light-Duty Trucks
                 Table B-1.1--Credit Generation: Selling More Clean-Fuel Vehicles Than Required
                                  [Phase I: Effective Through 2000 Model-Year]
----------------------------------------------------------------------------------------------------------------
                                                                                  LDT  <=6000
                                      LDV & LDT     LDT  <=6000    LDT  <=6000   gvwr  3750 alvw    gvwr  3750 lvw    <=3750 alvw    <=5750 alvw      eq>5750 alvw
                                                     <=5750 lvw
----------------------------------------------------------------------------------------------------------------
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--Credit Generation: Selling More Stringent Clean Fuel Vehicles
----------------------------------------------------------------------------------------------------------------
                                                                                     LDT  6000 gvwr   LDT  <=6000
         Vehicle emission  category          <=6000 gvwr      gvwr         gvwr       <=3750 alvw        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 Needed in 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   5750
                                      <=3750 lvw   <=5750 lvw                         alvw             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--Credit Table for Phase II: Vehicle Equivalents for Light-Duty Vehicles and Light-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--Credit Generation: Selling More Stringent Clean-Fuel Vehicles
----------------------------------------------------------------------------------------------------------------
                                                                                 LDT  6000 gvwr     eq>6000 gvwr
       Vehicle emission  category        <=6000 gvwr      gvwr         gvwr       <=3750 alvw    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 Needed in 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   5750
                                  <=3750 lvw     <=5750 lvw                           alvw             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 otherwise noted.



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 made 
pursuant 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 United 
States that are subject to the fleet programs established by a state's 
SIP revision.
    (b) The requirements of Sec. Sec. 88.302-93, 88.303-93, 88.311-93, 
88.312-93, and 88.313-93 of this part apply to fleets which voluntarily 
purchase and operate Inherently Low-Emission Vehicles (ILEVs).
    (c) References in this subpart to engine families and emission 
control systems shall be deemed to refer to durability groups and test 
groups as applicable for manufacturers certifying new light-duty 
vehicles 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 to this 
subpart. The definitions in this section apply to this subpart.
    Combination heavy-duty vehicle means a vehicle with a GVWR greater 
than 8,500 pounds (3,900 kilograms) which is comprised of a truck-
tractor and one or more pieces of trailered equipment. The truck-tractor 
is a self-propelled motor vehicle built on one chassis which encompasses 
the engine, passenger compartment, and a means of coupling to a cargo 
carrying trailer(s). The truck-tractor itself is not designed to carry 
cargo.
    Inherently Low-Emission Vehicle means any LDV or LDT conforming to

[[Page 24]]

the applicable Inherently Low-Emission Vehicle standard, or any HDV with 
an engine conforming to the applicable Inherently Low-Emission Vehicle 
standard. No dual-fuel or flexible-fuel vehicles shall be considered 
Inherently Low-Emission Vehicles unless they are certified to the 
applicable standard(s) on all fuel types for which they are designed to 
operate.
    Partially-Covered Fleet pertains to a vehicle fleet in a covered 
area which contains both covered fleet vehicles and non-covered fleet 
vehicles, i.e., exempt from covered fleet purchase requirements.
    Single-unit heavy-duty vehicle means a self-propelled motor vehicle 
with a GVWR greater than 8,500 pounds (3,900 kilograms) built on 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 part 86 also apply to 
this part. All terms used in this part, but not defined in this section 
or in Sec. 88.302-93 and 40 CFR part 86 shall have the meaning assigned 
to them in the Clean Air Act.
    Can be centrally fueled means the sum of those vehicles that are 
centrally fueled and those vehicles that are capable of being centrally 
fueled.
    (1) Capable of being centrally fueled means a fleet, or that part of 
a fleet, consisting of vehicles that could be refueled 100 percent of 
the time at a location that is owned, operated, or controlled by the 
covered fleet operator, or is under contract with the covered fleet 
operator. The fact that one or more vehicles in a fleet is/are not 
capable of being centrally fueled does not exempt an entire 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 a 
location that is owned, operated, or controlled by the covered fleet 
operator, or is under contract with the covered fleet operator. Any 
vehicle that is under normal operations garaged at home at night but 
that is, in fact, centrally fueled 100 percent of the time shall be 
considered to be centrally fueled for the purpose of this definition. 
The fact that one or more vehicles in a fleet is/are not centrally 
fueled does not exempt an entire fleet from the program. The fact that a 
vehicle is not centrally fueled does not mean it could not be centrally 
fueled in accordance with the definition of ``capable of being centrally 
fueled.''
    (3) Location means any building, structure, facility, or 
installation which; is owned or operated by a person, or is under the 
control of a person; is located on one or more contiguous properties and 
contains or could contain a fueling pump or pumps for the use of the 
vehicles owned or controlled by that person.
    Clean-fuel vehicle aftermarket conversion certifier means the 
business or entity that obtains a certificate of conformity with the 
clean-fuel vehicle standards and requirements for a vehicle/engine 
conversion configuration pursuant to the requirements of 40 CFR part 86 
and this part 88.
    Control means: (1) When it is used to join all entities under common 
management, means any one or a combination of the following:
    (i) A third person or firm has equity ownership of 51 percent or 
more in each of two or more firms;
    (ii) Two or more firms have common corporate officers, in whole or 
in substantial part, who are responsible for the day-to-day operation of 
the companies.
    (iii) One firm leases, operates, supervises, or in 51 percent or 
greater part owns equipment and/or facilities used by another person or 
firm, or has equity ownership of 51 percent or more of another firm.
    (2) When it is used to refer to the management of vehicles, means a 
person has the authority to decide who can operate a particular vehicle, 
and the purposes for which the vehicle can be operated.
    (3) When it is used to refer to the management of people, means a 
person has the authority to direct the activities of another person or 
employee in a precise situation, such as at the workplace.

[[Page 25]]

    Conversion configuration means any combination of vehicle/engine 
conversion hardware and a base vehicle of a specific engine family.
    Covered fleet operator means a person who operates a fleet of 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 (even if the 
covered fleet vehicles are garaged outside of it). For purposes of this 
definition, the vehicle types described in the definition of covered 
fleet (section 241(5) of the Act) as exempt from the program will not be 
counted toward the ten-vehicle criterion.
    Dealer demonstration vehicle means any vehicle that is operated by a 
motor vehicle dealer (as defined in section 216(4) of the Act) solely 
for the purpose of promoting motor vehicle sales, either on the sales 
lot or through other marketing or sales promotions, or for permitting 
potential purchasers to drive the vehicle for pre-purchase or pre-lease 
evaluation.
    Emergency vehicle means any vehicle that is legally authorized by a 
governmental authority to exceed the speed limit to transport people and 
equipment to and from situations in which speed is required to save 
lives or property, such as a rescue vehicle, fire truck, or ambulance.
    Law enforcement vehicle means any vehicle which is primarily 
operated by a civilian or military police officer or sheriff, or by 
personnel of the Federal Bureau of Investigation, the Drug Enforcement 
Administration, or other agencies of the federal government, or by state 
highway patrols, municipal law enforcement, or other similar law 
enforcement agencies, and which is used for the purpose of law 
enforcement activities including, but not limited to, chase, 
apprehension, surveillance, or patrol of people engaged in or 
potentially engaged in unlawful activities. For federal law enforcement 
vehicles, the definition contained in Executive Order 12759, 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 fleet purchase 
requirements, means September 1 through August 31.
    Motor vehicles held for lease or rental to the general public means 
a vehicle that is owned or controlled primarily for the purpose of 
short-term rental or extended-term leasing (with or without 
maintenance), without a driver, pursuant to a contract.
    New covered fleet vehicle means a vehicle that has not been 
previously controlled by the current purchaser, regardless of the model 
year, except as follows: Vehicles that were manufactured before the 
start of the fleet program for such vehicle's weight class, vehicles 
transferred due to the purchase of a company not previously controlled 
by the purchaser or due to a consolidation of business operations, 
vehicles transferred as part of an employee transfer, or vehicles 
transferred for seasonal requirements (i.e., for less than 120 days) are 
not considered new. States are permitted to discontinue the use of the 
fourth exception for fleet operators who abuse the discretion afforded 
them. This definition of new covered fleet vehicle is distinct from the 
definition of new vehicle as it applies to manufacturer certification, 
including the certification of vehicles to the clean fuel standards.
    Owned or operated, leased or otherwise controlled by such person 
means either of the following:
    (1) Such person holds the beneficial title to such vehicle; or
    (2) Such person uses the vehicle for transportation purposes 
pursuant to a contract or similar arrangement, the term of such contract 
or similar arrangement is for a period of 120 days or more, and such 
person has control over the vehicle pursuant to the definition 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 States and any 
officer, agent, or employee thereof.
    Under normal circumstances garaged at personal residence means a 
vehicle that, when it is not in use, is normally parked at the personal 
residence of the individual who usually operates it, rather than at a 
central refueling, maintenance, and/or business location. Such vehicles 
are not considered to be

[[Page 26]]

capable of being central fueled (as defined in this subpart) and are 
exempt from the program unless they are, in fact, centrally fueled.
    Vehicle used for motor vehicle manufacturer product evaluations and 
tests means a vehicle that is owned and operated by a motor vehicle 
manufacturer (as defined in section 216(1) of the Act), or motor vehicle 
component manufacturer, or owned or held by a university research 
department, independent testing laboratory, or other such evaluation 
facility, solely for the purpose of evaluating the performance 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 86 
apply to this subpart. The abbreviations in this section apply to this 
subpart.

    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 CFFV credit 
program to enable covered fleet owners/operators to meet the fleet 
vehicle purchase requirements of the CAA both by purchasing clean-fuel 
vehicles (CFVs) directly and by trading and banking CFFV credits for 
vehicle purchases.
    (2) All credit-generating vehicles must meet the applicable emission 
standards and other requirements contained in 40 CFR part 88, subpart A.
    (b) Program administration. (1)(i) Each state in which there is all 
or part of a covered area, as defined in CAA section 246(a)(2), shall 
promulgate regulations as necessary for implementing this requirement.
    (ii) The state shall submit a SIP revision before May 15, 1994 to 
the Administrator stipulating the specific mechanism by which the CFFV 
program is to be administered and enforced. The credit program shall 
commence upon EPA approval of the SIP in accordance with CAA section 
246(f)(5).
    (2) A fleet owner who purchases/leases a CFFV only to generate CFFV 
credit shall be subject to the same requirements of the state's CFFV 
program as a covered fleet owner who purchases/leases a CFFV to 
demonstrate compliance with covered fleet purchase requirements.
    (3) While in the covered area, a dual-fuel/flexible-fuel vehicle 
which a fleet owner purchases to comply with covered fleet purchase 
requirements must be operated at all times on the fuel(s) on which it 
was certified as a CFFV. If the fleet owner receives credit for a dual-
fuel/flexible-fuel vehicle purchase, the vehicle must be operated at the 
same emission level for which the vehicle generated CFFV credit.
    (c) Credit generation. (1) States shall grant CFFV credits to a 
covered fleet owner for any of the following qualifying CFFV purchases:
    (i) Purchase of a CFFV during any period subsequent to the approval 
of the SIP revision but prior to the effective date for commencement of 
a state's CFFV purchase requirement if the purchase meets all other CFFV 
requirements applicable to such purchases, including the statutory 
requirement to use only the fuel on which the vehicle was certified as a 
CFFV;
    (ii) Purchase of a greater number of CFFVs than is required under 
the SIP revision;
    (iii) Purchase of a CFFV which meets more stringent emission 
standards than required under the SIP revision; or
    (iv) Purchase of a CFFV in an exempt or non-covered vehicle category 
by the owner/operator of a covered or partially-covered fleet.
    (2) A state may retroactively grant CFFV credit(s) to a fleet owner 
for the purchase of a CFFV prior to the approval of the state's SIP 
revision if the purchase met all CFFV credit program requirements 
applicable to such purchases, including:
    (i) The vehicle purchased would have to have been certified to CFFV 
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 been 
operated only on the

[[Page 27]]

clean alternative fuel on which the vehicle had been certified as a 
CFFV.
    (3) For LDVs and LDTs, credit values shall be determined in 
accordance with Table C94-1. The state shall use Table C94-1 exclusively 
in determining LDV and LDT CFFV credit values. 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 Table 
C94-1, a state may specify in its SIP revision that Table C94-2 will be 
used to determine LDV and LDT CFFV credit values in one or more affected 
nonattainment areas. Any state choosing to do so must provide adequate 
justification, based on air quality benefits, at the time the SIP 
revision is submitted. If the use of Table C94-2 is approved by EPA, the 
State shall use Table C94-2 exclusively in determining LDV and LDT CFFV 
credit values for vehicles in the subject area or areas. Table C94-2.1 
applies to paragraphs (b)(1) (i), (ii) and (iv) of this section; Table 
C94-2.2 applies to paragraph (b)(1)(iii) of this section.
    (5) In lieu of determining credit values in accordance with Table 
C94-1, a state containing a carbon monoxide nonattainment area(s) having 
a design value above 16.0 parts per million may specify in its SIP 
revision that Table C94-3 will be used to determine LDV and LDT CFFV 
credit values in one or more affected nonattainment areas. Any state 
choosing to do so must provide adequate justification, based on air 
quality benefits, at the time the SIP revision is submitted. If the use 
of Table C94-3 is approved by EPA, the state shall use Table C94-3 
exclusively in determining LDV and LDT CFFV credit values for vehicles 
in the subject area or areas. 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 with 
Table C94-4. The state shall use Table C94-4 exclusively in determining 
heavy-duty vehicle CFFV credit values. Table C94-4.1 applies to 
paragraphs (c)(1) (i), (ii) and (iv) of this section, and Table C94-4.2 
applies to paragraph (c)(1)(iii) of this section.
    (7) In lieu of determining credit values in accordance with Table 
C94-4, a state containing a carbon monoxide nonattainment area(s) having 
a design value above 16 parts per million may specify in its SIP 
revision that Table C94-5 will be used to determine heavy-duty vehicle 
CFFV credit values in one or more affected nonattainment areas. Any 
state choosing to do so must provide adequate justification, based on 
air quality benefits, at the time the SIP revision is submitted. If the 
use of Table C94-5 is approved by EPA, the State shall use Table C94-5 
exclusively in determining heavy-duty vehicle CFFV credit values for 
vehicles in the subject area or 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 allow purchase of any 
clean-fuel single-unit or combination HDV with a GVWR greater than 
26,000 pounds (11,800 kilograms) to generate CFFV credit for the fleet 
vehicle purchaser.
    (ii) States must exclude from generating CFFV credit the purchase of 
any combination HDV with a GVWR greater than 26,000 pounds (11,800 
kilograms) which pays all or a portion of its fuel taxes, as evidenced 
by fuel tax stickers on the combination HDV, to a state(s) which is not 
part of that covered nonattainment area.
    (10) Light-duty CFFV credits. Credits generated by the purchase of a 
qualifying clean-fuel fleet LDV or a LDT shall be designated at the time 
of issuance as light-duty CFFV credits.
    (11) Heavy-duty CFFV credits. Credits generated by the purchase of a 
qualifying clean-fuel fleet HDV shall be designated at the time of 
issuance as heavy-duty CFFV credits. Further, credits generated by the 
purchase of a light heavy-duty or a medium heavy-duty qualifying CFFV 
shall be designated at the time of issuance as light heavy-duty and 
medium heavy-duty CFFV credits, respectively.

[[Page 28]]

    (d) Credit use. (1) All credits generated in accordance with these 
provisions may be freely traded or banked for later use, subject to the 
provisions contained in this subpart, without discount or depreciation 
of such credits.
    (2) A covered fleet owner or operator desiring to demonstrate full 
or partial compliance with covered fleet purchase requirements by the 
redemption of credits shall surrender sufficient credits as established 
in this paragraph. In lieu of purchasing a CFFV, a fleet owner or 
operator shall surrender credits equal to the credit value for the 
corresponding vehicle class and credit calculation method used in 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 covered nonattainment 
area may be traded within those boundaries whether or not that area 
encompasses parts of more than one state.
    (4) Credits issued as a result of CFFV purchase requirements in one 
nonattainment area may not be used to demonstrate compliance in another 
nonattainment area, even if a state contains more than one covered 
nonattainment area.
    (5) Credit allocation. (i) Credits generated by the purchase of LDVs 
and LDTs of 8,500 pounds (3,900 kilograms) GVWR or less may be used to 
demonstrate compliance with covered fleet purchase requirements 
applicable to LDVs or LDTs of 8,500 pounds (3,900 kilograms) GVWR or 
less.
    (ii) Credits generated by the purchase of vehicles of more than 
8,500 pounds (3,900 kilograms) GVWR may not be used to demonstrate 
compliance with the covered fleet purchase requirements for vehicles 
weighing 8,500 pounds (3,900 kilograms) GVWR or less.
    (iii) Credits generated by the purchase of vehicles of 8,500 pounds 
(3,900 kilograms) GVWR or less may not be used to demonstrate compliance 
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 particular 
weight subclass may be used to demonstrate compliance with required 
heavy-duty vehicle purchases for the same or lighter weight subclasses. 
These credits may not be used to demonstrate compliance with required 
HDV purchases for vehicles of heavier weight subclasses than the weight 
subclass of the vehicle which generated the credits.



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

vehicles.

    (a) All clean-fuel heavy-duty engines and vehicles used as LEVs, 
ULEVs, and ZEVs that are also regulated under 40 CFR part 86 shall 
comply with the labeling requirements of 40 CFR 86.095-35 (or later 
applicable sections), and shall also include an unconditional statement 
on the label indicating that the engine or vehicle is a LEV, ULEV, or 
ZEV, and meets all of the applicable requirements of this part 88.
    (b) All heavy-duty clean-fuel fleet vehicles not regulated under 40 
CFR part 86 shall have a permanent legible label affixed to the engine 
or vehicle in a readily visible location, which contains the following 
information:
    (1) The label heading: vehicle emissions classification information 
(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 applicable 
requirements of the U.S. Environmental Protection Agency clean-fuel 
fleet vehicle program, as described in this part 88, but not necessarily 
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-

fuel fleet vehicle.

    (a) For purposes of meeting the requirements of section 246 of the 
Clean Air Act or the SIP revisions, conversions of engines or vehicles 
which satisfy the requirements of this section shall be treated as a 
purchase of a clean-fuel vehicle under subpart C of this part.
    (b) The engine or vehicle must be converted using a conversion 
configuration which has been certified according to the provisions of 40 
CFR part 86 using applicable emission standards and other provisions 
from part 88 for clean-fuel engines and vehicles. The following 
requirements will also apply:

[[Page 29]]

    (1) If the installation of the certified conversion configuration is 
performed by an entity other than aftermarket conversion certifier, the 
aftermarket conversion certifier shall submit a list of such installers 
to the Administrator. Additional installers must be added to this list 
and the revised list submitted to the Administrator within 5 working 
days from the time they are authorized to perform conversion 
installations by the clean-fuel vehicle aftermarket conversion 
certifier.
    (2) If the installation of the certified conversion configuration is 
performed by an entity other than the certificate holder, the 
certificate holder shall provide instructions for installation of the 
aftermarket 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 the 
Small-Volume Manufacturers Certification Program pursuant to the 
requirements of 40 CFR 86.094-14 is permitted, the 10,000 sales volume 
limit in 40 CFR 86.094-14(b)(1) is waived for a certifier of a clean-
fuel vehicle aftermarket conversion.
    (4) Clean-fuel vehicle aftermarket conversion certifiers that are 
subject to the post-installation emissions testing requirements in 
paragraph (c) of this section and who will satisfy these requirements by 
using the two speed idle test procedure detailed in paragraph (c)(2)(ii) 
of this section must conduct the following testing at the time of 
certification in order to generate the required certification CO 
emissions reference values. The certification CO emissions reference 
values generated must be submitted to the Administrator at the time of 
application for certification.
    (i) For dual and flexible fuel vehicles, certification reference 
values must be generated for each certification test fuel required for 
exhaust emissions testing pursuant to 40 CFR 86.113 or 40 CFR 86.1313.
    (ii) For light-duty vehicles and light-duty trucks the test fuels 
used during the emissions testing required by paragraph (b)(3) of this 
section must comply with the fuel specifications for exhaust emissions 
testing found in 40 CFR 86.113. For heavy-duty engines the test fuels 
used during the emissions testing required by paragraph (b)(3) of this 
section must comply with the fuel specifications for exhaust emissions 
testing found in 40 CFR 86.1313.
    (iii) Single, consecutive idle mode and high-speed mode segments of 
the two speed idle test must be conducted pursuant to the requirements 
of 40 CFR 85.2215 and as modified by the provisions of paragraph 
(c)(4)(ii)(D) of this section and this paragraph to determine the 
required certification CO emission reference values.
    (A) The certification CO emission reference value for the idle mode 
of the test will be the simple average of all emissions measurements 
taken during an idle mode of 90 seconds duration pursuant to 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 emissions 
measurements taken during a high-speed mode of 180 seconds duration 
pursuant to the requirements in 40 CFR 85.2215(a).
    (c) Except as provided in paragraph (c)(1) of this section, each 
converted vehicle manufactured by a clean-fuel vehicle aftermarket 
conversion certifier with aggregate sales of less than 10,000 converted 
vehicles within a given calendar year must satisfy the post-installation 
emissions testing requirements of paragraph (c)(2) of this section. If a 
vehicle fails to satisfy the emissions testing requirements such vehicle 
may not be considered a clean- fuel vehicle until such noncompliance is 
rectified and compliance is demonstrated.
    (1) A clean-fuel vehicle aftermarket conversion certifier with 
estimated sales of 300 or fewer engines and vehicles in a calendar year 
and which sells or converts vehicles outside of a non-attainment area 
(as classified under subpart D of Title I) which has an inspection and 
maintenance program that includes a test of carbon monoxide emissions 
may submit a request to the Administrator for an exemption from the 
post-installation emission test requirements of paragraph (c) of this 
section. If granted, such an exemption would apply to converted vehicles 
that

[[Page 30]]

have the conversion installation performed outside of a nonattainment 
area which has an inspection and maintenance program that includes a 
test of carbon monoxide emissions.
    (i) The request for exemption submitted to the Administrator must 
include the following:
    (A) The estimated number of engines and vehicles that will be 
converted in the calendar year.
    (B) Sufficient information to demonstrate that complying with the 
post-installation emission test requirement represents a severe 
financial hardship.
    (C) A description of any emission related quality control procedures 
used.
    (ii) Within 120 days of receipt of the application for exemption, 
the Administrator will notify the applicant either that an exemption is 
granted or that sufficient cause for an exemption has not been 
demonstrated and that all of the clean-fuel vehicle aftermarket 
conversion certifier's vehicles are subject to the post-installation 
test requirement of paragraph (c)(2) of this section.
    (iii) If the clean-fuel vehicle aftermarket conversion certifier 
granted an exemption originally estimates that 300 or fewer conversions 
would be performed in the calendar year, and then later revises the 
estimate to more than 300 for the year, the certifier shall inform the 
Administrator of such revision. A post-installation emissions test for 
each conversion performed after the estimate is revised is required 
pursuant to the requirements of paragraph (c)(2) of this section. The 
estimated number of conversions from such a clean-fuel vehicle 
aftermarket conversion certifier must be greater than 300 in the 
following calendar year.
    (2) A clean-fuel vehicle aftermarket conversion certifier with 
aggregate sales less than 10,000 converted vehicles within a given 
calendar year shall conduct post-installation emissions testing using 
either of the following test methods:
    (i) The carbon monoxide (CO) emissions of the converted vehicle must 
be determined in the manner in which CO emissions are determined 
according to the inspection and maintenance requirements applicable in 
the area in which the vehicle is converted or is expected to be 
operated.
    (A) For dual-fuel vehicles, a separate test is required for each 
fuel on which the vehicle is capable of operating. For flexible fuel 
vehicles, a single test is required on a fuel that falls within the 
range of fuel mixtures for which the vehicle was designed. The test 
fuel(s) used must be commercially available.
    (B) A converted vehicle shall be considered to meet the requirements 
of this paragraph if the vehicle's measured exhaust CO concentration(s) 
is lower than the cutpoint(s) used to determine CO pass/fail under the 
inspection and maintenance program in the area in which the conversion 
is expected to be operated.
    (1) If CO pass/fail criteria are not available for a vehicle fuel 
type then pass/fail criteria specific to gasoline use are to be used for 
vehicles of that fuel type.
    (2) [Reserved]
    (ii) The carbon monoxide (CO) emissions of the converted vehicle 
must 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 idle 
test must be observed except as detailed in paragraph (c)(2)(ii)(D) of 
this section.
    (A) For dual and flexible fuel vehicles, a separate test is required 
for each certification test fuel required for exhaust emissions testing 
pursuant to 40 CFR 86.113 or 40 CFR 86.1313.
    (B) For light-duty vehicles and light-duty trucks the test fuels 
used during the emissions testing required by paragraph (c)(4) of this 
section must comply with the fuel specifications for exhaust emissions 
testing found in 40 CFR 86.113. For heavy-duty engines the test fuels 
used during the emissions testing required by paragraph (c)(2) of this 
section must comply with the fuel specifications for exhaust emissions 
testing found in 40 CFR 86.1313.
    (C) A converted vehicle shall be considered to meet the requirements 
of this paragraph if the following criteria are satisfied:
    (1) The vehicle's measured idle mode exhaust CO concentration(s) 
must be lower than the sum of 0.4 percent CO plus the idle mode 
certification CO emissions reference value as determined according to 
the requirements of paragraph (b)(3) of this section.

[[Page 31]]

    (2) The vehicle's measured high-speed mode exhaust CO 
concentration(s) must be lower than the sum of 0.4 percent CO plus the 
high-speed certification CO emissions reference value as determined 
according to the requirements of paragraph (b)(3) of this section.
    (D) For the purposes of the post-installation emissions testing 
required by paragraph (c) of this section, the following adjustments to 
the two speed idle test-EPA 91 in 40 CFR 85.2215 are necessary.
    (1) Testing of hydrocarbon emissions and equipment associated 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 detailed in paragraph 
(c)(2)(ii)(C) of this section. All HC pass/fail criteria in 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 CO plus 
CO2 above six percent does not apply. However, the 
Administrator may reconsider requiring that the void test criteria in 40 
CFR 85.2215(a)(3) and (b)(2)(iv) be applied, and may issue an advisory 
memorandum to this effect in the future.
    (4) The ambient temperature levels encountered by the vehicle during 
testing must comply with the specifications in 40 CFR 86.130 or 40 CFR 
86.1330.
    (d) The clean-fuel vehicle aftermarket conversion certifier shall be 
considered a manufacturer for purposes of Clean Air Act sections 206 and 
207 and related enforcement provisions, and must accept liability for 
in-use performance of all the vehicles produced under the 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 conversion certifier 
shall be the original useful life of the vehicle prior to conversion.
    (2) [Reserved]
    (e) Tampering. (1) The conversion from an engine or vehicle capable 
of operating on gasoline or diesel fuel only to a clean-fuel engine or 
vehicle shall not be considered a violation of the tampering provisions 
of Clean Air Act section 203(a)(3), if such conversion is done pursuant 
to a conversion configuration certificate by the aftermarket conversion 
certifier or by an installer listed on the certificate.
    (2) In order to comply with the provisions of this subpart, an 
aftermarket conversion installer must:
    (i) Install a certified aftermarket conversion system for which the 
installer is listed by the certifier; and
    (ii) Perform such installation according to instructions provided by 
the aftermarket conversion certifier.
    (f) Data collection. The clean-fuel vehicle aftermarket conversion 
certifier is responsible for maintaining records of each engine and 
vehicle converted for use in the Clean Fuel Fleets program for a period 
of 5 years. The records are to include the engine or vehicle make, 
engine or vehicle model, engine or vehicle model year, and engine or 
vehicle identification number of converted engines and vehicles; the 
certification number of the conversion configuration; the brand names 
and part numbers of the parts included in the conversion configuration; 
the date of the conversion and the facility at 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 by law 
to participate in the clean-fuel fleet program or any vehicle generating 
credits under Sec. 88.304-94(c) from transportation control measures 
(TCMs) existing wholly or partially for air quality reasons included in 
an approved state implementation plan which restrict vehicle usage based 
primarily on temporal considerations, such as time-of-day and day-of-
week exemptions. However, CFFVs shall not qualify for TCMs where the 
temporal element is secondary to some other control element

[[Page 32]]

and, in no case, shall such 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 qualifying 
CFFVs being operated after SIP approval, but prior to the effective date 
for commencement of a state's CFFV credit program.
    (c) Temporal TCM exemptions provided for in paragraph (a) of this 
section are not effective outside of the areas for which states can be 
required to establish CFFV credit programs.
    (1) Such exemptions shall remain effective only while the subject 
vehicle remains in compliance with applicable CFFV emissions standards 
and other CFFV credit program requirements.
    (2) CFFV TCM exemptions shall not be transferred between vehicles 
within 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 a multi-
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 that the 
clean fuel vehicle purchase requirements begin to apply no later than 
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) of the 
Act, fleets owned or operated by any agency, department, or 
instrumentality of the United States shall comply with the applicable 
state regulations concerning CFFVs established in the SIP revision. Such 
fleets shall be treated in the same manner as private or other 
government fleets under the applicable state regulations.
    (1) Federal agencies shall obtain CFFVs from original equipment 
manufacturers, to the extent possible, as required under section 248 of 
the CAA.
    (2) The Secretary of Defense may exempt any vehicle(s) from the 
provisions of any CFFV credit program established in the SIP revision by 
certifying to the Administrator in writing that inclusion of the 
specified vehicle(s) in such a program could have an adverse impact on 
the national security. The Secretary of Defense shall also provide a 
copy of this statement of exemption to the state agency administering 
the CFFV credit program in the covered area in which the specified 
vehicle(s) is registered/operated.
    (b) [Reserved]



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

    (a) Certification. (1) Emissions Testing Procedures. A vehicle shall 
be certified as an ILEV if that vehicle satisfies the following 
conditions:
    (i) The vehicle shall be certified under the appropriate exhaust 
emissions standards from paragraph (c) or (d) of this section depending 
on the vehicle's weight classification.
    (ii) The vehicle shall be certified as having fuel vapor emissions 
which are five or less total grams per test as measured by the current 
Federal Test Procedure (FTP), modified for ILEV certification, from 40 
CFR 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 evaporative 
emissions, the fuel vapor emissions shall be measured using the FTP 
regulations in effect at the time the vehicle is to be certified as an 
ILEV. For purposes of this section, the vehicle's fuel vapor emissions 
shall consist of the total grams of diurnal, hot soak, running loss, and 
resting loss emissions, as appropriate, for the particular fuel/vehicle/
engine combination to be tested. In determining ILEV evaporative 
emissions, the diurnal emissions measurement procedure shall consist of 
a single diurnal heat build using an ambient or fuel temperature range 
of 72[deg]-96 [deg]F (22[deg]-36 [deg]C), as appropriate for the 
applicable FTP regulations (40 CFR part 86).

[[Page 33]]

    (B) Conventional Federal Test Procedure. A vehicle with no 
evaporative emissions control system components may have its evaporative 
emissions certified for its particular GVWR weight class/subclass if it 
passes the conventional evaporative emissions FTP from 40 CFR part 86, 
subpart B for LDVs and LDTs or from 40 CFR part 86, subpart M for HDVs, 
as applicable.
    (iii) The vehicle must meet other special requirements applicable to 
conventional or clean-fuel vehicles and their fuels as described in any 
other parts of this chapter, including 40 CFR parts 86 and 88.
    (2) Vehicles which have a closed or sealed fuel system may be 
certified at the administrator's option by engineering evaluation in 
lieu of testing. These vehicles will be certified as ILEVs only if a 
leak in the fuel system would result in the vehicle becoming inoperative 
due to loss of fuel supply, or if half the fuel escapes within 24 hours.
    (b) Identification. In the application for a vehicle's certification 
as an ILEV, the manufacturer or the manufacturer's agent shall provide 
for positive identification of the vehicle's status as an 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 or boldface letters) that the 
vehicle is certified to applicable emission standards for ILEV exhaust 
and evaporative emission standards.
    (c) Light-duty vehicles and light-duty trucks. ILEVs in LDV and LDT 
classes shall have exhaust emissions which do not exceed the LEV exhaust 
emission standards for NMOG, CO, HCHO, and PM and the ULEV exhaust 
emission standards for NOX listed in Tables A104-1 through 
A104-6 for light-duty CFVs. Exhaust emissions shall be measured in 
accordance with the test procedures specified in Sec. 88.104-94(k). An 
ILEV must be able to operate on only one fuel, or must be certified as 
an ILEV on all fuels on which it can operate. These vehicles shall also 
comply with all requirements of 40 CFR part 86 which are applicable to 
conventional gasoline-fueled, methanol-fueled, diesel-fueled, natural 
gas-fueled or liquified petroleum gas-fueled LDVs/LDTs of the same 
vehicle class and model year.
    (d) Heavy-duty vehicles. ILEVs in the HDV class shall have exhaust 
emissions which do not exceed the exhaust emission standards in grams 
per brake horsepower-hour listed in Sec. 88.105-94(d). Exhaust 
emissions shall be measured in accordance with the test procedures 
specified in Sec. 88.105-94(e). An ILEV must be able to operate on only 
one fuel, or must be certified as an ILEV on all fuels on which it can 
operate. These vehicles shall also comply with all requirements of 40 
CFR part 86 which are applicable in the case of conventional gasoline-
fueled, methanol-fueled, diesel-fueled, natural gas-fueled or liquified 
petroleum gas-fueled HDVs of the same weight class and model year.
    (e) Applicability. State actions to opt out of the clean-fuel fleet 
program under section 182(c) of the Act do not affect the applicability 
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 requirements that 
differ from Sec. 88.311-93. Where a paragraph in Sec. 88.311-93 is 
identical and applicable to Sec. 88.311-98, this may be indicated by 
specifying the corresponding paragraph and the statement ``[Reserved]. 
For guidance see Sec. 88.311-93.''
    (a) heading through (a)(1)(ii) [Reserved]. For guidance see Sec. 
88.311-93.
    (iii) The vehicle must meet other special requirements applicable to 
conventional or clean-fuel vehicles and their fuels as described in any 
other regulations in 40 CFR chapter I, subchapter C, including 40 CFR 
parts 86 and 88 (e.g., onboard refueling provisions).
    (b)-(e) [Reserved]. For guidance see Sec. 88.311-93.

[59 FR 16309, Apr. 6, 1994]

    Effective Date Note: The new information collection requirements for 
Sec. 88.311-98 published in the Federal Register at 59 FR 16309, Apr. 
6, 1994, which apply to 1998 and later model year vehicles, have not 
been approved by the Office 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 either of the 
following specifications:
    (i) The label shall consist of a white rectangular background, 
approximately 12 inches (30 centimeters) high by 18 inches (45 
centimeters) wide, with ``CLEAN AIR VEHICLE'' printed in contrasting 
block capital letters at least 4.3 inches (10.6 centimeters) tall and 
1.8 inches (4.4 centimeters) wide with a stroke width not less than 0.5 
inches (1.3 centimeters). In addition, the words ``INHERENTLY LOW-
EMISSION VEHICLE'' must be present in lettering no smaller than 1 inch 
(2.5 centimeters) high. Nothing shall be added to the label which 
impairs readability. Labels shall include a serialized identification 
number; or
    (ii) The label shall consist of a white truncated-circular 
background, approximately 10 inches (25 centimeters) in diameter by 7 
inches (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 on the label in 
contrasting block capital letters at least 2 inches (5 centimeters) tall 
and 1.5 inches (3.8 centimeters) wide with a stroke width not less than 
0.4 inches (1.0 centimeter). In addition, the words ``CLEAN AIR 
VEHICLE'' must be present in lettering no smaller than 0.8 inches (2.0 
centimeters) high. Nothing shall be added to the label which impairs 
readability. Labels shall include a serialized identification number.
    (2) The ILEV label shall be fabricated or affixed to a vehicle in 
such a manner that its removal from the vehicle cannot be accomplished 
without defacing or destroying the label in whole or in part.
    (3) Along with the manufacturer's application to certify a 
particular ILEV engine class, the manufacturer or the manufacturer's 
agent shall submit to EPA ILEV labels or reasonable facsimiles of the 
types which may be mounted on a certified ILEV vehicle of that class.
    (b) Eligibility. Vehicle manufacturers or their agents must install 
ILEV labels on a certified ILEV vehicle at the time of its sale to an 
eligible fleet owner if the vehicle is to be eligible for expanded TCM 
exemptions. An eligible fleet owner is one who is in a covered area and 
owns a total of at least ten motor vehicles (including the ILEV(s) being 
purchased) which operate in the owner's fleet. All of the following 
shall be provided to demonstrate eligibility: Photocopies of no less 
than nine motor vehicle registrations indicating registration in the 
ILEV purchaser's name, a signed statement by the ILEV purchaser that 
these vehicles are operational in the purchaser's fleet and that the 
ILEV being purchased will also be operated in this fleet, and a signed 
statement by the ILEV purchaser that the ILEV labels will be removed and 
disposed of when the vehicle is sold, given, leased (except as part of a 
daily rental fleet), or offered for long-term loan to someone who has 
not demonstrated eligibility for expanded TCMs available to ILEVs 
according to these criteria.
    (c) ILEV Label installation. (1) Except as provided for in this 
paragraph (c), no person shall attach an ILEV label or any facsimile of 
an ILEV label to any vehicle.
    (2)(i) The manufacturer or the manufacturer's agent shall attach 
three labels on the vehicle in plain sight: One on the rear of the 
vehicle and one on each of two sides of the vehicle. Each label shall 
conform to the specifications of paragraph (a) of this section.
    (ii) In the case that an ILEV label of the proportions specified in 
paragraph (a)(1) of this section cannot be attached to the rear of the 
ILEV, the manufacturer or the manufacturer's agent shall attach to the 
rear of the vehicle an ILEV label of either of the following 
proportions:
    (A) The label shall consist of a white rectangular background, 
approximately 4 inches (10 centimeters) high by 24 inches (60 
centimeters) wide, with ``CLEAN AIR VEHICLE'' printed in contrasting 
block capital letters at least 2.8 inches (7 centimeters) tall and 1.3 
inches (3.3 centimeters) wide with a stroke width not less than 0.3 
inches (0.8 centimeter). In addition, the words ``INHERENTLY LOW-
EMISSION VEHICLE'' must be present in lettering

[[Page 35]]

no smaller than 0.6 inches (1.5 centimeters) high. Nothing shall be 
added to the label which impairs readability. Labels shall include a 
serialized identification number; or
    (B) The label shall consist of a white truncated-circular 
background, approximately 5 inches (12.5 centimeters) in diameter by 3.5 
inches (8.8 centimeters) in height. The bottom edge of the truncated-
circular background shall be approximately 1 inch (2.5 centimeters) from 
the center. The acronym ``ILEV'' shall be printed on the label in 
contrasting block capital letters at least 1 inch (2.5 centimeters) tall 
and 0.8 inches (2.0 centimeters) wide with a stroke width not less than 
0.3 inches (0.8 centimeters). In addition, the words ``CLEAN AIR 
VEHICLE'' must be present in lettering no smaller than 0.4 inches (1.0 
centimeter) high. Nothing shall be added to the label which impairs 
readability. Labels shall include a serialized identification number.
    (d) Label removal. Fleet ILEV owners shall remove and dispose of the 
ILEV labels on a vehicle before selling or transferring ownership of an 
ILEV or offering it for lease (unless the ILEV is part of a daily rental 
fleet) or long-term loan. This provision shall not apply if the person 
who is receiving the vehicle demonstrates eligibility for expanded TCM 
exemptions under the federal ILEV program as described in paragraph (b) 
of this section, or is otherwise qualified under state regulations which 
expressly expand ILEV label eligibility.
    (e) Label replacement. (1) The manufacturer shall make replacement 
ILEV labels available to the fleet owner of a qualifying ILEV to replace 
any ILEV label which has been lost or removed due to vehicle damage, 
repair, sale, or lease. The fleet owner's request shall include proof of 
ownership of the ILEV in question and proof of the fleet owner's 
eligibility for ILEV TCM exemptions, as outlined in paragraph (c) of 
this section. Each label shall be imprinted with the same serial number 
as initially assigned to the damaged/missing ILEV label(s) for that 
vehicle. Any portion of a damaged label remaining on the ILEV shall be 
removed from the vehicle and submitted with the request as proof of 
loss.
    (2) Upon receipt of the replacement ILEV label(s), the fleet owner 
shall attach the new ILEV label(s) only to the vehicle for which 
replacement 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 ILEVs provided in 
this section are not effective outside of nonattainment areas for which 
states are required to establish CFFV programs under section 246 of the 
CAA, unless specifically added by states for qualifying vehicles.
    (2) Incentives for purchasing ILEVs shall not be transferred between 
vehicles within the same fleet nor shall they be sold or traded.
    (3) No vehicle over 26,000 pounds (11,800 kilograms) GVWR shall be 
eligible for the following ILEV incentives.
    (b) Exemption from temporal TCMs. A fleet vehicle which has been 
certified and labeled as an ILEV according to the provisions of this 
section and which continues to be in compliance with applicable 
emissions standards and other ILEV program requirements shall be 
exempted from TCMs existing for air quality reasons included in approved 
state implementation plans which restrict vehicle usage based primarily 
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 ILEV according 
to the provisions of Sec. Sec. 88.311 and 88.312 and which continues to 
be in compliance with applicable emissions standards and other ILEV 
program requirements shall be exempt from TCMs which restrict a 
vehicle's access to certain roadway lanes based on the number of 
occupants in that vehicle, usually known as high-occupancy vehicle (HOV) 
lanes. These exemptions shall not apply if they would create a clear and 
direct safety hazard.

[[Page 36]]

    (2) In a state containing a covered area, or areas, the governor may 
petition the Administrator for a waiver from the exemption from HOV lane 
restrictions for ILEVs for any section of HOV lane in the covered 
area(s) that can be shown to be congested primarily due to the operation 
or projected operation of ILEVs. The waiver application shall 
demonstrate the infeasibility of other means of alleviating HOV/CAV lane 
congestion, such as adding an additional HOV/CAV lane, further 
increasing vehicle occupancy requirements and reducing the use of the 
lane by noneligible vehicles.



                   Sec. Tables to Subpart C of Part 88

   Table C94-1--Fleet Credit Table Based on Reduction in NMOG. Vehicle Equivalents for Light-Duty Vehicles and
                                                Light-Duty Trucks
       Table C94-1.1--Credit Generation: Purchasing More Clean-Fuel Vehicles Than Required by the Mandate
----------------------------------------------------------------------------------------------------------------
                                                                                  LDT 6000 GVWR,     LDT 6000 GVWR,   3750   eq>6000 GVWR,
              NMOG                  GVWR,       eq>3750 LVW      <=3750 ALVW      ALVW <=5750    5750
                                  <=3750 LVW     <=5750 LVW                           ALVW             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--Credit Generation: Purchasing a ULEV or ZEV To Meet the Mandate
----------------------------------------------------------------------------------------------------------------
                                                                                 LDT  6000 GVWR,    LDT  6000 GVWR,   3750   eq>6000 GVWR,
              NMOG                  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...........................         0.20           0.29             0.29             0.34             0.45
ZEV............................         0.43           0.57             0.71             0.91             1.11
----------------------------------------------------------------------------------------------------------------


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


 Table C94-2--Fleet Credit Table Based on Reduction in NMOG+NOX. Vehicle Equivalents for Light-Duty Vehicles and
                                                Light-Duty Trucks
       Table C94-2.1--Credit Generation: Purchasing More Clean-Fuel Vehicles Than Required by 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............................         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--Credit Generation: 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--Credit Needed 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 Credit Table Based on Reduction in Carbon Monoxide. Vehicle Equivalents for Light-Duty
                                         Vehicles and Light-Duty Trucks
       Table C94-3.1--Credit Generation: Purchasing More Clean-Fuel Vehicles Than Required by the Mandate
----------------------------------------------------------------------------------------------------------------
                                                                                 LDT  6000 GVWR,    LDT  3750   eq>6000 GVWR,
                 CO                     GVWR,       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--Credit Generation: Purchasing a ULEV or ZEV To Meet the Mandate
----------------------------------------------------------------------------------------------------------------
                                                                                 LDT  6000 GVWR,    LDT  6000 GVWR,   3750   eq>6000 GVWR,
               CO                   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...........................         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--Credit Needed 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      <=3750 ALVW      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 Table Based on Reduction in NMHC+NOX. Vehicle
 Equivalents for Heavy-Duty Vehicles--Table C94-4.1--Credit Generation:
    Purchasing More Clean-Fuel Vehicles Than Required by the Mandate
------------------------------------------------------------------------
                                              Light    Medium     Heavy
                 NMHC+NOX                      HDV       HDV       HDV
------------------------------------------------------------------------
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 Lieu of Purchasing a LEV to Meet the
                                 Mandate
------------------------------------------------------------------------
                                                        Light    Medium
                      NMHC+NOX                           HDV       HDV
------------------------------------------------------------------------
LEV.................................................      1.00      1.00
------------------------------------------------------------------------


    Table C94-5--Fleet Credit Table Based on Reduction in Co. Vehicle
 Equivalents for Heavy-Duty Vehicles--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 Lieu of Purchasing a LEV to Meet the
                                 Mandate
------------------------------------------------------------------------
                                                        Light    Medium
                         CO                              HDV       HDV
------------------------------------------------------------------------
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-USE NONROAD 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 Nonroad Internal Combustion 
          Engines

        Subpart B_Emission Standards and Certification Provisions

89.101 Applicability.
89.102 Effective dates, optional inclusion, flexibility for equipment 
          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 allowable maintenance 
          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, and particulate 
          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 of conformity.
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 system description.
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 system 
          description.
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 passing and failing 
          criteria for selective enforcement audits.
89.511 Suspension and revocation of certificates of conformity.
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 Selective Enforcement 
          Auditing of Nonroad Engines

         Subpart G_Importation of Nonconforming Nonroad Engines

89.601 Applicability.
89.602 Definitions.
89.603 General requirements for importation of nonconforming nonroad 
          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's records.
89.608 ``In Use'' inspections and recall requirements.
89.609 Final admission of modification nonroad engines and test nonroad 
          engines.
89.610 Maintenance instructions, warranties, emission labeling.
89.611 Exemptions and exclusions.
89.612 Prohibited acts; penalties.
89.613 Treatment of confidential information.

                      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 precertification exemption.
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 the motor-
          vehicle program?
89.914 What provisions apply to vehicles certified under the motor-
          vehicle program?
89.915 Staged-assembly exemption.
89.916 Emergency-vessel exemption for marine engines below 37 kW.

      Subpart K_General Enforcement Provisions and Prohibited Acts

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 otherwise noted.



                            Subpart A_General



Sec. 89.1  Applicability.

    (a) This part applies for all compression-ignition nonroad engines 
(see definition of ``nonroad engine'' in Sec. 89.2) except those 
specified in paragraph (b) of this section. This means that the engines 
for which this part applies include but are not limited to the 
following:
    (1) Compression-ignition engines exempted from the requirements of 
40 CFR Part 92 by 40 CFR 92.907;
    (2) Compression-ignition engines exempted from the requirements of 
40 CFR Part 94 by 40 CFR 94.907;
    (3) Portable compression-ignition engines that are used in but not 
installed in marine vessels (as defined in the

[[Page 41]]

General Provisions of the United States Code, 1 U.S.C. 3);
    (4) Non-propulsion compression-ignition engines used in locomotives; 
and
    (5) Compression-ignition marine engines with rated power under 37 
kW.
    (b) (1) Aircraft engines. This part does not apply for engines used 
in aircraft (as defined in 40 CFR 87.1).
    (2) Mining engines. This part does not apply for engines used in 
underground mining equipment and regulated by the Mining Safety 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 engines that:
    (i) Are subject to the standards of 40 CFR part 92; or
    (ii) Are exempted from the requirements of 40 CFR part 92 by 
exemption provisions of 40 CFR part 92 other than those specified in 40 
CFR 92.907.
    (4) Marine engines. This part does not apply for engines that:
    (i) Are subject to the standards of 40 CFR part 94;
    (ii) Are exempted from the requirements of 40 CFR part 94 by 
exemption provisions of 40 CFR part 94 other than those specified in 40 
CFR 94.907 or 94.912.
    (iii) Are marine engines (as defined in 40 CFR part 94) with rated 
power at or above 37kW that are manufactured in calendar years in which 
the standards of 40 CFR part 94 are not yet applicable.
    (5) Hobby engines. This part does not apply for engines installed in 
reduced-scale models of vehicles that are not capable of transporting a 
person.
    (6) Tier 4 engines. This part does not apply to engines that are 
subject to emission standards under 40 CFR part 1039. See 40 CFR 1039.1 
to determine when that part 1039 applies. Note that certain requirements 
and prohibitions apply to engines built on or after January 1, 2006 if 
they are installed in stationary applications or in equipment that will 
be used solely for competition, as described in 40 CFR 1039.1 and 40 CFR 
1068.1; those provisions apply instead of the provisions of this part 
89.
    (c) In certain cases, the regulations in this part 89 apply to 
engines at or above 250 kW that would otherwise be covered by 40 CFR 
part 1048. See 40 CFR 1048.620 for provisions related to this allowance.
    (d) This part applies as specified in 40 CFR part 60 subpart IIII, 
to compression-ignition engines subject to the standards of 40 CFR part 
60, subpart IIII.

[64 FR 73330, Dec. 29, 1999, as amended at 69 FR 39212, June 29, 2004; 
70 FR 40444, July 13, 2005; 71 FR 39184, July 11, 2006; 72 FR 53126, 
Sept. 18, 2007; 74 FR 8423, Feb. 24, 2009]



Sec. 89.2  Definitions.

    The following definitions apply to part 89. All terms not defined 
herein have the meaning given them in the Act.
    Act means the Clean Air Act, as amended, 42 U.S.C. 7401 et seq.
    Adjustable parameter means any device, system, or element of design 
which is physically capable of being adjusted (including those which are 
difficult to access) and which, if adjusted, may affect emissions or 
engine performance during emission testing.
    Administrator means the Administrator of the Environmental 
Protection Agency or his or her authorized representative.
    Aircraft means any vehicle capable of sustained air travel above 
treetop heights.
    Amphibious vehicle means a vehicle with wheels or tracks that is 
designed primarily for operation on land and secondarily for operation 
in water.
    Auxiliary emission control device (AECD) means any element of design 
that senses temperature, vehicle speed, engine RPM, transmission gear, 
or any other parameter for the purpose of activating, modulating, 
delaying, or deactivating the operation of any part of the emission 
control system.
    Auxiliary marine diesel engine means a marine diesel engine that is 
not a propulsion marine diesel engine.
    Blue Sky Series engine means a nonroad engine meeting the 
requirements of Sec. 89.112(f).
    Certification means, with respect to new nonroad engines, obtaining 
a certificate of conformity for an engine family complying with the 
nonroad engine emission standards and requirements specified in this 
part.
    Compression-ignition means relating to a type of reciprocating, 
internal-

[[Page 42]]

combustion engine that is not a spark-ignition engine.
    Constant-speed engine means an engine that is governed to operate 
only at rated speed.
    Crankcase emissions means airborne substances emitted to the 
atmosphere from any portion of the engine crankcase ventilation or 
lubrication systems.
    Designated Enforcement Officer means the Director, Air Enforcement 
Division (2242A), U.S. Environmental Protection Agency, 1200 
Pennsylvania Ave., NW.,Washington, DC 20460.
    Emission control system means any device, system, or element of 
design which controls or reduces the emission of substances from an 
engine.
    Engine, as used in this part, refers to nonroad engine.
    Engine manufacturer means any person engaged in the manufacturing or 
assembling of new nonroad engines or importing such engines for resale, 
or who acts for and is under the control of any such person in 
connection with the distribution of such engines. Engine manufacturer 
does not include any dealer with respect to new nonroad engines received 
by such person in commerce.
    Engine used in a locomotive means either an engine placed in the 
locomotive to move other equipment, freight, or passenger traffic, or an 
engine mounted on the locomotive to provide auxiliary power.
    EPA enforcement officer means any officer or employee of the 
Environmental Protection Agency so designated in writing by the 
Administrator (or by his or her designee).
    Exhaust gas recirculation means an emission control technology that 
reduces emissions by routing exhaust gases that had been exhausted from 
the combustion chamber(s) back into the engine to be mixed with incoming 
air prior to or during combustion. The use of valve timing to increase 
the amount of residual exhaust gas in the combustion chamber(s) that is 
mixed with incoming air prior to or during combustion is not considered 
to be exhaust gas recirculation for the purposes of this part.
    Family emission limit (FEL) means an emission level that is declared 
by the manufacturer to serve in lieu of an emission standard for 
certification purposes and for the averaging, banking, and trading 
program. A FEL must be expressed to the same number of decimal places as 
the applicable emission standard.
    Full load governed speed is the maximum full load speed as specified 
by the manufacturer in the sales and service literature and 
certification application. This speed is the highest engine speed with 
an advertised power greater than zero.
    Gross power means the power measured at the crankshaft or its 
equivalent, the engine being equipped only with the standard accessories 
(such as oil pumps, coolant pumps, and so forth) necessary for its 
operation on the test bed. Alternators must be used, if necessary, to 
run the engine. Fans, air conditioners, and other accessories may be 
used at the discretion of the manufacturer, but no power adjustments for 
these accessories may be made.
    Identification number means a specification (for example, model 
number/serial number combination) which allows a particular nonroad 
engine to be distinguished from other similar engines.
    Intermediate speed means peak torque speed if peak torque speed 
occurs from 60 to 75 percent of rated speed. If peak torque speed is 
less than 60 percent of rated speed, intermediate speed means 60 percent 
of rated speed. If peak torque speed is greater than 75 percent of rated 
speed, intermediate speed means 75 percent of rated speed.
    Marine engine means a nonroad engine that is installed or intended 
to be installed on a marine vessel. This includes a portable auxiliary 
marine engine only if its fueling, cooling, or exhaust system is an 
integral part of the vessel. There are two kinds of marine engines:
    (1) Propulsion marine engine means a marine engine that moves a 
vessel through the water or directs the vessel's movement.
    (2) Auxiliary marine engine means a marine engine not used for 
propulsion.

[[Page 43]]

    Marine vessel has the meaning given in 1 U.S.C. 3, except that it 
does not include amphibious vehicles. The definition in 1 U.S.C. 3 very 
broadly includes every craft capable of being used as a means of 
transportation on water.
    Model year (MY) means the manufacturer's annual new model production 
period which includes January 1 of the calendar year, ends no later than 
December 31 of the calendar year, and does not begin earlier than 
January 2 of the previous calendar year. Where a manufacturer has no 
annual new model production period, model year means calendar year.
    New for purposes of this part, means a nonroad engine, nonroad 
vehicle, or nonroad equipment the equitable or legal title to which has 
never been transferred to an ultimate purchaser. Where the equitable or 
legal title to the engine, vehicle, or equipment is not transferred to 
an ultimate purchaser until after the engine, vehicle, or equipment is 
placed into service, then the engine, vehicle, or equipment will no 
longer be new after it is placed into service. A nonroad engine, 
vehicle, or equipment is placed into service when it is used for its 
functional purposes. With respect to imported nonroad engines, nonroad 
vehicles, or nonroad equipment, the term new means an engine, vehicle, 
or piece of equipment that is not covered by a certificate of conformity 
issued under this part at the time of importation, and that is 
manufactured after the effective date of a regulation 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 into the United States).
    Nonroad engine means:
    (1) Except as discussed in paragraph (2) of this definition, a 
nonroad engine is any internal combustion engine:
    (i) In or on a piece of equipment that is self-propelled or serves a 
dual purpose by both propelling itself and performing another function 
(such as garden tractors, off-highway mobile cranes and bulldozers); or
    (ii) In or on a piece of equipment that is intended to be propelled 
while performing its function (such as lawnmowers and string trimmers); 
or
    (iii) That, by itself or in or on a piece of equipment, is portable 
or transportable, meaning designed to be and capable of being carried or 
moved from one location to another. Indicia of transportability include, 
but are not limited to, wheels, skids, carrying handles, dolly, trailer, 
or platform.
    (2) An internal combustion engine is not a nonroad engine if:
    (i) the engine is used to propel a motor vehicle or a vehicle used 
solely for competition, or is subject to standards promulgated under 
section 202 of the Act; or
    (ii) the engine is regulated by a federal New Source Performance 
Standard promulgated under section 111 of the Act; or
    (iii) the engine otherwise included in paragraph (1)(iii) of this 
definition remains or will remain at a location for more than 12 
consecutive months or a shorter period of time for an engine located at 
a seasonal source. A location is any single site at a building, 
structure, facility, or installation. Any engine (or engines) that 
replaces an engine at a location and that is intended to perform the 
same or similar function as the engine replaced will be included in 
calculating the consecutive time period. An engine located at a seasonal 
source is an engine that remains at a seasonal source during the full 
annual operating period of the seasonal source. A seasonal source is a 
stationary source that remains in a single location on a permanent basis 
(i.e., at least two years) and that operates at that single location 
approximately three months (or more) each year. This paragraph does not 
apply to an engine after the engine is removed from the location.
    Nonroad equipment means equipment that is powered by nonroad 
engines.
    Nonroad vehicle means a vehicle that is powered by a nonroad engine 
as defined in this section and that is not a motor vehicle or a vehicle 
used solely for competition.
    Nonroad vehicle or nonroad equipment manufacturer means any person 
engaged in the manufacturing or assembling of new nonroad vehicles or 
equipment or importing such vehicles or

[[Page 44]]

equipment for resale, or who acts for and is under the control of any 
such person in connection with the distribution of such vehicles or 
equipment. A nonroad vehicle or equipment manufacturer does not include 
any dealer with respect to new nonroad vehicles or equipment received by 
such person in commerce. A nonroad vehicle or equipment manufacturer 
does not include any person engaged in the manufacturing or assembling 
of new nonroad vehicles or equipment who does not install an engine as 
part of that manufacturing or assembling process. All nonroad vehicle or 
equipment manufacturing entities that are under the control of the same 
person are considered to be a single nonroad vehicle or nonroad 
equipment manufacturer.
    Opacity means the fraction of a beam of light, expressed in percent, 
which fails to penetrate a plume of smoke.
    Operating hours means:
    (1) For engine storage areas or facilities, all times during which 
personnel other than custodial personnel are at work in the vicinity of 
the storage area or facility and have access to it.
    (2) For all other areas or facilities, all times during which an 
assembly line is in operation or all times during which testing, 
maintenance, service accumulation, production or compilation of records, 
or any other procedure or activity related to certification testing, to 
translation of designs from the test stage to the production stage, or 
to engine manufacture or assembly is being carried out in a facility.
    Post-manufacture marinizer means a person who produces a marine 
diesel engine by substantially modifying a certified or uncertified 
complete or partially complete engine, and is not controlled by the 
manufacturer of the base engine or by an entity that also controls the 
manufacturer of the base engine. For the purpose of this definition, 
``substantially modify'' means changing an engine in a way that could 
change engine emission characteristics.
    Presentation of credentials means the display of the document 
designating a person as an EPA enforcement officer or EPA authorized 
representative.
    Propulsion marine diesel engine means a marine diesel engine that is 
intended to move a vessel through the water or direct the movement of a 
vessel.
    Rated speed is the maximum full load governed speed for governed 
engines and the speed of maximum horsepower for ungoverned engines.
    Spark-ignition means relating to a gasoline-fueled engine or other 
engines with a spark plug (or other sparking device) and with operating 
characteristics significantly similar to the theoretical Otto combustion 
cycle. Spark-ignition engines usually use a throttle to regulate intake 
air flow to control power during normal operation.
    Specific emissions means emissions expressed on the basis of 
observed brake power, using units of g/kW-hr. Observed brake power 
measurement includes accessories on the engine if these accessories are 
required for running an emission test (except for the cooling fan). When 
it is not possible to test the engine in the gross conditions, for 
example, if the engine and transmission form a single integral unit, the 
engine may be tested in the net condition. Power corrections from net to 
gross conditions will be allowed with prior approval of the 
Administrator.
    Sulfur-sensitive technology means an emission-control technology 
that experiences a significant drop in emission-control performance or 
emission-system durability when an engine is operated on low-sulfur fuel 
(i.e., fuel with a sulfur concentration up to 500 ppm) as compared to 
when it is operated on ultra low-sulfur fuel (i.e., fuel with a sulfur 
concentration less than 15 ppm). Exhaust-gas recirculation is not a 
sulfur-sensitive technology.
    Test fleet means the engine or group of engines that a manufacturer 
uses during certification to determine compliance with emission 
standards.
    Tier 1 engine means an engine subject to the Tier 1 emission 
standards listed in Sec. 89.112(a).
    Tier 2 engine means an engine subject to the Tier 2 emission 
standards listed in Sec. 89.112(a).
    Tier 3 engine means an engine subject to the Tier 3 emission 
standards listed in Sec. 89.112(a).
    Ultimate purchaser means, with respect to any new nonroad engine, 
new nonroad vehicle, or new nonroad equipment, the first person who in 
good

[[Page 45]]

faith purchases such new nonroad engine, nonroad vehicle, 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 Northern Mariana 
Islands, Guam, American Samoa, and the U.S. Virgin Islands.
    Used solely for competition means exhibiting features that are not 
easily removed and that would render its use other than in competition 
unsafe, impractical, or highly unlikely.
    U.S.-directed production volume means the number of nonroad 
equipment, vehicle, or marine diesel engine units produced by a 
manufacturer for which the manufacturer has reasonable assurance that 
sale 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 FR 73331, 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 of the 
subpart. Tables are numbered consecutively by order of appearance in the 
appendix. The table title will indicate the model year (if applicable) 
and the topic.
    (b) Figures for each subpart appear in an appendix at the end of the 
subpart. Figures are numbered consecutively by order of appearance in 
the appendix. The figure title will indicate the model year (if 
applicable) 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. The incorporation by 
reference was approved by the Director of the Federal Register in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be 
inspected at US EPA, OAR, 1200 Pennsylvania Ave., NW., Washington, DC 
20460, or at the National Archives and Records Administration (NARA). 
For information on the availability of 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 material that 
has been incorporated by reference in this part.
    (1) ASTM material. The following table sets forth material from the 
American Society for Testing and Materials which has been incorporated 
by reference. The first column lists the number and name of the 
material. The second column lists the section(s) of this part, other 
than Sec. 89.6, in which the matter is referenced. The second column is 
presented for information only and may not be all inclusive. Copies of 
these materials may be obtained from

[[Page 46]]

American Society for Testing and Materials, 100 Barr Harbor Drive, West 
Conshohocken, PA 19428-2959.

------------------------------------------------------------------------
           Document number and name             40 CFR part 89 reference
------------------------------------------------------------------------
ASTM D86-97:
    ``Standard Test Method for Distillation    Appendix A to Subpart D.
     of Petroleum Products at Atmospheric
     Pressure''.
ASTM D93-97:
    ``Standard Test Methods for Flash Point    Appendix A to Subpart D.
     by Pensky-Martens Closed 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 to Subpart D
     Crude Petroleum and Petroleum Products''
     (Hydrometer Method).
ASTM D445-97:
    ``Standard Test Method for Kinematic       Appendix A to Subpart D.
     Viscosity of Transparent and Opaque
     Liquids (the Calculation of Dynamic
     Viscosity)''.
ASTM D613-95:
    ``Standard Test Method for Cetane Number   Appendix A to Subpart D.
     of Diesel Fuel Oil''.
ASTM D1319-98:
    ``Standard Test Method for Hydrocarbon     Appendix A to Subpart D.
     Types in Liquid Petroleum Products by
     Fluorescent Indicator Adsorption''.
ASTM D2622-98:
    ``Standard Test Method for Sulfur in       Appendix A to Subpart D.
     Petroleum Products by Wavelength
     Dispersive X-ray Fluorescence
     Spectrometry''.
ASTM D5186-96:
    ``Standard Test Method for                 Appendix A to Subpart D.
     ``Determination of the Aromatic Content
     and Polynuclear Aromatic Content of
     Diesel Fuels and Aviation Tubine Fuels
     By Supercritical Fluid Chromatography''.
ASTM E29-93a:
    ``Standard Practice for Using Significant  89.120; 89.207; 89.509.
     Digits in Test Data to Determine
     Conformance with Specifications''.
------------------------------------------------------------------------

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

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

    (3) California Air Resources Board Test Procedure. The following 
table sets forth material from the Title 13, California Code of 
Regulations, Sections 2420-2427, as amended by California Air Resources 
Board Resolution 92-2 and published in California Air Resources Board 
mail out 93-42, September 1, 1993) which has been incorporated 
by reference. The first column lists the number and name of the 
material. The second column lists the section(s) of this part, other 
than Sec. 89.6, in which the matter is referenced. The second column is 
presented for information only and may not be all inclusive. Copies of 
these materials may be obtained from California Air Resources Board, 
Haagen-Smit Laboratory, 9528 Telstar Avenue, El Monte, CA 91731-2990.

[[Page 47]]



------------------------------------------------------------------------
                                                          40 CFR part 89
                Document number and name                     reference
------------------------------------------------------------------------
California Regulations for New 1996 and Later Heavy-Duty       89.112-96
 Off-Road Diesel 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 the information 
submitted pursuant to this part is entitled to confidential treatment as 
provided by part 2, subpart B of this chapter.
    (b) Any claim of confidentiality must accompany the information at 
the time it is submitted to EPA.
    (c) To assert that information submitted pursuant to this part is 
confidential, a manufacturer must indicate clearly the items of 
information claimed confidential by marking, circling, bracketing, 
stamping, or otherwise specifying the confidential information. 
Furthermore, EPA requests, but does not require, that the submitter also 
provide a second copy of its submittal from which all confidential 
information has been deleted. If a need arises to publicly release 
nonconfidential information, EPA will assume that the submitter has 
accurately deleted the confidential information from this second copy.
    (d) If a claim is made that some or all of the information submitted 
pursuant to this part is entitled to confidential treatment, the 
information covered by that confidentiality claim will be disclosed by 
the Administrator only to the extent and by means of the procedures set 
forth in part 2, subpart B of this chapter.
    (e) Information provided without a claim of confidentiality at the 
time of submission may be made available to the public by EPA without 
further notice to the submitter, in accordance with Sec. 
2.204(c)(2)(i)(A) of this chapter.



  Sec. Appendix A to Subpart A of Part 89--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 of 
states to regulate the use and operation of nonroad engines.
    EPA believes that states are not precluded under section 209 from 
regulating the use and operation of nonroad engines, such as regulations 
on hours of usage, daily mass emission limits, or sulfur limits on fuel; 
nor are permits regulating such operations precluded, once the engine is 
no longer new. EPA believes that states are precluded from requiring 
retrofitting of used nonroad engines except that states are permitted to 
adopt and enforce any such retrofitting requirements identical to 
California requirements which have been authorized by EPA under section 
209 of the Clean Air Act.

[62 FR 67736, Dec. 30, 1997]



        Subpart B_Emission Standards and Certification Provisions



Sec. 89.101  Applicability.

    (a) The requirements of subpart B of this part are applicable to all 
new nonroad compression-ignition engines subject to the provisions of 
subpart A of this part 89, pursuant to the schedule delineated in Sec. 
89.102.
    (b) In a given model year, you may ask us to approve the use of 
procedures for certification, labeling, reporting, and recordkeeping 
specified in 40 CFR part 1039 or 1068 instead of the comparable 
procedures specified in this part 89. We will approve the request as 
long as it does not prevent us from ensuring that you fully comply with 
the intent of this part.

[72 FR 53127, Sept. 18, 2007]



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

manufacturers.

    (a) This subpart applies to all engines described in Sec. 89.101 
with the following power rating and manufactured after the following 
dates:
    (1) Less than 19 kW and manufactured on or after January 1, 2000;

[[Page 48]]

    (2) Greater than or equal to 19 kW but less than 37 kW and 
manufactured on or after January 1, 1999;
    (3) Greater than or equal to 37 kW but less than 75 kW and 
manufactured on or after January 1, 1998;
    (4) Greater than or equal to 75 kW but less than 130 kW and 
manufactured on or after January 1, 1997;
    (5) Greater than or equal to 130 kW but less than or equal to 560 kW 
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 up to 
one calendar year prior to the effective date of mandatory certification 
to earn emission credits under the averaging, banking, and trading 
program. Such optionally certified engines are subject to all provisions 
relating to mandatory certification and enforcement described in this 
part.
    (c) Engines meeting the voluntary standards described in Sec. 
89.112(f) may be designated as Blue Sky Series engines through the 2004 
model year.
    (d) Implementation flexibility for equipment and vehicle 
manufacturers and post-manufacture marinizers. Nonroad equipment and 
vehicle manufacturers and post-manufacture marinizers may take any of 
the otherwise prohibited actions identified in Sec. 89.1003(a)(1) and 
(b)(4) with respect to nonroad equipment and vehicles and marine diesel 
engines, subject to the requirements of paragraph (e) of this section. 
The following allowances apply separately to each engine power category 
subject to standards under Sec. 89.112:
    (1) Percent-of-production allowances. (i) Equipment rated at or 
above 37 kW. For nonroad equipment and vehicles with engines rated at or 
above 37 kW, a manufacturer may take any of the actions identified in 
Sec. 89.1003(a)(1) for a portion of its U.S.-directed production volume 
of such equipment and vehicles during the seven years immediately 
following the date on which Tier 2 engine standards first apply to 
engines used in such equipment and vehicles, provided that the seven-
year sum of these portions in each year, as expressed as a percentage 
for each year, does not exceed 80, and provided that all such equipment 
and vehicles or equipment contain Tier 1 or Tier 2 engines;
    (ii) Equipment rated under 37 kW. For nonroad equipment and vehicles 
and marine diesel engines with engines rated under 37 kW, a manufacturer 
may take any of the actions identified in Sec. 89.1003(a)(1) for a 
portion of its U.S.-directed production volume of such equipment and 
vehicles during the seven years immediately following the date on which 
Tier 1 engine standards first apply to engines used in such equipment 
and vehicles, provided that the seven-year sum of these portions in each 
year, as expressed as a percentage for each year, does not exceed 80.
    (2) Small volume allowances. A nonroad equipment or vehicle 
manufacturer or post-manufacture marinizer may exceed the production 
percentages in paragraph (d)(1) of this section, provided that in each 
regulated power category the manufacturer's total of excepted nonroad 
equipment and vehicles and marine diesel engines:
    (i) Over the years in which the percent-of-production allowance 
applies does not exceed 100 units times the number of years in which the 
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 using engines not 
belonging to any engine family, from more than one engine manufacturer. 
For purposes of this paragraph (d)(2)(iii), engine family refers to 
engines that have common characteristics as described in Sec. 89.116.
    (3) Inclusion of previous-tier engines. Nonroad equipment and 
vehicles and marine diesel engines built with previous tier or 
noncertified engines under the existing inventory provisions of Sec. 
89.1003(b)(4) need not be included in determining compliance with 
paragraphs (d)(1) and (d)(2) of this section.
    (e) Recordkeeping and calculation to verify compliance. The 
following shall apply to nonroad equipment or vehicle manufacturers and 
post-manufacture marinizers who produce excepted equipment or vehicles 
or marine diesel

[[Page 49]]

engines under the provisions of paragraph (d) of this section:
    (1) For each power category in which excepted nonroad equipment or 
vehicles or marine diesel engines are produced, a calculation to verify 
compliance with the requirements of paragraph (d) of this section shall 
be made by the nonroad equipment or vehicle manufacturer or post-
manufacture marinizer. This calculation shall be made no later than 
December 31 of the year following the last year in which allowances are 
used, and shall be based on actual production information from the 
subject years. If both the percent-of-production and small volume 
allowances have been exceeded, then the manufacturer is 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 and vehicles and 
marine diesel engines excepted under the provisions of paragraph (d) of 
this section, for each power category in which exceptions are taken. 
These records shall include equipment and engine model numbers, serial 
numbers, and dates of manufacture, and engine rated power. In addition, 
the manufacturer shall keep records sufficient to demonstrate the 
verifications of compliance required in paragraph (e)(1) of this 
section. All records shall be kept until at least two full years after 
the final year in which allowances are available for each power 
category, and shall be made available to EPA upon request.
    (f) Hardship relief. Nonroad equipment and vehicle manufacturers and 
post-manufacture marinizers may take any of the otherwise prohibited 
actions identified in Sec. 89.1003(a)(1) if approved by the 
Administrator, and subject to the following requirements:
    (1) Application for relief must be submitted to the Engine Programs 
and Compliance Division of the EPA in writing prior to the earliest date 
in which the applying manufacturer would be in violation of Sec. 
89.1003. The manufacturer must submit evidence showing that the 
requirements for approval have been met.
    (2) The applying manufacturer must not be the manufacturer of the 
engines used in the equipment for which relief is sought. This 
requirement does not apply to post-manufacture marinizers.
    (3) The conditions causing the impending violation must not be 
substantially the fault of the applying manufacturer.
    (4) The conditions causing the impending violation must be such that 
the applying manufacturer will experience serious economic hardship if 
relief is not granted.
    (5) The applying manufacturer must demonstrate that no allowances 
under paragraph (d) of this section will be available to avoid the 
impending violation.
    (6) Any relief granted must begin within one year after the 
implementation date of the standard applying to the engines being used 
in the equipment, or to the marine diesel engines, for which relief is 
requested, and may not exceed one year in duration.
    (7) The Administrator may impose other conditions on the granting of 
relief including provisions to recover the lost environmental benefit.
    (g) Allowance for the production of engines. Engine manufacturers 
may take any of the otherwise prohibited actions identified in Sec. 
89.1003(a)(1) with regard to uncertified engines, Tier 1 engines, or 
Tier 2 engines, as appropriate, if the engine manufacturer has received 
written assurance from the equipment manufacturer that the engine is 
required to meet the demand for engines 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 of the Tier 
1 standards in Sec. 89.112 for marine diesel engines rated under 37 kW 
by one year, instead of using the provisions of paragraphs (d) and (f) 
of this section. Post-manufacture marinizers wishing to take advantage 
of this provision must inform the Director of the Engine Programs and 
Compliance Division of their intent to do so in writing before the date 
that the standards would otherwise take effect.

[[Page 50]]

    (i) Additional exemptions for technical or engineering hardship. You 
may request additional engine allowances under paragraph (d)(1) of this 
section for 56-560 kW power categories or, 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 for which you, or an affiliated company, 
do not also produce the engine. After considering the circumstances, we 
may permit you to introduce into U.S. commerce equipment with such 
engines that do not comply with Tier 3 emission standards, as follows:
    (1) We may approve additional exemptions if extreme and unusual 
circumstances that are clearly outside your control and that could not 
have been avoided with reasonable discretion have resulted in technical 
or engineering problems that prevent you from meeting the requirements 
of this part. You must show that you exercised prudent planning and have 
taken all reasonable steps to minimize the scope of your request for 
additional allowances.
    (2) To apply for exemptions under this paragraph (i), send the 
Designated Compliance Officer and the Designated Enforcement Officer a 
written request as soon as possible before you are in violation. In your 
request, include the following information:
    (i) Describe your process for designing equipment.
    (ii) Describe how you normally work cooperatively or concurrently 
with your engine supplier to design products.
    (iii) Describe the engineering or technical problems causing you to 
request the exemption and explain why you have not been able to solve 
them. Describe the extreme and unusual circumstances that led to these 
problems and explain how they were unavoidable.
    (iv) Describe any information or products you received from your 
engine supplier related to equipment design--such as written 
specifications, performance data, or prototype engines--and when you 
received it.
    (v) Compare the design processes of the equipment model for which 
you need additional exemptions and that for other models for which you 
do not need additional exemptions. Explain the technical differences 
that justify your request.
    (vi) Describe your efforts to find and use other compliant engines, 
or otherwise explain why none is available.
    (vii) Describe the steps you have taken to minimize the scope of 
your request.
    (viii) Include other relevant information. You must give us other 
relevant information if we ask for it.
    (ix) Estimate the increased percent of production you need for each 
equipment model covered by your request, as described in paragraph 
(i)(3) of this section. Estimate the increased number of allowances 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 under 
paragraph (d)(1) of this section, subject to the following limitations:
    (i) The additional allowances will not exceed 50 percent for each 
power category.
    (ii) You must use up the allowances under paragraph (d)(1) of this 
section before using any additional allowance under this paragraph (i).
    (iii) Any allowances we approve under this paragraph (i)(3) expire 
24 months after the provisions of this section start for a given power 
category. You may use these allowances only for the specific equipment 
models covered by your request.
    (4) We may approve your request to increase the allowances for the 
37-75 kW power category under paragraph (d)(2) of this section, subject 
to the following limitations:
    (i) You are eligible for additional allowances under this paragraph 
(i)(4) only if you are a small equipment manufacturer and you do not use 
the provisions of paragraph (i)(3) of this section to obtain additional 
allowances for the 37-75 kW power category.
    (ii) You must use up all the available allowances for the 37-75 kW 
power category under paragraph (d)(2) of this section in a given year 
before using

[[Page 51]]

any additional allowances under this paragraph (i)(4).
    (iii) Base your request only on equipment you produce with engines 
at or above 37 kW and below 75 kW. You may use any additional allowances 
only for equipment you produce with engines at or above 37 kW and below 
75 kW.
    (iv) Any allowances we approve under this paragraph (i)(4) expire 24 
months after the provisions of this section start for this power 
category. These additional allowances are not subject to the annual 
limits specified in paragraph (d)(2) of this section. You may use these 
allowances only for the specific equipment models covered by your 
request.
    (v) The total allowances under paragraph (d)(2) of this section for 
the 37-75 kW power category will not exceed 700 units. The total 
allowances under this paragraph (i)(4) follow the requirements under 
paragraph (d)(2) of this section for the 37-75 kW power category and 
will not exceed 200 units. Therefore, the total maximum allowances for 
the 37-75 kW power category will not exceed 900 units.
    (5) For purposes of this paragraph (i), small equipment manufacturer 
means an equipment manufacturer that had annual U.S.-directed production 
volume of equipment using nonroad diesel engines between 37 and 75 kW of 
no more than 3,000 units in 2002 and all earlier calendar years, and has 
750 or fewer employees (500 or fewer employees for nonroad equipment 
manufacturers that produce no construction equipment or industrial 
trucks). For manufacturers owned by a parent company, the production 
limit applies to the production of the parent company and all its 
subsidiaries and the employee limit applies to the total number of 
employees of the parent company and all its subsidiaries.
    (6) The following provisions for adjusted flexibilities for Tier 4 
engines apply to equipment manufacturers that are granted additional 
exemptions 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 or 
engineering hardship exemptions available for Tier 4 engines in the 
amounts shown in Table 1 of this section.
    (ii) Table 1 of this section shows the percent of production 
flexibility and technical or engineering hardship exemptions that you 
must forfeit for Tier 4 engines. The amount of Tier 4 flexibility 
forfeited by each equipment manufacturer depends on the percent of 
production flexibility used for Tier 2 engines and the technical or 
engineering hardship exemptions granted for Tier 3 engines in the 
proportions shown in Table 1. For example, if you used 45 percent of 
your production flexibility for Tier 2 engines, you must forfeit 2 
percent of your production flexibility for Tier 4 engines for every 1 
percent of technical or engineering hardship flexibility granted for 
Tier 3 engines. In addition you must also forfeit 1 percent of any 
technical or engineering hardship exemptions available for Tier 4 
engines for every 1 percent technical or engineering hardship exemptions 
available for Tier 3 engines. If you use the Tier 3 technical or 
engineering hardship allowances for 5 percent of your equipment in each 
of two different years, you have used a total allowance of 10 percent. 
Therefore you must forfeit a total of 20 percent of production 
flexibility for Tier 4 engines plus 10 percent of any technical or 
engineering hardship exemptions available for Tier 4 engines.

      Table 1 of Sec.  89.102--Adjustments to Tier 4 Flexibilities
------------------------------------------------------------------------
                                                 Percent of   Percent of
                                                  forfeit      forfeit
 Percent of use Tier 2 production flexibility      Tier 4       Tier 4
                                                 production   tech./eng.
                                                flexibility   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 power 
category ranges, the availability of technical relief will be further 
adjusted based on the sales volume by power category. Table 2 of this 
section shows the applicable power categories for Tier 3 and Tier 4. The 
Tier 3 power categories of 37kW to 75kW and 75kW to 130kW correspond to 
the Tier 4 power category of

[[Page 52]]

56kW to 130kW. For the Tier 3 equipment in the 37 to 75kW category, you 
must only use the sales volume for equipment that uses engines with a 
rated power greater than 56kW. For example, if you have a Tier 3 piece 
of equipment that uses a 40 kW engine, the sales of the equipment are 
counted in the Tier 4 power category of 19kW to 56kW. If you have a Tier 
3 piece of equipment that uses a 60kW engine, the sales of the equipment 
are counted in the Tier 4 power category of 56kW to 130kW. The Tier 3 
power categories of 130kW to 225kW, 225kW to 450kW and 450kW to 560kW 
correspond to the Tier 4 power category of 130kW to 560kW. You will need 
to sum the sales of the Tier 3 power categories that correspond to the 
Tier 4 power category during each calendar year in which Tier 3 
technical relief is used. The sum of all the Tier 3 units that are 
produced and exempted by the technical relief divided by the sum of all 
the Tier 3 units sold in the corresponding Tier 4 power category will 
determine the percentage of Tier 4 flexibility affected. For example, if 
you produce 50 units using Tier 3 technical relief in the range of 130kW 
to 225kW, and you produce 50 units using Tier 3 technical relief in the 
range of 225 to 450kW, and no units are produced in the 450kW to 560kW 
range, and your overall sales volume for the power ranges of 130kW to 
560kW in Tier 3 is 400 units, the amount of Tier 3 technical relief used 
is 100/400 or 25 percent. Because you forfeit 1 percent of your Tier 4 
technical relief for every 1 percent of Tier 3 technical relief used, 
then you will lose 25 percent of your Tier 4 technical relief in the 
130kW to 560kW power range category. If you used 45 percent of your 
production flexibility for Tier 2 engines, you must forfeit 2 percent of 
production flexibility for Tier 4 engines for every 1 percent of Tier 3 
technical relief. Therefore, you will forfeit 50 percent of your Tier 4 
production allowance in the 130kW to 560kW power range category.

     Table 2 of Sec.  89.102--Corresponding Tier 3 and Tier 4 Power
                               Categories
------------------------------------------------------------------------
         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 and 56kW by small
  volume equipment manufacturers.
\**\ Includes only equipment that uses engines with a rated power
  greater than 56kw.

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

[[Page 53]]

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

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
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. All 
terms not defined herein or in subpart A have the meaning given them in 
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 of 
the engine.
    (1) For all engines rated under 19 kW, and for constant speed 
engines rated under 37 kW with rated speeds greater than or equal to 
3,000 rpm, the useful life is a period of 3,000 hours or five years of 
use, 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 a 
period of 8,000 hours of operation or ten years of use, whichever first 
occurs.
    (b) Engines are subject to recall testing for a period based on the 
rated power and rated speed of the engines. However, in a recall, 
engines in the subject class or category would be subject to recall 
regardless of actual years or hours of operation.
    (1) For all engines rated under 19 kW, and for constant speed 
engines rated under 37 kW with rated speeds greater than or equal to 
3,000 rpm, the engines are subject to recall testing for a period of 
2,250 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 five 
years of use, whichever first occurs.
    (3) For all engines rated at or above 37 kW, the engines are subject 
to recall for a period of 6,000 hours of operation or seven years of 
use, whichever first occurs.

[[Page 54]]

    (c) The warranty periods for warranties imposed by the Clean Air Act 
and Sec. 89.1007 for all engines rated under 19 kW, and for constant 
speed engines rated under 37 kW with rated speeds greater than or equal 
to 3,000 rpm, are 1,500 hours of operation or two years of use, 
whichever first occurs. For all other engines, the warranty periods for 
warranties imposed by the Clean Air Act and Sec. 89.1007 are 3,000 
hours of operation or five years of use, whichever first occurs.
    (d) Manufacturers may apply to the Administrator for approval for a 
shorter useful life period for engines that are subject to severe 
service in seasonal equipment, or are designed specifically for lower 
useful life hours to match equipment life. Such an application must be 
made prior to certification.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
56998, Oct. 23, 1998]



Sec. 89.105  Certificate of conformity.

    Every manufacturer of a new nonroad compression-ignition engine must 
obtain a certificate of conformity covering the engine family, as 
described in Sec. 89.116. The certificate of conformity must be 
obtained from the Administrator prior to selling, offering for sale, 
introducing into commerce, or importing into the United States the 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 system 
for the purpose of complying with emission standards if such system will 
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 an 
unreasonable risk to public health, welfare, or safety while operating. 
For example, this would apply if the engine emits a noxious or toxic 
substance it would otherwise not emit that contributes to such an 
unreasonable risk.

[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 operation outside 
normal emission test conditions and reduces emission control 
effectiveness.
    (1) Defeat device includes any auxiliary emission control device 
(AECD) that reduces the effectiveness of the emission control system 
under conditions which may reasonably be expected to be encountered in 
normal operation and use unless such conditions are included in the test 
procedure.
    (2) Defeat device does not include such items which either operate 
only during engine starting or are necessary to protect the engine (or 
equipment in which it is installed) against damage or accident during 
its 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 must comply 
with all requirements of this subpart for any adjustment in the 
physically adjustable range.
    (b) An operating parameter is not considered adjustable if it is 
permanently sealed or otherwise not normally accessible using ordinary 
tools.
    (c) The Administrator may require that adjustable parameters be set 
to any specification within its adjustable range for certification, 
selective enforcement audit, or in-use testing to determine compliance 
with the requirements of this subpart.
    (d) For engines that use noncommercial fuels significantly different 
than the specified test fuel of the same type, the manufacturer may ask 
to use the parameter-adjustment provisions of 40 CFR 1039.615 instead of 
those in this section. Engines certified under this

[[Page 55]]

paragraph (d) must be in a separate engine family. See 40 CFR 1039.801 
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 maintenance 

intervals.

    (a) The manufacturer must furnish or cause to be furnished to the 
ultimate purchaser of each new nonroad engine subject to standards under 
this part written instructions for the maintenance needed to ensure 
proper functioning of the emission control system. Paragraphs (b) 
through (h) of this section do not apply to Tier 1 engines with rated 
power at or above 37 kW.
    (b) Maintenance performed on equipment, engines, subsystems or 
components used to determine exhaust emission deterioration factors is 
classified as either emission-related or nonemission-related and each of 
these can be classified as either scheduled or unscheduled. Further, 
some emission-related maintenance is also classified as critical 
emission-related maintenance.
    (c) This paragraph (c) specifies emission-related scheduled 
maintenance for purposes of obtaining durability data for nonroad 
engines. The maintenance intervals specified below are minimum 
intervals:
    (1) All emission-related scheduled maintenance for purposes of 
obtaining durability data must occur at the same or longer hours of use 
intervals as those specified in the manufacturer's maintenance 
instructions furnished to the ultimate purchaser of the engine under 
paragraph (a) of this section. This maintenance schedule may be updated 
as necessary throughout the testing of the engine, provided that no 
maintenance operation is deleted from the maintenance schedule after the 
operation has been performed on the test equipment or engine.
    (2) Any emission-related maintenance which is performed on 
equipment, engines, subsystems, or components must be technologically 
necessary to ensure in-use compliance with the emission standards. The 
manufacturer must submit data which demonstrate to the Administrator 
that all of the emission-related scheduled maintenance which is to be 
performed is technologically necessary. Scheduled maintenance must be 
approved by the Administrator prior to being performed or being included 
in the maintenance instructions provided to the purchasers under 
paragraph (a) of this section.
    (i) The Administrator may require longer maintenance intervals than 
those listed in paragraphs (c)(3) and (c)(4) of this section where the 
listed intervals are not technologically necessary.
    (ii) The Administrator may allow manufacturers to specify shorter 
maintenance intervals than those listed in paragraphs (c)(3) and (c)(4) 
of this section where technologically necessary for engines rated under 
19 kW, or for constant speed engines rated under 37 kW with rated speeds 
greater than or equal to 3,000 rpm.
    (3) The adjustment, cleaning, repair, or replacement of items listed 
in paragraphs (c)(3)(i) through (c)(3)(iii) of this section shall occur 
at 1,500 hours of use and at 1,500-hour intervals thereafter.
    (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 hours 
of use and at 3,000-hour intervals thereafter for nonroad compression-
ignition engines rated under 130 kW, or at 4,500-hour intervals 
thereafter for nonroad compression-ignition engines rated at or above 
130 kW.
    (i) Fuel injectors.
    (ii) Turbocharger.
    (iii) Electronic engine control unit and its associated sensors and 
actuators.
    (iv) Particulate trap or trap-oxidizer system (including related 
components).
    (v) Exhaust gas recirculation system (including all related control 
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., a component

[[Page 56]]

whose sole or primary purpose is to reduce emissions or whose failure 
will significantly degrade emission control and whose function is not 
integral to the design and performance of the engine).
    (d) Scheduled maintenance not related to emissions which is 
reasonable and technologically necessary (e.g., oil change, oil filter 
change, fuel filter change, air filter change, cooling system 
maintenance, adjustment of idle speed, governor, engine bolt torque, 
valve lash, injector lash, timing, lubrication of the exhaust manifold 
heat control valve, etc.) may be performed on durability vehicles at the 
least frequent intervals recommended by the manufacturer to the ultimate 
purchaser, (e.g., not the intervals recommended for severe service).
    (e) Adjustment of engine idle speed on emission data engines may be 
performed once before the low-hour emission test point. Any other 
engine, emission control system, or fuel system adjustment, repair, 
removal, disassembly, cleaning, or replacement on emission data vehicles 
shall be performed only with advance approval of the Administrator.
    (f) Equipment, instruments, or tools may not be used to identify 
malfunctioning, maladjusted, or defective engine components unless the 
same or equivalent equipment, instruments, or tools will be available to 
dealerships and other service outlets and:
    (1) Are used in conjunction with scheduled maintenance on such 
components; or
    (2) Are used subsequent to the identification of a vehicle or engine 
malfunction, as provided in paragraph (e) of this section for emission 
data engines; or
    (3) Specifically authorized by the Administrator.
    (g) All test data, maintenance reports, and required engineering 
reports shall be compiled and provided to the Administrator in 
accordance 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-related 
components.
    (i) Catalytic converter.
    (ii) Electronic engine control unit and its associated sensors and 
actuators.
    (iii) Exhaust gas recirculation system (including all related 
filters, 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., a component 
whose sole or primary purpose is to reduce emissions or whose failure 
will significantly degrade emission control and whose function is not 
integral to the design and performance of the engine).
    (2) All critical emission-related scheduled maintenance must have a 
reasonable likelihood of being performed in use. The manufacturer must 
show the reasonable likelihood of such maintenance being performed in-
use. Critical emission-related scheduled maintenance items which satisfy 
one of the conditions defined in paragraphs (h)(2)(i) through (h)(2)(vi) 
of this section will be accepted as having a reasonable likelihood of 
being performed in use.
    (i) Data are presented which establish for the Administrator a 
connection between emissions and vehicle performance such that as 
emissions increase due to lack of maintenance, vehicle performance will 
simultaneously deteriorate to a point unacceptable for typical 
operation.
    (ii) Survey data are submitted which adequately demonstrate to the 
Administrator with an 80 percent confidence level that 80 percent of 
such engines already have this critical maintenance item performed in-
use at the recommended interval(s).
    (iii) A clearly displayed visible signal system approved by the 
Administrator is installed to alert the equipment operator that 
maintenance is due. A signal bearing the message ``maintenance needed'' 
or ``check engine,'' or a similar message approved by the Administrator, 
shall be actuated at the appropriate usage point or by component 
failure. This signal must be continuous while the engine is in operation 
and not be easily eliminated without performance of the required 
maintenance.

[[Page 57]]

Resetting the signal shall be a required step in the maintenance 
operation. The method for resetting the signal system shall be approved 
by the Administrator. The system must not be designed to deactivate upon 
the end of the useful life of the engine or thereafter.
    (iv) A manufacturer may desire to demonstrate through a survey that 
a critical maintenance item is likely to be performed without a visible 
signal on a maintenance item for which there is no prior in-use 
experience without the signal. To that end, the manufacturer may in a 
given model year market up to 200 randomly selected vehicles per 
critical emission-related maintenance item without such visible signals, 
and monitor the performance of the critical maintenance item by the 
owners to show compliance with paragraph (h)(2)(ii) of this section. 
This option is restricted to two consecutive model years and may not be 
repeated until any previous survey has been completed. If the critical 
maintenance involves more than one engine family, the sample will be 
sales weighted to ensure that it is representative of all the families 
in question.
    (v) The manufacturer provides the maintenance free of charge, and 
clearly informs the customer that the maintenance is free in the 
instructions provided under paragraph (a) of this section.
    (vi) The manufacturer uses any other method which the Administrator 
approves as establishing a reasonable likelihood that the critical 
maintenance will be performed in-use.
    (3) Visible signal systems used under paragraph (h)(2)(iii) of this 
section are considered an element of design of the emission control 
system. Therefore, disabling, resetting, or otherwise rendering such 
signals inoperative without also performing the indicated 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 a 
permanent and legible label identifying each nonroad engine. The label 
must meet the following requirements:
    (1) Be attached in such a manner that it cannot be removed without 
destroying or defacing the label;
    (2) Be durable and readable for the entire engine life;
    (3) Be secured to an engine part necessary for normal engine 
operation 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 person 
after the engine is installed in the equipment. A supplemental label 
meeting all the requirements of this section may be attached to a 
location other than the engine, in cases where the required label must 
be 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 trademark 
instead of the manufacturer's if the provisions of Sec. 89.1009 are 
met.
    (3) EPA standardized engine family designation;
    (4) Engine displacement;
    (5) Advertised power;
    (6) Engine tuneup specifications and adjustments. These should 
indicate the proper transmission position during tuneup, and accessories 
(for example, air conditioner), if any, that should be in operation;
    (7) Fuel requirements;
    (8) Date of manufacture (month and year). The manufacturer may, in 
lieu of including the date of manufacture on the engine label, maintain 
a record of the engine manufacture dates. The manufacturer shall provide 
the date of manufacture records to the Administrator upon request;
    (9) Family emission limits (FELs) if applicable;
    (10) The statement: ``This engine conforms to [model year] U.S. EPA 
regulations large nonroad compression- ignition engines;''
    (11) Engines belonging to an engine family that has been certified 
as a constant-speed engine using the test cycle specified in Table 2 of 
appendix B to subpart E of this part must contain the

[[Page 58]]

statement on the label: ``constant-speed only''; and
    (12) Engines meeting the voluntary standards described in Sec. 
89.112(f)(1) to be designated as Blue Sky Series engines must contain 
the statement on the label: ``Blue Sky Series''.
    (c) Other information concerning proper maintenance and use or 
indicating compliance or noncompliance with other standards may be 
indicated on the label.
    (d) Each engine must have a legible unique engine identification 
number permanently affixed to or engraved on the engine.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
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 requirements are 
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 particulate 

matter exhaust emission standards.

    (a) Exhaust emission from nonroad engines to which this subpart is 
applicable shall not exceed the applicable exhaust emission standards 
contained 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 the 
procedures set forth in subpart E of this part.

[[Page 60]]

    (c) Exhaust emission of particulate matter is measured using the 
California Regulations for New 1996 and Later Heavy-Duty Off-Road Diesel 
Cycle Engines. This procedure is incorporated by reference. See Sec. 
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 in the averaging, 
banking, and trading program, the provisions of which are specified in 
subpart C of this part. The manufacturer must set a family emission 
limit (FEL) not to exceed the levels contained in Table 2. The FEL 
established by the manufacturer serves as the standard for that engine 
family. Table 2 follows:

[[Page 61]]

[GRAPHIC] [TIFF OMITTED] TR23OC98.002

    (e) Naturally aspirated nonroad engines to which this subpart is 
applicable shall not discharge crankcase emissions into the ambient 
atmosphere, unless such crankcase emissions are permanently routed into 
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 voluntary standards 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 are subject 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 emissions are 
measured using the procedures set forth in 40 CFR part 1065, in lieu of 
the procedures set forth in subpart E of this part. CO emissions may be 
measured using the procedures set forth either in 40 CFR part 1065 or in 
subpart E of this part. Manufacturers may use an alternate procedure to 
demonstrate the desired level of emission control if approved in advance 
by the Administrator. Engines meeting the requirements to qualify as 
Blue Sky Series engines must be capable of maintaining a comparable 
level of emission control when tested using the procedures set forth in 
paragraph (c) of this section and subpart E of this part. The numerical 
emission levels measured using the procedures from subpart E of this 
part may be up to 20 percent higher than those measured using the 
procedures from 40 CFR part 1065 and still be considered comparable.
    (g) Manufacturers of engines at or above 37 kW and below 56 kW from 
model years 2008 through 2012 that are subject to the standards of this 
section under 40 CFR 1039.102 must take the following additional steps:
    (1) State the applicable PM standard on the emission control 
information label.
    (2) Add information to the emission-related installation 
instructions to clarify the equipment manufacturer's obligations under 
40 CFR 1039.104(f).

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
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 for 
which 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 or 
lugging modes.
    (b) Opacity levels are to be measured and calculated as set forth in 
40 CFR part 86, subpart I. Notwithstanding the provisions of 40 CFR part 
86, subpart I, two-cylinder nonroad engines may be tested using an 
exhaust muffler that is representative of exhaust mufflers used with the 
engines in use.
    (c) The following engines are exempt from the requirements of this 
section:
    (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 FR 56995, 
57003, Oct. 23, 1998]



Sec. 89.114  Special and alternate test procedures.

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

[[Page 63]]

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

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
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 applicable 
standards and requirements, the engine manufacturer must submit to the 
Administrator a completed application for a certificate of conformity.
    (b) The application must be approved and signed by the authorized 
representative of the manufacturer.
    (c) The application will be updated and corrected by amendment as 
provided for in Sec. 89.123 to accurately reflect the manufacturer's 
production.
    (d) Required content. Each application must include the following 
information:
    (1) A description of the basic engine design including, but not 
limited to, the engine family specifications, the provisions of which 
are contained in Sec. 89.116;
    (2) An explanation of how the emission control system operates, 
including a detailed description of all emission control system 
components, each auxiliary emission control device (AECD), and all fuel 
system components to be installed on any production or test engine(s);
    (3) Proposed test fleet selection and the rationale for the test 
fleet selection;
    (4) Special or alternate test procedures, if applicable;
    (5) The period of operation necessary to accumulate service hours on 
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 associated production 
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 to establish 
each physically adjustable range; and
    (v) Information relating to why the physical limits or stops used to 
establish the physically adjustable range of each parameter, or any 
other means used to inhibit adjustment, are effective in preventing 
adjustment of parameters to settings outside the manufacturer's intended 
physically adjustable ranges on in-use engines;
    (7) For families participating in the averaging, banking, and 
trading program, the information specified in subpart C of this part;
    (8) A description of the test equipment and fuel proposed to be 
used;
    (9) All test data obtained by the manufacturer on each test engine;
    (10) An unconditional statement certifying that all engines in the 
engine family comply with all requirements of this part and the Clean 
Air Act.
    (11) A statement indicating whether the engine family contains only 
nonroad engines, only stationary engines, or both.

[[Page 64]]

    (e) At the Administrator's request, the manufacturer must supply 
such additional information as may be required to evaluate the 
application including, but not limited to, projected nonroad engine 
production.
    (f)(1) The Administrator may modify the information submission 
requirements of paragraph (d) of this section, provided that all of the 
information specified therein is maintained by the engine manufacturer 
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 this section whether or 
not such information is actually submitted to the Administrator for any 
particular model year.
    (3) The Administrator may review an engine manufacturer's records at 
any time. At the Administrator's discretion, this review may take place 
either at the manufacturer's facility or at another facility designated 
by the Administrator.
    (g) The manufacturer must name an agent for service located in the 
United States. Service on this agent constitutes service on the 
manufacturer or any of its officers or employees for any action by EPA 
or otherwise by the United States related to the requirements of this 
part.

[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 FR 39184, 
July 11, 2006; 72 FR 53129, Sept. 18, 2007]



Sec. 89.116  Engine families.

    (a) A manufacturer's product line is divided into engine families 
that are comprised of engines expected to have similar emission 
characteristics 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, catalytic 
converter or particulate trap);
    (5) Combustion chamber design;
    (6) Bore;
    (7) Stroke;
    (8) Number of cylinders, (engines with aftertreatment devices only); 
and
    (9) Cylinder arrangement (engines with aftertreatment devices only).
    (c) Upon a showing by the manufacturer that the useful life period 
emission characteristics are expected to be similar, engines differing 
in one or more of the characteristics in paragraph (b) of this section 
may be grouped in the same engine family.
    (d) Upon a showing by the manufacturer that the expected useful life 
period emission characteristics will be different, engines identical in 
all the characteristics of paragraph (b) of this section may be divided 
into separate engine families.
    (e)(1) This paragraph (e) applies only to the placement of Tier 1 
engines with power ratings under 37 kW into engine families. The 
provisions of paragraphs (a) through (d) of this section also apply to 
these engines. The power categories referred to in this paragraph (e) 
are those for which separate standards or implementation dates are 
described in Sec. 89.112.
    (2) A manufacturer may place engines with power ratings in one power 
category into an engine family comprised of engines with power ratings 
in another power category, and consider all engines in the engine family 
as being in the latter power category for the purpose of determining 
compliance with the standards and other requirements of this part, 
subject to approval in advance by the Administrator and the following 
restrictions:
    (i) The engines that have power ratings outside the engine family's 
power category must constitute less than half of the engine family's 
sales in each model year for which the engine family grouping is made; 
and
    (ii) The engines that have power ratings outside the engine family's 
power category must have power ratings that are within ten percent of 
either of the two power levels that define the engine family'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 
other requirements of this part are at least as stringent for the engine 
family'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 FR 56995, 
57003, Oct. 23, 1998]



Sec. 89.117  Test fleet selection.

    (a) The manufacturer must select for testing, from each engine 
family, the engine with the most fuel injected per stroke of an 
injector, primarily at the speed of maximum torque and secondarily at 
rated speed.
    (b) Each engine in the test fleet must be constructed to be 
representative of production engines.
    (c) After review of the manufacturer's test fleet, the Administrator 
may select from the available fleet one additional test engine from each 
engine family.
    (d) For establishing deterioration factors, the manufacturer shall 
select the engines, subsystems, or components to be used to determine 
exhaust emission deterioration factors for each engine-family control 
system combination. Engines, subsystems, or components shall be selected 
so that their emission deterioration characteristics are expected to 
represent those of in-use engines, based on good engineering judgment.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57003, Oct. 23, 1998]



Sec. 89.118  Deterioration factors and service accumulation.

    This section applies to service accumulation used to determine 
deterioration factors and service accumulation used to condition test 
engines. Paragraphs (a) and (b) of this section apply only for service 
accumulation used to condition test engines. Paragraph (e) of this 
section applies only for service accumulation used to determine 
deterioration factors. Paragraphs (c) and (d) of this section apply for 
all service accumulation required by this part.
    (a)(1) Each test engine in the test fleet must be operated with all 
emission control systems operating properly for a period sufficient to 
stabilize emissions.
    (2) A manufacturer may elect to consider as stabilized emission 
levels from engines with no more than 125 hours of service.
    (b) No maintenance, other than recommended lubrication and filter 
changes, may be performed during service accumulation without the 
Administrator's approval.
    (c) Service accumulation should be performed in a manner using good 
engineering judgment to ensure that emissions are representative of in-
use engines.
    (d) The manufacturer must maintain, and provide to the Administrator 
if requested, records stating the rationale for selecting the service 
accumulation period and records describing the method used to accumulate 
service hours on the test engine(s).
    (e) This paragraph (e) describes service accumulation and 
alternative requirements for the purpose of developing deterioration 
factor.
    (1) Service accumulation on engines, subsystems, or components 
selected by the manufacturer under Sec. 89.117(d). The manufacturer 
shall describe the form and extent of this service accumulation in the 
application for certification.
    (2) Determination of exhaust emission deterioration factors. The 
manufacturer shall determine the deterioration factors in accordance 
with the applicable provisions of this part based on service 
accumulation and related testing, according to the manufacturer's 
procedures, except as provided in paragraph (e)(3) of this section.
    (3) Alternatives to service accumulation and testing for the 
determination of a deterioration factor. A written explanation of the 
appropriateness of using an alternative must be included in the 
application for certification.
    (i) Carryover and carryacross of durability emission data. In lieu 
of testing an emission data or durability data engine selected under 
Sec. 89.117(d), a manufacturer may, with Administrator approval, use 
exhaust emission deterioration data on a similar engine for which 
certification to the same standard has previously been obtained or for 
which all applicable data required under Sec. 89.124 has previously 
been submitted. This data must be submitted in the application for 
certification.
    (ii) Use of on-highway deterioration data. In the case where a 
manufacturer produces a certified on-highway engine that is similar to 
the nonroad engine

[[Page 66]]

to be certified, deterioration data from the on-highway engine may be 
applied to the nonroad engine. This application of deterioration data 
from an on-highway engine to a nonroad engine is subject to 
Administrator approval, and the determination of whether the engines are 
similar must be based on good engineering judgment.
    (iii) Engineering analysis for established technologies. (A) In the 
case where an engine family uses established technology, an analysis 
based on good engineering practices may be used in lieu of testing to 
determine a deterioration factor for that engine family, subject to 
Administrator approval.
    (B) Engines for which the certification levels are not at or below 
the Tier 3 NMHC+NOX standards described in Sec. 89.112 are 
considered established technology, except as provided in paragraph 
(e)(3)(iii)(D) of this section.
    (C) Manufacturers may petition the Administrator to consider an 
engine with a certification level below the Tier 3 +NOX 
standards as established technology. This petition must be based on 
proof that the technology used is not significantly different than that 
used on engines that have certification levels that are not below the 
Tier 3 NMHC+NOX levels.
    (D) Engines using exhaust gas recirculation or aftertreatment are 
excluded 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 the 
Administrator that all data, analyses, test procedures, evaluations, and 
other documents, on which the deterioration factor is based, are 
available to the Administrator upon request.
    (iv) Interim provision for engines rated under 37 kW. For model year 
1999 and 2000 engines rated under 37 kW, manufacturers may determine 
deterioration factors based on good engineering judgement and reasonably 
available information. The manufacturer must maintain and provide to the 
Administrator, if requested, all information used to determine 
deterioration factors for these engines.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57003, Oct. 23, 1998]



Sec. 89.119  Emission tests.

    (a) Manufacturer testing. (1) Upon completion of service 
accumulation, the manufacturer must test each test engine using the 
specified test procedures, except as provided in Sec. 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-Duty 
Off-Road Diesel Cycle Engines. This procedure has been incorporated by 
reference. See Sec. 89.6; and
    (iii) Part 86, subpart I of this chapter.
    (2) Each test engine must be configured to be representative of 
actual in-use operation. The Administrator may specify the adjustment of 
any adjustable parameter. All test results must be reported to the 
Administrator.
    (b) Confirmatory testing. The Administrator may conduct confirmatory 
testing or other testing on any test engine. The manufacturer must 
deliver test engines as directed by the Administrator. When the 
Administrator conducts confirmatory testing or other testing, those test 
results are used to determine compliance with emission standards.
    (c) Use of carryover test data. In lieu of testing to certify an 
engine family for a given model year, the manufacturer may submit, with 
the Administrator's approval, emission test data used to certify that 
engine family in previous years. This ``carryover'' data is only 
allowable if the submitted test data show that the test engine would 
comply with the emission standard(s) for the model year for which 
certification is being sought.
    (d) The provisions of this paragraph (d) apply only to Tier 1 
nonroad engines without exhaust aftertreatment rated at or above 37 kW.
    (1) Particulate emission measurements from Tier 1 nonroad engines 
without exhaust aftertreatment rated at or above 37 kW may be adjusted 
to a sulfur content of 0.05 weight percent.
    (2) Adjustments to the particulate measurement shall be made using 
the 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 sulfur 
content less than or equal to 0.050 weight percent, EPA shall not use 
emission data collected using test fuel with a sulfur content greater 
than 0.050 weight percent to determine compliance with the Tier 1 PM 
standards.
    (4) Where a manufacturer certifies using test fuel with a sulfur 
content greater than 0.050 weight percent, EPA shall not use emission 
data collected using test fuel with a sulfur content greater than 0.050 
weight percent to determine compliance with the Tier 1 PM standards, 
unless EPA adjusts the PM measurement using the equation specified in 
paragraph (d)(2) of this section.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57004, Oct. 23, 1998]



Sec. 89.120  Compliance with emission standards.

    (a) If all test engines representing an engine family have emissions 
less than or equal to each emission standard, that family complies with 
the emission standards.
    (b) If any test engine representing an engine family has emissions 
greater than each emission standard, that family will be deemed not in 
compliance with the emission standard(s).
    (c) For each nonroad engine family, except Tier 1 engine families 
with 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 emission 
limits, as appropriate) for nonroad compression-ignition engines apply 
to the emissions of engines for their useful life.
    (2) [Reserved]
    (3)(i) This paragraph (c)(3) describes the procedure for determining 
compliance of an engine with emission standards (or family emission 
limits, as appropriate), based on deterioration factors supplied by the 
manufacturer. The NMHC + NOX deterioration factors shall be 
established based on the sum of the pollutants, except as provided in 
paragraph (c)(3)(iv) of this section. When establishing deterioration 
factors for NMHC + NOX. a negative deterioration (emissions 
decrease from the official emissions test result) for one pollutant may 
not offset deterioration of the other pollutant.
    (ii) Separate emission deterioration factors, determined by the 
manufacturer according to the requirements of Sec. 89.118, shall be 
provided in the certification application for each engine-system 
combination. Separate deterioration factors shall be established for 
each regulated pollutant, except that a combined NMHC + NOX 
deterioration factor shall be established for compression-ignition 
nonroad engines not utilizing aftertreatment technology. For smoke 
testing, separate deterioration factors shall also 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 utilizing 
aftertreatment technology (e.g., particulate traps). For CO, NMHC + 
NOX. and particulate, the official exhaust emission results 
for each emission data engine at the selected test point shall be 
adjusted by addition of the appropriate deterioration factor. However, 
if the deterioration factor supplied by the manufacturer is less than 
zero, it shall be zero for the purposes of this paragraph (c)(3)(iii).
    (iv) Compression-ignition nonroad engines utilizing aftertreatment 
technology (e.g., particulate traps). For CO, NMHC + NOX. and 
particulate, the official exhaust emission results for each emission 
data engine at the selected test point shall be adjusted by 
multiplication by the appropriate deterioration factor. Separate NMHC 
and NOX deterioration factors shall be applied to the results 
for these pollutants prior to combining the results. If the 
deterioration factor supplied by the manufacturer is less 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''), the official exhaust emission results for each emission 
data engine at

[[Page 68]]

the selected test point shall be adjusted by the addition of the 
appropriate deterioration factor. However if the deterioration supplied 
by the manufacturer is less than zero, it shall be zero for the purposes 
of this paragraph (c)(3)(v).
    (vi) The emission values to compare with the standards (or family 
emission limits, as appropriate) shall be the adjusted emission values 
of paragraphs (c)(3)(iii) through (v) of this section, rounded to the 
same number of significant figures as contained in the applicable 
standard in accordance with ASTM E29-93a, for each emission data engine. 
This procedure has been incorporated by reference at Sec. 89.6.
    (4) Every test engine of an engine family must comply with all 
applicable standards (or family emission limits, as appropriate), as 
determined in paragraph (c)(3)(vi) of this section, before any engine in 
that family will be certified.
    (d) For engine families included in the averaging, banking, and 
trading program, the families' emission limits (FELs) are used in lieu 
of the applicable federal emission standard.
    (e) For the purposes of setting an NMHC + NOX 
certification level or FEL, one of the following options shall be used 
for the determination of NMHC for an engine family. The manufacturer 
must declare which option is used in its application for certification 
of that engine family.
    (1) The manufacturer may assume that up to two percent of the 
measured THC is methane (NMHC = 0.98 x THC).
    (2) The manufacturer may measure NMHC emissions using a method 
approved by the Administrator prior to the start of testing. This option 
allows the determination of NMHC emissions by subtracting measured 
methane emissions from measured THC emissions.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57004, Oct. 23, 1998]



Sec. 89.121  Certificate of conformity effective dates.

    The certificate of conformity is valid from the date of issuance by 
EPA until 31 December of the model year or calendar year for which it 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, request 
for certificate, information obtained from any inspection, and such 
other information as the Administrator may require, the Administrator 
determines that the application is complete and that the engine family 
meets the requirements of this part and the Clean Air Act, the 
Administrator 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 the requirements of 
this part and the Clean Air Act have not been met, the Administrator 
will deny certification. The Administrator must give a written 
explanation when certification is denied. The manufacturer may request 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 must 
notify the Administrator when changes to information required to be 
described in the application for certification are to be made to a 
product line covered by a certificate of conformity. This notification 
must include a request to amend the application or the existing 
certificate of conformity. Except as provided in paragraph (e) of this 
section, the manufacturer shall not make said changes or produce said 
engines prior to receiving approval from EPA.
    (b) A manufacturer's request to amend the application or the 
existing certificate of conformity shall include the following 
information:
    (1) A full description of the change to be made in production or of 
the engine to be added;
    (2) Engineering evaluations or data showing that engines as modified 
or added will comply with all applicable emission standards; and

[[Page 69]]

    (3) A determination whether the manufacturer's original test fleet 
selection is still appropriate, and if the original test fleet selection 
is determined not to be appropriate, proposed test fleet selection(s) 
representing the engines changed or added which would have been required 
if the engines had been included in the original application for 
certification.
    (c) The Administrator may require the manufacturer to perform tests 
on the engine representing the engine to be added or changed.
    (d) Decision by Administrator. (1) Based on the description of the 
proposed amendment and data derived from such testing as the 
Administrator may require or conduct, the Administrator will determine 
whether the proposed change or addition would still be covered by the 
certificate of conformity then in effect.
    (2) If the Administrator determines that the change or new engine(s) 
meets the requirements of this subpart and the Act, the appropriate 
certificate of conformity is amended.
    (3) If the Administrator determines that the changed or new 
engine(s) does not meet the requirements of this subpart and the Act, 
the certificate of conformity will not be amended. The Administrator 
shall provide a written explanation to the manufacturer of the decision 
not to amend the certificate. The manufacturer may request a hearing on 
a denial.
    (e) A manufacturer may make changes in or additions to production 
engines concurrently with notifying the Administrator as required by 
paragraph (a) of this section, if the manufacturer complies with the 
following requirements:
    (1) In addition to the information required in paragraph (b) of this 
section, the manufacturer must supply supporting documentation, test 
data, and engineering evaluations as appropriate to demonstrate that all 
affected engines will still meet applicable emission standards.
    (2) If, after a review, the Administrator determines additional 
testing is required, the manufacturer must provide required test data 
within 30 days or cease production of the affected engines.
    (3) If the Administrator determines that the affected engines do not 
meet applicable requirements, the Administrator will notify the 
manufacturer to cease production of the affected engines and to recall 
and correct at no expense to the owner all affected engines previously 
produced.
    (4) Election to produce engines under this paragraph will be deemed 
to be a consent to recall all engines which the Administrator determines 
do not meet applicable standards and to cause such nonconformity 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 engine must 
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 certification 
including the following:
    (i) A description of the test engine's construction, including a 
general description of the origin and buildup of the engine, steps taken 
to ensure that it is representative of production engines, description 
of components specially built for the test engine, and the origin 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) and 
reason(s) for such maintenance;
    (iv) A description of all emission tests performed (except tests 
performed by the EPA directly) including routine and standard test 
documentation, as specified in subpart E of this part, date(s) and the 
purpose of each test;
    (v) A description of all tests performed to diagnose engine or 
emission control performance, giving the date and time of each and the 
reason(s) for the test; and

[[Page 70]]

    (vi) A description of any significant event(s) affecting the engine 
during the period covered by the history of the test engine but not 
described by an entry under one of the previous paragraphs of this 
section.
    (3) Information required to be kept by the manufacturer in Sec. 
89.118(e)(3) for alternatives to service accumulation and testing for 
the determination of a deterioration factor.
    (b) Routine emission test data, such as those reporting test cell 
temperature and relative humidity at start and finish of test and raw 
emission results from each mode or test phase, must be retained for a 
period of one year after issuance of all certificates of conformity to 
which they relate. All other information specified in paragraph (a) of 
this section must be retained for a period of eight years after issuance 
of all certificates of conformity to which they relate.
    (c) Records may be kept in any format and on any media, provided 
that at the Administrator's request, organized, written records in 
English are promptly supplied by the manufacturer.
    (d) The manufacturer must supply, at the Administrator's request, 
copies of any engine maintenance instructions or explanations issued by 
the manufacturer.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57005, Oct. 23, 1998]



Sec. 89.125  Production engines, annual report.

    (a) Upon the Administrator's request, the manufacturer must supply a 
reasonable number of production engines for testing and evaluation. 
These engines must be representative of typical production and must be 
supplied for testing at such time and place and for such reasonable 
periods as the Administrator may require.
    (b) The manufacturer must annually, within 30 days after the end of 
the model year, notify the Administrator of the number of engines 
produced by engine family, by gross power, by displacement, by fuel 
system, and, for engines produced under the provision of Sec. 
89.102(g), by engine model and purchaser (or shipping destination for 
engines used by the engine manufacturer), or by other categories as the 
Administrator may require.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57005, Oct. 23, 1998]



Sec. 89.126  Denial, revocation of certificate of conformity.

    (a) If, after review of the manufacturer's application, request for 
certification, information obtained from any inspection, and any other 
information the Administrator may require, the Administrator determines 
that one or more test engines do not meet applicable standards (or 
family emission limits, as appropriate), then the Administrator will 
notify the manufacturer in writing, setting forth the basis for this 
determination.
    (b) Notwithstanding the fact that engines described in the 
application may comply with all other requirements of this subpart, the 
Administrator may deny the issuance of, suspend, or revoke a previously 
issued certificate of conformity if the Administrator finds any 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 EPA 
authorized representative the opportunity to conduct authorized 
inspections;
    (3) The manufacturer fails to supply requested information or amend 
its application to include all engines being produced;
    (4) The manufacturer renders inaccurate any test data which it 
submits or otherwise circumvents the intent of the Act or this part;
    (5) The manufacturer denies an EPA enforcement officer or EPA 
authorized representative reasonable assistance (as defined in Sec. 
89.129(e)).
    (c) If a manufacturer knowingly commits an infraction specified in 
paragraph (b)(1) or (b)(4) of this section, knowingly commits any other 
fraudulent act which results in the issuance of a certificate of 
conformity, or fails to comply with the conditions specified in Sec. 
89.203(d), Sec. 89.206(c), Sec. 89.209(c) or Sec. 89.210(g), the 
Administrator may deem such certificate void ab initio.
    (d) When the Administrator denies, suspends, revokes, or voids ab 
initio a

[[Page 71]]

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

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57005, Oct. 23, 1998]



Sec. 89.127  Request for hearing.

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

[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 Administrator 
shall designate a Presiding Officer for the hearing.
    (2) The hearing will be held as soon as practicable at a time and 
place determined by the Administrator or by the Presiding Officer.
    (3) The Administrator may, at his or her discretion, direct that all 
argument and presentation of evidence be concluded within a specified 
period established by the Administrator. Said period may be no less than 
30 days from the date that the first written offer of a hearing is made 
to the manufacturer. To expedite proceedings, the Administrator may 
direct that the decision of the Presiding Officer (who may, but need 
not, be the Administrator) shall be the final EPA decision.
    (b)(1) Upon appointment pursuant to paragraph (a) of this section, 
the Presiding Officer will establish a hearing file. The file shall 
consist of the following:
    (i) The determination issued by the Administrator under Sec. 
89.126(d);
    (ii) The request for a hearing and the supporting data submitted 
therewith;
    (iii) All documents relating to the request for certification and 
all documents submitted therewith; and
    (iv) Correspondence and other data material to the hearing.
    (2) The hearing file will be available for inspection by the 
applicant at the office of the Presiding Officer.
    (c) An applicant may appear in person or may be represented by 
counsel or by any other duly authorized representative.
    (d)(1) The Presiding Officer, upon the request of any party or at 
his or her discretion, may arrange for a prehearing conference at a time 
and place he/she specifies. Such prehearing conference will consider the 
following:
    (i) Simplification of the issues;
    (ii) Stipulations, admissions of fact, and the introduction of 
documents;
    (iii) Limitation of the number of expert witnesses;
    (iv) Possibility of agreement disposing of any or all of the issues 
in dispute; and
    (v) Such other matters as may aid in the disposition of the hearing, 
including such additional tests as may be agreed upon by the parties.
    (2) The results of the conference shall be reduced to writing by the 
Presiding Officer and made part of the record.
    (e)(1) Hearings shall be conducted by the Presiding Officer in an 
informal but orderly and expeditious manner. The parties may offer oral 
or written evidence, subject to the exclusion by the Presiding 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 that 
their statements may be subject to the provisions of 18 U.S.C. 1001 
which imposes penalties for knowingly making false statements or

[[Page 72]]

representations or using false documents in any matter within the 
jurisdiction of any department or agency of the United States.
    (3) Any witness may be examined or cross-examined by the Presiding 
Officer, the parties, or their representatives.
    (4) Hearings shall be reported verbatim. Copies of transcripts of 
proceedings may be purchased by the applicant from the reporter.
    (5) All written statements, charts, tabulations, and similar data 
offered in evidence at the hearings shall, upon a showing satisfactory 
to the Presiding Officer of their authenticity, relevancy, and 
materiality, be received in evidence and shall constitute a part of the 
record.
    (6) Oral argument may be permitted at the discretion of the 
Presiding Officer and shall be reported as part of the record unless 
otherwise ordered by the Presiding Officer.
    (f)(1) The Presiding Officer shall make an initial decision which 
shall include written findings and conclusions and the reasons or basis 
regarding all the material issues of fact, law, or discretion presented 
on the record. The findings, conclusions, and written decision shall be 
provided to the parties and made a part of the record. The initial 
decision shall become the decision of the Administrator without further 
proceedings, unless there is an appeal to the Administrator or motion 
for review by the Administrator within 20 days of the date the initial 
decision was filed. If the Administrator has determined under paragraph 
(a) of this section that the decision of the Presiding Officer is final, 
there is no right of appeal to the Administrator.
    (2) On appeal from or review of the initial decision, the 
Administrator shall have all the powers which he or she would have in 
making the initial decision, including the discretion to require or 
allow briefs, oral argument, the taking of additional evidence, or the 
remanding to the Presiding Officer for additional proceedings. The 
decision by the Administrator may adopt the original decision or shall 
include written findings and conclusions and the reasons or basis 
therefor on all the material issues of fact, law, or discretion 
presented 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 new 
engine or engine family subject to certification testing under this 
subpart shall admit or cause to be admitted to any of the following 
facilities during operating hours any EPA enforcement officer or EPA 
authorized representative on presentation of credentials.
    (1) Any facility where any such certification testing or any 
procedures or activities connected with such certification testing are 
or were performed;
    (2) Any facility where any new engine which is being, was, or is to 
be tested is present;
    (3) Any facility where any construction process or assembly process 
used in the modification or buildup of such an engine into a 
certification engine is taking place or has taken place; and
    (4) Any facility where any record or other document relating to any 
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 authorized 
representative 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 service 
accumulation, maintenance, and engine storage procedures, and to verify 
correlation or calibration of test equipment;
    (2) To inspect and make copies of any such records, designs, or 
other documents; and
    (3) To inspect and photograph any part or aspect of any such 
certification engine and any components to be used in the construction 
thereof.
    (c) To allow the Administrator to determine whether production 
engines conform in all material respects to the design specifications 
applicable to those engines, as described in the application for 
certification for which a certificate of conformity has been issued, any 
manufacturer shall admit any EPA

[[Page 73]]

enforcement officer or EPA authorized representative on presentation of 
credentials to:
    (1) Any facility where any document, design, or procedure relating 
to the translation of the design and construction of engines and 
emission-related components described in the application for 
certification or used for certification testing into production engines 
is located or carried on; and
    (2) Any facility where any engines to be introduced into commerce 
are manufactured or assembled.
    (d) On admission to any such facility referred to in paragraph (c) 
of this section, any EPA enforcement officer or EPA authorized 
representative shall be allowed:
    (1) To inspect and monitor any aspects of such manufacture or 
assembly and other procedures;
    (2) To inspect and make copies of any such records, documents or 
designs; and
    (3) To inspect and photograph any part or aspect of any such new 
engines and any component used in the assembly thereof that are 
reasonably related to the purpose of his or her entry.
    (e) Any EPA enforcement officer or EPA authorized representative 
shall be furnished by those in charge of a facility being inspected with 
such reasonable assistance as he or she may request to help the 
enforcement officer or authorized representative discharge any function 
listed in this paragraph. Each applicant for or recipient of 
certification is required to cause those in charge of a facility 
operated for its benefit to furnish such reasonable assistance without 
charge 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 making available 
on request of personnel of the facility being inspected during their 
working hours to inform the EPA enforcement officer or EPA authorized 
representative of how the facility operates and to answer the officer's 
questions; and the performance on request of emission tests on any 
engine which is being, has been, or will be used for certification 
testing. Such tests shall be nondestructive, but may require appropriate 
service accumulation.
    (2) A manufacturer may be compelled to cause any employee at a 
facility being inspected to appear before an EPA enforcement officer or 
EPA authorized representative. The request for the employee's appearance 
shall be in writing, signed by the Assistant Administrator for Air and 
Radiation, and served on the manufacturer. Any employee who has been 
instructed by the manufacturer to appear will be entitled to be 
accompanied, represented, and advised by counsel.
    (f) The duty to admit or cause to be admitted any EPA enforcement 
officer or EPA authorized representative applies whether or not the 
applicant owns or controls the facility in question and applies both to 
domestic and to foreign manufacturers and facilities. EPA will not 
attempt to make any inspections which it has been informed that local 
law forbids. However, if local law makes it impossible to do what is 
necessary to ensure the accuracy of data generated at a facility, no 
informed judgment that an engine is certifiable or is covered by a 
certificate can properly be based on those data. It is the 
responsibility of the manufacturer to locate its testing and 
manufacturing facilities in jurisdictions where this situation will not 
arise.
    (g) Any entry without 24 hours prior written or oral notification to 
the affected manufacturer shall be authorized in writing by the 
Assistant 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 engines 
subject to the requirements of this part 89, except Tier 1 engines rated 
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 of 
subpart A of this part are eligible to participate in the averaging, 
banking, and trading program described in this subpart. To the extent 
specified in 40 CFR part 60, subpart IIII, stationary engines certified 
under this part and subject to the standards of 40 CFR part 60, subpart 
IIII, may participate in the averaging, banking, and trading 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 emission credits 
among engine families within a given manufacturer's product line.
    Banking means the retention of nonroad engine emission credits by 
the manufacturer generating the emission credits for use in future model 
year averaging or trading as permitted by these regulations.
    Emission credits represent the amount of emission reduction or 
exceedance, by a nonroad engine family, below or above the emission 
standard, respectively. Emission reductions below the standard are 
considered as ``positive credits,'' while emission exceedances above the 
standard are considered as ``negative credits.'' In addition, 
``projected credits'' refer to emission credits based on the projected 
applicable production/sales volume of the engine family. ``Reserved 
credits'' are emission credits generated within a model year waiting to 
be reported to EPA at the end of the model year. ``Actual credits'' 
refer to emission credits based on actual applicable production/sales 
volume as contained in the end-of-year reports submitted to EPA. Some or 
all of these credits may be revoked if EPA review of the end-of-year 
reports or any subsequent audit action(s) uncovers problems or errors.
    Trading means the exchange of nonroad engine emission credits 
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 for NOX. 
NMHC+NOX. and PM emissions from eligible nonroad engines are 
described in this subpart. Participation in these programs is voluntary.
    (b) Requirements for Tier 1 engines rated at or above 37 kW. (1) A 
nonroad engine family is eligible to participate in the averaging, 
banking, and trading program for NOX emissions and the 
banking and trading program for PM emissions if it is subject to 
regulation under subpart B of this part with certain exceptions 
specified in paragraph (b)(2) of this section. No averaging, banking, 
and trading program is available for meeting the Tier 1 HC, CO, or smoke 
emission standards specified in subpart B of this part. No averaging 
program is available for meeting the Tier 1 PM emission standards 
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 Sky Series 
engines as described in Sec. 89.112(f). Nonroad engines certified on a 
special test procedure under Sec. 89.114(a), may not participate in the 
averaging, banking and trading programs unless the manufacturer has 
requested that the engines be included in the averaging, banking, and 
trading programs at the time the request for the special test procedure 
is made and has been granted approval by the Administrator for inclusion 
in the averaging, banking, and trading programs.
    (3) A manufacturer may certify one or more nonroad engine families 
at NOX family emission limits (FELs) above or below the Tier 
1 NOX emission standard, provided the summation of the 
manufacturer's projected balance of all NOX credit 
transactions in a given model year is greater than or equal to zero, as 
determined under Sec. 89.207(a). A manufacturer may certify one or more 
nonroad engine families at PM FELs below the Tier 2 PM emission

[[Page 75]]

standard that will be applicable to those engine families.
    (i) FELs for NOX may not exceed the Tier 1 upper limit 
specified in Sec. 89.112(d).
    (ii) An engine family certified to an FEL is subject to all 
provisions specified in this part, except that the applicable FEL 
replaces the emission standard for the family participating in the 
averaging, banking, and trading program.
    (iii) A manufacturer of an engine family with a NOX FEL 
exceeding the Tier 1 NOX emission standard must obtain 
NOX emission credits sufficient to address the associated 
credit shortfall via averaging, banking, or trading.
    (iv) An engine family with a NOX FEL below the applicable 
Tier 1 standard may generate emission credits for averaging, banking, 
trading, or a combination thereof. An engine family with a PM FEL below 
the Tier 2 standard that will be applicable to that engine family may 
generate emission credits for banking, trading, or a combination 
thereof. Emission credits may not be used to offset an engine family's 
emissions that exceed its applicable FEL. Credits may not be used to 
remedy 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 the 
family in question if the manufacturer elects to recertify to a higher 
FEL.
    (4) NOX credits generated in a given model year may be 
used to address credit shortfalls with other engines during that model 
year or in any subsequent model year except as noted under paragraph 
(b)(5)(ii) of this section. PM credits may be used to address credit 
shortfalls with Tier 2 and later engines greater than or equal to 37 kW 
and Tier 1 and later engines less than 37 kW and greater than or equal 
to 19 kW. Credits generated in one model year may not be used for prior 
model years.
    (5) The following provisions apply to the use of Tier 1 
NOX credits for showing compliance with the Tier 2 or Tier 3 
NMHC+NOX standards.
    (i) A manufacturer may use NOX credits from engines 
subject to the Tier 1 NOX standard to address 
NMHC+NOX credit shortfalls with engines in the same averaging 
set subject to Tier 1 NMHC+NOX or Tier 2 NMHC+NOX 
emission standards.
    (ii) A manufacturer may not use NOX credits from engines 
subject to the Tier 1 standards to address NMHC+NOX credit 
shortfalls with engines subject to the Tier 3 NMHC+NOX 
emission standards.
    (c) Requirements for Tier 2 and later engines rated at or above 37 
kW and Tier 1 and later engines rated under 37 kW. (1) A nonroad engine 
family is eligible to participate in the averaging, banking, and trading 
programs for NMHC+NOX emissions and PM emissions if it is 
subject to regulation under subpart B of this part with certain 
exceptions specified in paragraph (c)(2) of this section. No averaging, 
banking, and trading program is available for meeting the CO or smoke 
emission standards 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 Sky Series 
engines as described in Sec. 89.112(f). Nonroad engines certified on a 
special test procedure under Sec. 89.114(a), may not participate in the 
averaging, banking and trading programs unless the manufacturer has 
requested that the engines be included in the averaging, banking, and 
trading programs at the time the request for the special test procedure 
is made and has been granted approval by the Administrator for inclusion 
in the averaging, banking, and trading programs.
    (3)(i) A manufacturer may certify one or more nonroad engine 
families at FELs above or below the applicable NMHC+NOX 
emission standard and PM emission standard, provided the summation of 
the manufacturer's projected balance of all NMHC+NOX credit 
transactions and the summation of the manufacturer's projected balance 
of all PM credit transactions in a given model year in a given averaging 
set is greater than or equal to zero, as determined under Sec. 
89.207(b).
    (A) FELs for NMHC+NOX and FELs for PM may not exceed the 
upper limits specified in Sec. 89.112(d).

[[Page 76]]

    (B) An engine family certified to an FEL is subject to all 
provisions specified in this part, except that the applicable FEL 
replaces the emission standard for the family participating in the 
averaging, banking, and trading program.
    (C) A manufacturer of an engine family with an FEL exceeding the 
applicable emission standard must obtain emission credits sufficient to 
address the associated credit shortfall via averaging, banking, or 
trading, 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 may 
generate emission credits for averaging, banking, trading, or a 
combination thereof. Emission credits may not be used to offset an 
engine family's emissions that exceed its applicable FEL. Credits may 
not be used to remedy 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 the family in question if the manufacturer 
elects to recertify to a higher FEL.
    (ii)(A) In lieu of generating credits under paragraph (c)(3)(i) of 
this section, a manufacturer may certify one or more nonroad engine 
families rated under 37 kW at family emission limits (FELs) above or 
below the applicable NMHC+NOX emission standard and PM 
emission standard. The summation of the manufacturer's projected balance 
of all NMHC+NOX credit transactions and the summation of the 
manufacturer's projected balance of all PM credit transactions in a 
given model year, as determined under Sec. 89.207(b), are each allowed 
to be less than zero. Separate calculations shall be required for the 
following two categories of engines: engines rated under 19 kW and 
engines rated at or above 19 kW and under 37 kW.
    (B) For each calendar year a negative credit balance exists as of 
December 31, a penalty equal to ten percent of the negative credit 
balance as of December 31 of the calendar year shall be added to the 
negative credit balance. The resulting negative credit balance shall be 
carried into the next calendar year.
    (C) For engines rated under 19 kW, a manufacturer will be allowed to 
carry over a negative credit balance until December 31, 2003. For 
engines rated at or above 19 kW and under 37 kW, a manufacturer will be 
allowed to carry over a negative credit balance until December 31, 2002. 
As of these dates, the summation of the manufacturer's projected balance 
of all NMHC+NOX credit transactions and the summation of the 
manufacturer's projected balance of all PM credit transactions must each 
be greater than or equal to zero.
    (D) FELs for NMHC+NOX and FELs for PM may not exceed the 
upper limits specified in Sec. 89.112(d).
    (E) An engine family certified to an FEL is subject to all 
provisions specified in this part, except that the applicable 
NMHC+NOX FEL or PM FEL replaces the NMHC+NOX 
emission standard or PM emission standard for the family participating 
in the averaging and banking program.
    (F) A manufacturer of an engine family with an FEL exceeding the 
applicable emission standard must obtain emission credits sufficient to 
address the associated credit shortfall via averaging or banking. The 
exchange of emission credits generated under this program with other 
nonroad engine manufacturers in trading is not allowed.
    (G) An engine family with an FEL below the applicable standard may 
generate emission credits for averaging, banking, or a combination 
thereof. Emission credits may not be used to offset an engine family's 
emissions that exceed its applicable FEL. Credits may not be used to 
remedy 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 the 
family in question if the manufacturer elects to recertify to a higher 
FEL.
    (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 year may 
be used during that model year or used in any subsequent model year. 
Except as allowed under paragraph (c)(3)(ii) of this section,

[[Page 77]]

credits generated in one model year may not be used for prior model 
years.
    (ii) Credits generated from engines rated under 19 kW prior to the 
implementation date of the applicable Tier 2 standards, shall expire on 
December 31, 2007.
    (iii) Credits generated from engines rated under 19 kW under the 
provisions of paragraph (c)(3)(ii) shall expire on December 31, 2003.
    (iv) Credits generated from engines rated at or above 19 kW and 
under 37 kW under the provisions of paragraph (c)(3)(ii) of this section 
shall expire on December 31, 2002.
    (5) Except as provided in paragraph (b)(3) of this section, engine 
families may not generate credits for one pollutant while also using 
credits for another pollutant in the same model year.
    (6) Model year 2008 and 2009 engines rated under 8 kW that are 
allowed to certify under this part because they meet the criteria in 40 
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 270 
days of the end of the model year. Except as allowed under paragraph 
(c)(3)(ii) of this section, manufacturers that have certified engine 
families to FELs above the applicable emission standards and do not have 
sufficient emission credits to offset the difference between the 
emission standards and the FEL for such engine families will be in 
violation of the conditions of the certificate of conformity for such 
engine families. The certificates of conformity may be voided ab initio 
under Sec. 89.126(c) for those engine families.

[63 FR 57006, Oct. 23, 1998, as amended at 69 FR 39213, June 29, 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 a 
nonroad engine family caused by a NOX FEL above the 
applicable emission standard. NOX credits used in averaging 
may be obtained from credits generated by another engine family in the 
same model year, credits banked in a previous model year, or credits 
obtained through trading.
    (b) Requirements for Tier 2 and later engines rated at or above 37 
kW and Tier 1 and later engines rated under 37 kW. A manufacturer may 
use averaging to offset an emission exceedance of a nonroad engine 
family caused by an NMHC+;NOX FEL or a PM FEL above the 
applicable emission standard. Credits used in averaging may be obtained 
from credits generated by another engine family in the same model year, 
credits banked in previous model years that have not expired, or credits 
obtained through trading. The use of credits shall be 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 and trading 
of NOX emission credits, NMHC + NOX emission 
credits, and PM emissions credits will only be allowed between engine 
families in the same averaging set. The averaging sets for the averaging 
and trading of NOX emission credits, NMHC + NOX 
emission credits, and PM emission credits for nonroad engines are 
defined as follows:
    (1) Eligible engines rated at or above 19 kW, other than marine 
diesel engines, constitute an averaging set.
    (2) Eligible engines rated under 19 kW, other than marine diesel 
engines, constitute an averaging set.
    (3) Marine diesel engines rated at or above 19 kW constitute an 
averaging set. Emission credits generated from marine diesel engines 
rated at or above 19 kW may be used to address credit shortfalls for 
eligible engines rated at or above 19 kW other than marine diesel 
engines.
    (4) Marine diesel engines rated under 19 kW constitute an averaging 
set. Emission credits generated from marine diesel engines rated under 
19 kW may be used to address credit shortfalls for eligible 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 NOX FEL below 
the applicable standard

[[Page 78]]

for a given model year may bank credits in that model year for use in 
averaging and trading in any subsequent model year.
    (2) A manufacturer of a nonroad engine family may bank 
NOX credits up to one calendar year prior to the effective 
date of mandatory certification. Such engines must meet the requirements 
of subparts A, B, D, E, F, G, H, I, J, and K of this part.
    (3)(i) A manufacturer of a nonroad engine family may bank PM credits 
from Tier 1 engines under the provisions specified in Sec. 89.207(b) 
for use in averaging and trading in the Tier 2 or later timeframe. These 
credits are considered to be Tier 2 credits.
    (ii) Such engine families are subject to all provisions specified in 
subparts A, B, D, E, F, G, H, I, J, and K of this part, except that the 
applicable PM FEL replaces the PM emission standard for the family 
participating in the banking and trading program.
    (b) Requirements for Tier 2 and later engines rated at or above 37 
kW and Tier 1 and later engines rated under 37 kW. (1) A manufacturer of 
a nonroad engine family with an NMHC + NOX FEL or a PM FEL 
below the applicable standard for a given model year may bank credits in 
that model year for use in averaging and trading in any following model 
year.
    (2) For engine rated under 37 kW, a manufacturer of a nonroad engine 
family may bank credits prior to the effective date of mandatory 
certification. Such engines must meet the requirements of subparts 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 of the 
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 certification process for 
banking will be considered reserved and may be redesignated for trading 
or averaging in the end-of-year report and final report.
    (d) Credits declared for banking from the previous model year that 
have not been reviewed by EPA may be used in averaging or trading 
transactions. However, such credits may be revoked at a later time 
following EPA review of the end-of-year report or any subsequent audit 
actions.

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

[63 FR 57008, Oct. 23, 1998]



Sec. 89.207  Credit calculation.

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

[[Page 79]]

according to one of the following equations and rounded, in accordance 
with ASTM E29-93a, to the nearest one-hundredth of a megagram (Mg). This 
ASTM procedure has been incorporated by reference (see Sec. 89.6). 
Consistent units are to be used throughout the equation.
    (i) For determining credit availability from all engine families 
generating credits: Emission credits = (Std-FEL) x (Volume) x (AvgPR) x 
(UL) x (Adjustment) x (10-6)
    (ii) For determining credit usage for all engine families requiring 
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 engine emission 
standard, in grams per kilowatt-hour.
FEL = the NOX family emission limit for the engine family in 
grams per kilowatt-hour.
Volume = the number of nonroad engines eligible to participate in the 
averaging, banking, and trading program within the given engine family 
during the model year. Engines sold to equipment or vehicle 
manufacturers under the provisions of Sec. 89.102(g) shall not be 
included in this number. Quarterly production projections are used for 
initial certification. Actual applicable production/sales volume is used 
for end-of-year compliance determination.
AvgPR = the average power rating of all of the configurations within an 
engine family, calculated on a sales-weighted basis, in kilowatts.
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 credits to be 
banked or traded for determining compliance with the Tier 1 
NOX standards or Tier 2 NOX+NMHC standards 
specified in subpart B of this part. Banked credits traded in a 
subsequent model year will not be subject to an additional adjustment. 
Banked credits used in a subsequent model year's averaging program will 
not have the adjustment restored.

    (2) If an engine family is certified to a NOX FEL of 8.0 
g/kW-hr or less, an Adjustment value of 1.0 shall be used in the credit 
generation calculation described in paragraph (a)(1)(i) of this section. 
If an engine family is certified to a NOX FEL above 8.0 g/kW-
hr, an Adjustment value of 0.65 shall be used in the credit generation 
calculation described in paragraph (a)(1)(i) of this section. If the 
credits are to be used by the credit-generating manufacturer for 
averaging purposes in the same model year in which they are generated, 
an Adjustment value of 1.0 shall be used for all engines regardless of 
the level of the NOX FEL. If the credits are to be banked by 
the credit-generating manufacturer and used in a subsequent model year 
for another Tier 1 engine family, an Adjustment value of 1.0 shall be 
used for all engines regardless of the level of the NOX FEL.
    (b) Requirements for calculating NMHC + NOX Credits from 
Tier 2 and later engines rated at or above 37 kW and Tier 1 and later 
engines rated under 37 kW and PM credits from all engines. (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 and rounded, in accordance 
with ASTM E29-93a, to the nearest one-hundredth of a megagram (Mg). This 
procedure has been incorporated by reference (see Sec. 89.6). 
Consistent units are to be used throughout the equation.
    (i) For determining credit availability from all engine families 
generating credits:

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

    (ii) For determining credit usage for all engine families requiring 
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 the 
applicable nonroad engine Tier 2 PM emission standard, and except for 
engines rated under 19 kW where it is the applicable nonroad engine Tier 
2 emission standard, in grams per kilowatt-hour. (Engines rated under 19 
kW participating in the averaging and banking program provisions of 
Sec. 89.203(c)(3)(ii) shall use the Tier 1 standard for credit 
calculations.)
FEL = the family emission limit for the engine family in grams per 
kilowatt-hour.

[[Page 80]]

Volume = the number of nonroad engines eligible to participate in the 
averaging, banking, and trading program within the given engine family 
during the model year. Engines sold to equipment or vehicle 
manufacturers under the provisions of Sec. 89.102(g) shall not be 
included in this number. Quarterly production projections are used for 
initial certification. Actual applicable production/sales volume is used 
for end-of-year compliance determination.
AvgPR = the average power rating of all of the configurations within an 
engine family, calculated on a sales-weighted basis, in kilowatts.
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, and 
trading programs, the family emission limits to which the engine is 
certified must be included on the label required in Sec. 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 the 
averaging, banking, and trading programs.
    (2) Submit a statement that the engines for which certification is 
requested will not, to the best of the manufacturer's belief, cause the 
manufacturer to have a negative credit balance when all credits are 
calculated for all the manufacturer's engine families participating in 
the averaging, banking, and trading programs, except as allowed under 
Sec. 89.203(c)(3)(ii).
    (3) Declare the applicable FELs for each engine family participating 
in averaging, banking, and trading.
    (i) The FELs must be to the same number of significant digits as the 
emission standard for the applicable pollutant.
    (ii) In no case may the FEL exceed the upper limits prescribed in 
Sec. 89.112(d).
    (4) Indicate the projected number of credits generated/needed for 
this family; the projected applicable production/sales volume, by 
quarter; and the values required to calculate credits as given in Sec. 
89.207.
    (5) Submit calculations in accordance with Sec. 89.207 of projected 
emission credits (positive or negative) based on quarterly production 
projections for each participating family.
    (6)(i) If the engine family is projected to have negative emission 
credits, state specifically the source (manufacturer/engine family or 
reserved) of the credits necessary to offset the credit deficit 
according to quarterly projected production, or, if the engine family is 
to be included in the provisions of Sec. 89.203(c)(3)(ii), state that 
the engine family will be subject to those provisions.
    (ii) If the engine family is projected to generate credits, state 
specifically (manufacturer/engine family or reserved) where the 
quarterly projected credits will be applied.
    (b) All certificates issued are conditional upon manufacturer 
compliance with the provisions of this subpart both during and after the 
model year of production.
    (c) Failure to comply with all provisions of this subpart will be 
considered to be a failure to satisfy the conditions upon which the 
certificate was issued, and the certificate may be deemed void ab 
initio.
    (d) The manufacturer bears the burden of establishing to the 
satisfaction of the Administrator that the conditions upon which the 
certificate was issued were satisfied or waived.
    (e) Projected credits based on information supplied in the 
certification application may be used to obtain a certificate of 
conformity. However, any such credits may be revoked based on review of 
end-of-year reports, follow-up audits, and any other verification steps 
deemed appropriate by the Administrator.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57009, Oct. 23, 1998]



Sec. 89.210  Maintenance of records.

    (a) The manufacturer of any nonroad engine that is certified under 
the averaging, banking, and trading program must establish, maintain, 
and retain the following adequately organized and indexed records for 
each 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 is certified 
under the averaging, banking, and trading programs must establish, 
maintain, and retain the following adequately organized and indexed 
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 model year; 
and
    (5) Actual applicable production/sales volume for the model year.
    (c) Any manufacturer producing an engine family participating in 
trading reserved credits must maintain the following records on a 
quarterly basis for each engine family in the trading program:
    (1) The engine family;
    (2) The actual quarterly and cumulative applicable production/sales 
volume;
    (3) The values required to calculate credits as given in Sec. 
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 be 
maintained under this section for a period of eight years from the due 
date for the end-of-model-year report. Records may be retained as hard 
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 is retained.
    (e) Nothing in this section limits the Administrator's discretion in 
requiring the manufacturer to retain additional records or submit 
information not specifically required by this section.
    (f) Pursuant to a request made by the Administrator, the 
manufacturer must submit to the Administrator the information that the 
manufacturer is required to retain.
    (g) EPA may void ab initio under Sec. 89.126(c) a certificate of 
conformity for an engine family for which the manufacturer fails to 
retain the records required in this section or to provide such 
information to the Administrator upon request.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
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 to 
calculate credits as given in Sec. 89.207, and the number of credits 
generated/required. Manufacturers must also submit how and where credit 
surpluses were dispersed (or are to be banked) and/or how and through 
what means credit deficits were met. Copies of contracts related to 
credit trading must be included or supplied by the broker, if 
applicable. The report shall include a calculation of credit balances to 
show that the summation of the manufacturer's use of credits results in 
a credit balance equal to or greater than zero, except as allowed under 
Sec. 89.203(c)(3)(ii). Manufacturers participating under the program 
described in Sec. 89.203(c)(3)(ii) shall include the NMHC + 
NOX credit balance and the PM credit balance as of December 
31 of that calendar year.
    (b) The applicable production/sales volume for end-of-year and final 
reports must be based on the location of the point of first retail sale 
(for example, retail customer, dealer, secondary manufacturer) also 
called the final product purchase location.
    (c)(1) End-of-year reports must be submitted within 90 days of the 
end of the model year to: Director, Engine Programs and Compliance 
Division (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 of 
the 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 reports 
in the specified

[[Page 82]]

time for all engines is a violation of sections 203(a)(1) and 213 of the 
Clean Air Act for each engine.
    (e) A manufacturer generating credits for deposit only who fails to 
submit end-of-year reports in the applicable specified time period (90 
days after the end of the model year) may not use the credits until such 
reports are received and reviewed by EPA. Use of projected credits 
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 corrected in the 
final report up to 270 days from the end of the model year.
    (g) If EPA or the manufacturer determines that a reporting error 
occurred on an end-of-year or final report previously submitted to EPA 
under this section, the manufacturer's credits and credit calculations 
will be recalculated. Erroneous positive credits will be void except as 
provided in paragraph (h) of this section. Erroneous negative credit 
balances may be adjusted by EPA.
    (h) If within 270 days of the end of the model year, EPA review 
determines a reporting error in the manufacturer's favor (that is, 
resulting in an increased credit balance) or if the manufacturer 
discovers 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 FR 56995, 
57009, Oct. 23, 1998]



Sec. 89.212  Notice of opportunity for hearing.

    Any voiding of the certificate under Sec. 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 an opportunity for a hearing 
conducted in accordance with Sec. Sec. 89.512 and 89.513 and, if a 
manufacturer requests such a hearing, will be made only after an initial 
decision by 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 to 
perform exhaust emission tests on new nonroad compression-ignition 
engines subject to the provisions of subpart B of part 89.
    (b) Exhaust gases, either raw or dilute, are sampled while the test 
engine is operated using an 8-mode test cycle on an engine dynamometer. 
The exhaust gases receive specific component analysis determining 
concentration of pollutant, exhaust volume, the fuel flow, and the power 
output during each mode. Emission is reported as grams per kilowatt hour 
(g/kw-hr). See subpart E of this part for a complete description of the 
test procedure.
    (c) General equipment and calibration requirements are given in 
Sec. 89.304 through 89.324. Sections 89.325 through 89.331 set forth 
general test specifications.
    (d) Additional information about system design, calibration 
methodologies, and so forth, for raw gas sampling can be found in 40 CFR 
part 1065. Examples for system design, calibration methodologies, and so 
forth, for dilute exhaust gas sampling can be found in 40 CFR part 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 part 89.3 of this chapter 
apply to this subpart.
    (b) The abbreviations in table 1 in appendix A of this subpart apply 
to this subpart. Some abbreviations from Sec. 89.3 have been included 
for the convenience of the reader.

[[Page 83]]

    (c) The symbols in table 2 in appendix A of this subpart apply to 
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 exhaust 
emissions. Engines are operated on dynamometers meeting the 
specification given in Sec. 89.306.
    (b) The exhaust is tested for gaseous emissions using a raw gas 
sampling system as described in Sec. 89.412 or a constant volume 
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) absorption 
type for carbon monoxide and carbon dioxide analysis; a heated flame 
ionization (HFID) type for hydrocarbon analysis; and a chemiluminescent 
detector (CLD) or heated chemiluminescent detector (HCLD) for oxides of 
nitrogen analysis. Sections 89.309 through 89.324 set forth a full 
description of analyzer requirements and specifications.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57010, Oct. 23, 1998]



Sec. 89.305  Equipment measurement accuracy/calibration frequency.

    The accuracy of measurements must be such that the maximum 
tolerances shown in Table 3 in appendix A of this subpart are not 
exceeded. Calibrate all equipment and analyzers according to the 
frequencies 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 stand and other 
instruments for measurement of power output must meet the accuracy and 
calibration frequency requirements shown in table 3 in appendix A of 
this subpart. The dynamometer must be capable of performing the test 
cycle described in Sec. 89.410.
    (b) Dynamometer calibration weights. A minimum of six calibration 
weights for each range used are required. The weights must be spaced to 
reflect good engineering judgement such that they cover the range of 
weights required and must be traceable to within 0.5 percent of NIST 
weights. Laboratories located in foreign countries may certify 
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's instructions 
for initial start-up and basic operating adjustments.
    (b) Check the dynamometer torque measurement for each range used by 
the following method:
    (1) Warm up the dynamometer following the dynamometer manufacturer's 
specifications.
    (2) Determine the dynamometer calibration moment arm (a distance/
weight measurement). Dynamometer manufacturer's data, actual 
measurement, or the value recorded from the previous calibration used 
for this subpart may be used.
    (3) When calibrating the engine flywheel torque transducer, any 
lever arm used to convert a weight or a force through a distance into a 
torque must be in a horizontal position (5 
degrees).
    (4) Calculate the indicated torque (IT) for each calibration weight 
to be used by:

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

    (5) Attach each calibration weight specified in Sec. 89.306 to the 
moment arm at the calibration distance determined in paragraph (b)(2) of 
this section. Record the power measurement equipment response (N-m) to 
each weight.
    (6) For each calibration weight, compare the torque value measured 
in paragraph (b)(5) of this section to the calculated torque determined 
in paragraph (b)(4) of this section.
    (7) The measured torque must be within either 2 percent of point or 
1 percent of the engine maximum torque of the calculated torque.

[[Page 84]]

    (8) If the measured torque is not within the above requirements, 
adjust or repair the system. Repeat steps in paragraphs (b)(1) through 
(b)(6) of this section with the adjusted or repaired system.
    (c) Optional. A master load-cell or transfer standard may be used to 
verify the torque measurement system.
    (1) The master load-cell and read out system must be calibrated with 
weights at each test weight specified in Sec. 89.306. The calibration 
weights must be traceable to within 0.1 percent of applicable national 
standards.
    (2) Warm up the dynamometer following the equipment manufacturer's 
specifications.
    (3) Attach the master load-cell and loading system.
    (4) Load the dynamometer to a minimum of 6 equally spaced torque 
values as indicated by the master load-cell for each in-use range used.
    (5) The in-use torque measurement must be within 2 percent of the 
torque measured by the master system for each load used.
    (6) If the in-use torque is not within 2 percent of the master 
torque, 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 flywheel torque 
transducer calibration, but may be used to span the transducer prior to 
engine testing.
    (e) Perform other engine dynamometer system calibrations as dictated 
by good engineering practice.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57010, Oct. 23, 1998]



Sec. 89.308  Sampling system requirements for gaseous emissions.

    (a) For each component (pump, sample line section, filters, and so 
forth) in the heated portion of the sampling system that has a separate 
source of power or heating element, use engineering judgment to locate 
the coolest portion of that component and monitor the temperature at 
that location. If several components are within an oven, then only the 
surface temperature of the component with the largest thermal mass and 
the oven temperature need be measured.
    (b) If water is removed by condensation, the sample gas temperature 
shall be monitored within the water trap or the sample dewpoint shall be 
monitored downstream. In either case, the indicated temperature shall 
not exceed 7 [deg]C.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57010, Oct. 23, 1998]



Sec. 89.309  Analyzers required for gaseous emissions.

    (a) Analyzers. The following instruments are required for analyzing 
the measured gases:
    (1) Carbon Monoxide (CO) analysis. (i) The carbon 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) [Reserved]
    (4) Hydrocarbon (HC) analysis. (i) The hydrocarbon analyzer must be 
of the heated flame ionization (HFID) type.
    (ii) If the temperature of the exhaust gas at the sample probe is 
below 190 [deg]C, the temperature of the valves, pipework, and so forth, 
must be controlled so as to maintain a wall temperature of 190 [deg]C 
11 [deg]C. If the temperature of the exhaust gas 
at the sample probe is above 190 [deg]C, the temperature of the valves, 
pipework, and so forth, must be controlled so as to maintain a wall 
temperature greater than 180 [deg]C.
    (iii) The FID oven must be capable of maintaining temperature within 
5.5 [deg]C of the set point.
    (iv) Fuel and burner air must conform to the specifications in Sec. 
89.312.
    (v) The percent of oxygen interference must be less than 3 percent, 
as specified in Sec. 89.319(d).
    (5) Oxides of nitrogen (NOX) analysis. (i) This analysis 
device must consist of the subsequent items, following the sample probe, 
in the given order:
    (A) Pipework, valves, and so forth, controlled so as to maintain a 
wall temperature above 60 [deg]C.

[[Page 85]]

    (B) A NO2 to NO converter. The NO2 to NO 
converter efficiency must be at least 90 percent.
    (C) For raw analysis, an ice bath or other cooling device located 
after 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 as 
measured in Sec. 89.318.
    (b) Other gas analyzers yielding equivalent results may be used with 
advance approval of the Administrator.
    (c) The following requirements must be incorporated in each system 
used for testing under this subpart.
    (1) Carbon monoxide and carbon dioxide measurements must be made on 
a dry basis (for raw exhaust measurement only). Specific requirements 
for the means of drying the sample can be found in Sec. 89.309(e).
    (2) Calibration or span gases for the NOX measurement 
system must pass through the NO2 to NO converter.
    (d) The electromagnetic compatibility (EMC) of the equipment must be 
on a level as to minimize additional errors.
    (e) Gas drying. Chemical dryers are not an acceptable method of 
removing water from the sample. Water removal by condensation is 
acceptable. A water trap performing this function and meeting the 
specifications in Sec. 89.308(b) is an acceptable method. Means other 
than condensation may be used only with prior approval from the 
Administrator.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57010, Oct. 23, 1998]



Sec. 89.310  Analyzer accuracy and specifications.

    (a) Measurement accuracy--general. The analyzers must have a 
measuring range which allows them to measure the concentrations of the 
exhaust gas sample pollutants with the accuracies shown in Table 3 in 
Appendix A of this subpart.
    (1) Response time. As necessary, measure and account for the 
response time of the analyzer.
    (2) Precision. The precision of the analyzer must be, at worst, 
1 percent of full-scale concentration for each 
range used at or above 100 ppm (or ppmC) or 2 
percent for each range used below 100 ppm (or ppmC). The precision is 
defined as 2.5 times the standard deviation(s) of 10 repetitive 
responses to a given calibration or span gas.
    (3) Noise. The analyzer peak-to-peak response to zero and 
calibration or span gases over any 10-second period must not exceed 2 
percent 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 deflection on the 
lowest range used. The zero-response is defined as the mean response 
including noise to a zero-gas during a 30-second time interval.
    (5) Span drift. The analyzer span drift during a 1-hour period must 
be less than 2 percent of full-scale chart deflection on the lowest 
range used. The analyzer span is defined as the difference between the 
span-response and the zero-response. The span-response is defined as the 
mean response including noise to a span gas during a 30-second time 
interval.
    (b) Operating procedure for analyzers and sampling system. Follow 
the start-up and operating instructions of the instrument manufacturer. 
Adhere to the minimum requirements given in Sec. 89.314 to Sec. 
89.323.
    (c) Emission measurement accuracy--Bag sampling. (1) Good 
engineering practice dictates that exhaust emission sample analyzer 
readings below 15 percent of full-scale chart deflection should 
generally not be used.
    (2) Some high resolution read-out systems, such as computers, data 
loggers, and so forth, can provide sufficient accuracy and resolution 
below 15 percent of full scale. Such systems may be used provided that 
additional calibrations of at least 4 non-zero nominally equally spaced 
points, using good engineering judgement, below 15 percent of full scale 
are made to ensure the accuracy of the calibration curves. If a gas 
divider is used, the gas divider must conform to the accuracy 
requirements specified in Sec. 89.312(c). The procedure in paragraph 
(c)(3) of this section may be used for calibration below 15 percent of 
full scale.

[[Page 86]]

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

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57010, Oct. 23, 1998]



Sec. 89.311  Analyzer calibration frequency.

    (a) Prior to initial use and after major repairs, bench check each 
analyzer (see Sec. 89.315).
    (b) Calibrations are performed as specified in Sec. Sec. 89.319 
through 89.324.
    (c) At least monthly, or after any maintenance which could alter 
calibration, the following calibrations and checks are performed.
    (1) Leak check the vacuum side of the system (see Sec. 89.316).
    (2) Check that the analysis system response time has been measured 
and 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 the 
specifications in Table 3 in appendix A of this subpart are met.
    (d) Verify that all NDIR analyzers meet the water rejection ratio 
and the CO2 rejection ratio as specified in Sec. 89.318.
    (e) Verify that the dynamometer test stand and power output 
instrumentation meet the specifications in Table 3 in appendix A of this 
subpart.

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



Sec. 89.312  Analytical gases.

    (a) The shelf life of all calibration gases must not be exceeded. 
The expiration date of the calibration gases stated by the gas 
manufacturer shall be recorded.
    (b) Pure gases. The required purity of the gases is defined by the 
contamination limits given below. The following gases must be available 
for operation:
    (1) Purified nitrogen (Contamination <= 1 ppm C, <= 1 ppm CO, <= 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) (Oxygen content between 18-21 
percent vol.)
    (c) Calibration and span gases. (1) Calibration gas values are to be 
derived from NIST Standard Reference Materials (SRM's) or other 
standardized gas samples and are to be single blends as listed in the 
following paragraph.
    (2) Mixtures of gases having the following chemical compositions 
shall be available:
    (i) C3H8 and purified synthetic air ;
    (ii) C3H8 and purified nitrogen (optional for 
raw measurements);
    (iii) CO and purified nitrogen;
    (iv) NOX and purified nitrogen (the amount of 
NO2 contained in this calibration gas must not exceed 5 
percent of the NO content);
    (v) CO2 and purified nitrogen.
    (3) The true concentration of a span gas must be within 2 percent of the NIST gas standard. The true 
concentration of a calibration gas must be within 1 percent of the NIST gas standard. The use of precision 
blending devices (gas dividers) to obtain the required calibration gas 
concentrations is acceptable, provided that the blended gases are 
accurate to within 1.5 percent of NIST gas 
standards, or other gas standards which have been approved by the 
Administrator. This accuracy implies that primary gases used (or 
blending) must be ``named'' to an accuracy of at least 1 percent, traceable to NIST or other approved gas 
standards. All concentrations of calibration gas shall be given on a 
volume basis (volume percent or volume ppm).
    (4) The gas concentrations used for calibration and span may also be 
obtained by means of a gas divider, either diluting with purified 
N2 or diluting with purified synthetic air. The accuracy of 
the mixing device must be such that the concentration of the diluted 
gases may be determined to within 2 percent.
    (d) Oxygen interference check gases shall contain propane with 350 
ppmC 75 ppmC hydrocarbon. The three oxygen 
interference gases shall contain 21%  1% 
O2, 10%  1% O2, and 5% 
 1% O2. The concentration value shall 
be determined to calibration gas tolerances by chromatographic analysis 
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 2 percent hydrogen with the balance being helium. The 
mixture shall contain less than 1 ppm equivalent carbon response; 98 to 
100 percent hydrogen fuel may be used with advance approval of the 
Administrator.
    (f) Hydrocarbon analyzer burner air. The concentration of oxygen for 
raw sampling must be within 1 mole percent of the oxygen concentration 
of the burner air used in the latest oxygen interference check 
(%O2I). If the difference in oxygen concentration is greater 
than 1 mole percent, then the oxygen interference must be checked and, 
if necessary, the analyzer adjusted to meet the %O2I 
requirements. The burner air must contain less than 2 ppmC hydrocarbon.
    (g) Gases for the methane analyzer shall be single blends of methane 
using air as the diluent.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57010, Oct. 23, 1998]



Sec. 89.313  Initial calibration of analyzers.

    (a) Warming-up time. The warming-up time should be according to the 
recommendations of the manufacturer. If not specified, a minimum of two 
hours shall be allowed for warming up the analyzers.
    (b) NDIR and HFID analyzer. The NDIR analyzer shall be tuned and 
maintained according to the instrument manufacturer's instructions. The 
combustion flame of the HFID analyzer shall be optimized in order to 
meet the specifications in Sec. 89.319(b)(2).
    (c) Zero setting and calibration. (1) Using purified synthetic air 
(or nitrogen), the CO, CO2, NOX. and HC analyzers 
shall be set at zero.
    (2) Introduce the appropriate calibration gases to the analyzers and 
the values recorded. The same gas flow rates shall be used as when 
sampling exhaust.

[[Page 88]]

    (d) Rechecking of zero setting. The zero setting shall be rechecked 
and the procedure described in paragraph (c) of this section 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 prior to 
and after each test in accordance with the following procedure. (A 
chronic need for parameter adjustment can indicate a need for instrument 
maintenance.):
    (a) The calibration is checked by using a zero gas and a span gas 
whose 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 span 
gas will be used for rechecking. As an option, the zero and span may be 
rechecked at the end of each mode or each test segment. The analysis 
will be considered acceptable if the difference between the two 
measuring results is less than 2 percent of full scale.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57011, Oct. 23, 1998]



Sec. 89.315  Analyzer bench checks.

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

[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 the analysis 
system where a vacuum leak could affect the test results must be 
checked.
    (2) The maximum allowable leakage rate on the vacuum side is 0.5 
percent of the in-use flow rate for the portion of the system being 
checked. The analyzer flows and bypass flows may be used to estimate the 
in-use flow rates.
    (3) The sample probe and the connection between the sample probe and 
valve V2 (see Figure 1 in appendix B of this subpart) may be excluded 
from the leak check.
    (b) [Reserved]
    (c) The response time shall be accounted for in all emission 
measurement and calculations.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57011, Oct. 23, 1998]



Sec. 89.317  NOX converter check.

    (a) Prior to its introduction into service, and monthly thereafter, 
the chemiluminescent oxides of nitrogen analyzer shall be checked for 
NO2 to NO converter efficiency. Figure 2 in appendix B of 
this subpart is a reference for the following paragraphs.
    (b) Follow good engineering practices for instrument start-up and 
operation. Adjust the analyzer to optimize performance.
    (c) Zero the oxides of nitrogen analyzer with zero-grade air or 
zero-grade nitrogen.
    (d) Connect the outlet of the NOX generator to the sample 
inlet of the oxides of nitrogen analyzer which has been set to the most 
common operating range.
    (e) Introduce into the NOX generator analyzer-system an 
NO-in-nitrogen (N2) mixture with an NO concentration equal to 
approximately 80 percent of the most common operating range. The 
NO2 content of the gas mixture shall be less than 5 percent 
of the NO concentration.
    (f) With the oxides of nitrogen analyzer in the NO mode, record the 
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 NO 
indicated by the analyzer is about 10 percent less than indicated in 
paragraph (f) of this section. Record the concentration of NO in this 
NO+O2 mixture.

[[Page 89]]

    (h) Switch the NOX generator to the generation mode and 
adjust the generation rate so that the NO measured on the analyzer is 20 
percent of that measured in paragraph (f) of this section. 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 NOX 
mode and measure total NOX. Record this value.
    (j) Switch off the NOX generator but maintain gas flow 
through the system. The oxides of nitrogen analyzer will indicate the 
NOX 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 the 
original NO-in-N2 mixture. This value should be no more than 
5 percent above the value indicated in paragraph (f) of this section.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57011, Oct. 23, 1998]



Sec. 89.318  Analyzer interference checks.

    (a) Gases present in the exhaust other than the one being analyzed 
can interfere with the reading in several ways. Positive interference 
occurs in NDIR and PMD instruments when the interfering gas gives the 
same effect as the gas being measured, but to a lesser degree. Negative 
interference occurs in NDIR instruments by the interfering gas 
broadening the absorption band of the measured gas and in CLD 
instruments by the interfering gas quenching the radiation. The 
interference checks described in this section are to be made initially 
and after any major repairs that could affect analyzer performance.
    (b) CO analyzer water and CO2 interference checks. Prior 
to its introduction into service and annually thereafter, the NDIR 
carbon monoxide analyzer shall be checked for response to water vapor 
and CO2.
    (1) Follow good engineering practices for instrument start-up and 
operation. Adjust the analyzer to optimize performance on the most 
sensitive range to be used.
    (2) Zero the carbon monoxide analyzer with either zero-grade air or 
zero-grade nitrogen.
    (3) Bubble a mixture of 3 percent CO2 in N2 
through water at room temperature and record analyzer response.
    (4) An analyzer response of more than 1 percent of full scale for 
ranges above 300 ppm full scale or more than 3 ppm on ranges below 300 
ppm full scale requires corrective action. (Use of conditioning columns 
is one form of corrective action which may be taken.)
    (c) NOX analyzer quench check. The two gases of concern 
for CLD (and HCLD) analyzers are CO2 and water vapor. Quench 
responses to these two gases are proportional to their concentrations 
and, therefore, require test techniques to determine quench at the 
highest expected concentrations experienced during testing.
    (1) NOX analyzer CO2 quench check. A CO2 span 
gas having a concentration of 80 percent to 100 percent of full scale of 
the maximum operating range used during testing shall be passed through 
the CO2 NDIR analyzer and the value recorded as a. It is 
diluted approximately 50 percent with NO span gas and then passed 
through the CO2 NDIR and CLD (or HCLD), with the 
CO2 and NO values recorded as b and c respectively. The 
CO2 shall then be shut off and only the NO span gas passed 
through the CLD (or HCLD) and the NO value recorded as d. Percent 
CO2 quench shall be calculated as follows and shall 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 normal operating 
range shall be passed through the CLD (or HCLD) and the response 
recorded as D. The NO span gas shall then be bubbled through water at 
room temperature and passed through the CLD (or HCLD) and the analyzer 
response recorded as AR. Determine and record the bubbler absolute 
operating pressure and the bubbler water temperature. (It is important 
that the NO span gas contains minimal NO2 concentration for 
this check. No allowance for absorption of NO2 in water has 
been made in the following quench calculations. This test may be 
optionally run in the NO mode to minimize the effect of any 
NO2 in the NO span gas.)
    (ii) Calculations for water quench must consider dilution of the NO 
span gas with water vapor and scaling of the water vapor concentration 
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 water concentration (Z1, 
percent) in the mixture by the following equation:
[GRAPHIC] [TIFF OMITTED] TR17JN94.002

where

GP = analyzer operating pressure (Pa)

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

    (iv)(A) The maximum raw or dilute exhaust water vapor concentration 
expected during testing (designated as Wm) can be estimated from the 
CO2 span gas (or as defined in the equation 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 of 1.8:1 as:

Wm(%)=0.9xA(%)

Where:

A = maximum CO2 concentration expected in the sample system during 
testing.

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


[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
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 and 
periodic calibration as described in this section. The HFID used with 
petroleum-fueled diesel (compression-ignition) engines shall be operated 
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 response as specified 
in this paragraph. Alternate methods yielding equivalent results may be 
used, if approved in advance by the Administrator.
    (1) Follow good engineering practices for initial instrument start-
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 operating range. 
The response is to be optimized with respect to fuel pressure or flow. 
Efforts shall be made to minimize response variations to different 
hydrocarbon species that are expected to be in the exhaust. Good 
engineering judgment is

[[Page 91]]

to be used to trade off optimal FID response to propane-in-air against 
reductions in relative responses to other hydrocarbons. A good example 
of trading off response on propane for relative responses to other 
hydrocarbon species is given in Society of Automotive Engineers (SAE) 
Paper No. 770141, ``Optimization of Flame Ionization Detector for 
Determination of Hydrocarbon in Diluted Automotive Exhausts''; author 
Glenn D. Reschke. It is also required that the response be set to 
optimum condition with respect to air flow and sample flow. Heated Flame 
Ionization Detectors (HFIDs) must be at their specified operating 
temperature. One of the following procedures is required for FID or HFID 
optimization:
    (i) The procedure outlined in Society of Automotive Engineers (SAE) 
paper No. 770141, ``Optimization of a Flame Ionization Detector for 
Determination of Hydrocarbon in Diluted Automotive Exhausts''; author, 
Glenn D. Reschke. This procedure has been incorporated by reference at 
Sec. 89.6.
    (ii) The HFID optimization procedures outlined in 40 CFR part 1065, 
subpart D.
    (iii) Alternative procedures may be used if approved in advance by 
the Administrator.
    (iv) The procedures specified by the manufacturer of the FID or 
HFID.
    (3) After the optimum flow rates have been determined, record them 
for future reference.
    (c) Initial and periodic calibration. Prior to introduction into 
service, after any maintenance which could alter calibration, and 
monthly thereafter, the FID or HFID hydrocarbon analyzer shall be 
calibrated on all normally used instrument ranges using the steps in 
this paragraph (c). Use the same flow rate and pressures as when 
analyzing samples. Calibration gases shall be introduced directly at the 
analyzer, unless the ``overflow'' calibration option of 40 CFR part 
1065, subpart F, for the HFID is taken. New calibration curves need not 
be generated each month if the existing curve can be verified as 
continuing to meet the requirements of paragraph (c)(3) of this 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 having 
nominal concentrations starting between 10-15 percent and increasing 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. The incremental steps are 
to be spaced to represent good engineering practice. For each range 
calibrated, if the deviation from a least-squares best-fit straight line 
is 2 percent or less of the value at each data point, concentration 
values may be calculated by use of a single calibration factor for that 
range. If the deviation exceeds 2 percent at each non-zero data point 
and within 0.3 percent of full scale on the zero, 
the best-fit non-linear equation which represents the data to within 
these limits shall be used to determine concentration.
    (d) Oxygen interference optimization (required for raw). Choose a 
range where the oxygen interference check gases will fall in the upper 
50 percent. Conduct the test, as outlined in this paragraph, with the 
oven temperature set as required by the instrument manufacturer. Oxygen 
interference check gas specifications are found in Sec. 89.312(d).
    (1) Zero the analyzer.
    (2) Span the analyzer with the 21% oxygen interference gas specified 
in Sec. 89.312(d).
    (3) Recheck zero response. If it has changed more than 0.5 percent 
of full scale repeat paragraphs (d)(1) and (d)(2) of this section to 
correct problem.
    (4) Introduce the 5 percent and 10 percent oxygen interference check 
gases.
    (5) Recheck the zero response. If it has changed more 1 percent of full scale, repeat the test.
    (6) Calculate the percent of oxygen interference (designated as 
percent O2I) for each mixture in paragraph (d)(4) of this 
section.

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

Where:

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

[[Page 92]]

B = hydrocarbon concentration (ppmC) of the oxygen interference 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 FR 56995, 
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 this section.
    (b) Initial and periodic interference check. Prior to its 
introduction into service and annually thereafter, the NDIR carbon 
monoxide analyzer shall be checked for response to water vapor and 
CO2 in accordance with Sec. 318.96(b).
    (c) Initial and periodic calibration. Prior to its introduction into 
service, after any maintenance which could alter calibration, and every 
two months thereafter, the NDIR carbon monoxide analyzer shall be 
calibrated. New calibration curves need not be generated every two 
months if the existing curve can be verified as continuing to meet the 
requirements of paragraph (c)(3) of this section.
    (1) Adjust the analyzer to optimize performance.
    (2) Zero the carbon monoxide analyzer with either zero-grade air or 
zero-grade nitrogen.
    (3) Calibrate on each used operating range with carbon monoxide-in-
N2 calibration gases having nominal concentrations starting 
between 10 and 15 percent and increasing in at least 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 spaced to represent good 
engineering practice. For each range calibrated, if the deviation from a 
least-squares best-fit straight line is 2 percent or less of the value 
at each non-zero data point and within  0.3 
percent of full scale on the zero, concentration values may be 
calculated by use of a single calibration factor for that range. If the 
deviation exceeds these limits, the best-fit non-linear equation which 
represents the data to within these limits shall be used to determine 
concentration.
    (d) The initial and periodic interference, system check, and 
calibration test procedures specified in 40 CFR part 1065 may be used in 
lieu of the procedures specified in this section.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
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 receive 
the initial and periodic calibration described in this section.
    (b) Prior to its introduction into service, and monthly thereafter, 
the chemiluminescent oxides of nitrogen analyzer is checked for 
NO2 to NO converter efficiency according to Sec. 89.317.
    (c) Initial and periodic calibration. Prior to its introduction into 
service, after any maintenance which could alter calibration, and 
monthly thereafter, the chemiluminescent oxides of nitrogen analyzer 
shall be calibrated on all normally used instrument ranges. New 
calibration curves need not be generated each month if the existing 
curve can be verified as continuing to meet the requirements of 
paragraph (c)(3) of this section. 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 or 
zero-grade nitrogen.
    (3) Calibrate on each normally used operating range with NO-in-
N2 calibration gases with nominal concentrations starting at 
between 10 and 15 percent and increasing in at least 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 spaced to represent good 
engineering practice. For each range calibrated, if the deviation from a 
least-squares best-fit straight line is 2 percent or less of the value 
at each non-zero data point and within  0.3 
percent of full scale on the zero, concentration values may be 
calculated by use of a single calibration factor for that range. If the 
deviation exceeds these limits, the best-fit non-linear equation which 
represents the data to within these limits shall be used to determine 
concentration.

[[Page 93]]

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

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
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 maintenance 
which could alter calibration, and bi-monthly thereafter, the NDIR 
carbon dioxide analyzer shall be calibrated on all normally used 
instrument ranges. New calibration curves need not be generated each 
month if the existing curve can be verified as continuing to meet the 
requirements of paragraph (a)(3) of this section. Proceed as follows:
    (1) Follow good engineering practices for instrument start-up and 
operation. Adjust the analyzer to optimize performance.
    (2) Zero the carbon dioxide analyzer with either zero-grade air or 
zero-grade nitrogen.
    (3) Calibrate on each normally used operating range with carbon 
dioxide-in-N2 calibration or span gases having nominal 
concentrations starting between 10 and 15 percent and increasing in at 
least 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 spaced to 
represent good engineering practice. For each range calibrated, if the 
deviation from a least-squares best-fit straight line is 2 percent or 
less of the value at each non-zero data point and within  0.3 percent of full scale on the zero, concentration 
values may be calculated by use of a single calibration factor for that 
range. If the deviation exceeds these limits, the best-fit non-linear 
equation which represents the data to within these limits shall be used 
to determine concentration.
    (b) The initial and periodic interference, system check, and 
calibration test procedures specified in 40 CFR part 1065 may be used in 
lieu of the procedures in this section.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57012, Oct. 23, 1998; 70 FR 40445, July 13, 2005]



Sec. 89.323  NDIR analyzer calibration.

    (a) Detector optimization. If necessary, follow the instrument 
manufacturer's instructions for initial start-up and basic operating 
adjustments.
    (b) Calibration curve. Develop a calibration curve for each range 
used as follows:
    (1) Zero the analyzer.
    (2) Span the analyzer to give a response of approximately 90 percent 
of full-scale chart deflection.
    (3) Recheck the zero response. If it has changed more than 0.5 
percent 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 nominal 
concentrations starting between 10 and 15 percent and increasing in at 
least six incremental steps to 90 percent of that range. The incremental 
steps are to be spaced to represent good engineering practice.
    (5) Generate a calibration curve. The calibration curve shall be of 
fourth order or less, have five or fewer coefficients. If any range is 
within 2 percent of being linear a linear calibration may be used. 
Include zero as a data point. Compensation for known impurities in the 
zero gas can be made to the zero-data point. The calibration curve must 
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 this 
section exists; or
    (ii) The responses generated in paragraph (b)(4) of this section are 
within 1 percent of full scale or 2 percent of point, whichever is less, 
of the responses predicted by the calibration curve for the gases used 
in paragraph (b)(4) of this section.
    (7) If multiple range analyzers are used, the lowest range used must 
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 as 
often as

[[Page 94]]

required by the instrument manufacturer or necessary according to good 
practice.
    (b) If a methane analyzer is used, the methane analyzer shall be 
calibrated prior to introduction into service and monthly thereafter:
    (1) Follow the manufacturer's instructions for instrument startup 
and operation. Adjust the analyzer to optimize performance.
    (2) Zero the methane analyzer with zero-grade air.
    (3) Calibrate on each normally used operating range with 
CH4 in air with nominal concentrations starting between 10 
and 15 percent and increasing in at least 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 spaced to represent good engineering 
practice. For each range calibrated, if the deviation from a least-
squares best-fit straight line is 2 percent or less of the value at each 
non-zero data point and within  0.3 percent of 
full scale on the zero, concentration values may be calculated by use of 
a single calibration factor for that range. If the deviation exceeds 
these limits, the best-fit non-linear equation which represents the data 
to within these limits shall be used to determine concentration.

[63 FR 57013, Oct. 23, 1998]



Sec. 89.325  Engine intake air temperature measurement.

    (a) Engine intake air temperature measurement must be made within 
122 cm of the engine. The measurement location must be made either in 
the supply system or in the air stream entering the supply system.
    (b) The temperature measurements shall be accurate to within 2 [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 its absolute 
humidity altered is considered humidity- conditioned air. For this type 
of intake air supply, the humidity measurements must be made within the 
intake air supply system and after the humidity conditioning has taken 
place.
    (b) Nonconditioned air supply procedure. Humidity measurements in 
nonconditioned intake air supply systems must be made in the intake air 
stream entering the supply system. Alternatively, the humidity 
measurements can be measured within the intake air supply stream.

[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 low 
temperature charge air cooling device) between the turbocharger 
compressor and the intake manifold, follow SAE J1937. This procedure has 
been incorporated by reference. See Sec. 89.6. The temperature of the 
cooling medium and the temperature of the charge air 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 the full 
range of restrictions that are specified by the manufacturer for that 
particular engine.
    (b) Perform testing at the following inlet and exhaust restriction 
settings.
    (1) Equip the test engine with an air inlet system presenting an air 
inlet restriction within 5 percent of the upper limit at maximum air 
flow, as specified by the engine manufacturer for a clean air cleaner. 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 upper 
limit at maximum declared power, as specified by the engine 
manufacturer. A system representative of the installed engine may be 
used. In other cases a test shop system may be used.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57013, Oct. 23, 1998]



Sec. 89.329  Engine cooling system.

    An engine cooling system is required with sufficient capacity to 
maintain

[[Page 95]]

the engine at normal operating temperatures as prescribed by 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 for testing that 
meets the requirements as specified by the manufacturer for a particular 
engine and intended usage. Record the specifications of the lubricating 
oil used for the test.
    (b) Test fuels. (1) Use diesel fuels for testing which are clean and 
bright, with pour and cloud points adequate for operability. The diesel 
fuel may contain nonmetallic additives as follows: Cetane improver, 
metal deactivator, antioxidant, dehazer, antirust, pour depressant, dye, 
dispersant, and biocide.
    (2) Use petroleum fuel meeting the specifications in Table 4 in 
Appendix A of this subpart, or substantially equivalent specifications 
approved by the Administrator, for exhaust emission testing. The grade 
of diesel fuel used must be commercially designated as ``Type 2-D'' 
grade diesel fuel and recommended by the engine manufacturer.
    (3) Testing of Tier 1 and Tier 2 engines rated under 37 kW and Tier 
2 and Tier 3 engines rated at or above 37 kW that is conducted by the 
Administrator shall be performed using test fuels that meet the 
specifications in Table 4 in Appendix A of this subpart and that have a 
sulfur content no higher than 0.20 weight percent.
    (c) Other fuels may be used for testing provided they meet the 
following qualifications:
    (1) They are commercially available;
    (2) Information acceptable to the Administrator is provided to show 
that only the designated fuel would be used in customer service;
    (3) Use of a fuel listed under paragraph (b) of this section would 
have a detrimental effect on emissions or durability; and
    (4) Fuel specifications are approved in writing by the Administrator 
prior to the start of testing.
    (d) Report the specification range of the fuel to be used under 
paragraphs (b)(2) and (c)(1) through (c)(4) of this section in the 
application for certification in accordance with Sec. 89.115 (a)(8).
    (e) Low-sulfur test fuel. (1) Upon request, for engines rated at or 
above 75 kW in model years 2006 or 2007, the diesel test fuel may be the 
low-sulfur diesel test fuel specified in 40 CFR part 1065, 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 these engines 
are informed that the use of fuel meeting the 500 ppm specification is 
recommended.
    (B) Recommend to equipment manufacturers that a label be applied at 
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 be used 
in 2006 and 2007. For engines rated at or above 75 kW and under 130 kW, 
this option may be used only in 2007.
    (2) For model years 2008 through 2010, except as otherwise provided, 
the diesel test fuel shall be the low-sulfur diesel test fuel specified 
in 40 CFR part 1065.
    (3) The diesel test fuel shall be the ultra low-sulfur diesel test 
fuel 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 the ultra 
low-sulfur fuel specified in 40 CFR part 1065 if the manufacturer 
demonstrates that the in-use engines will use only fuel with 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 this subpart. In such 
cases, the test fuel described in appendix A of this subpart shall be 
the test fuel for all manufacturer and EPA testing.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57013, Oct. 23, 1998; 69 FR 39213, June 29, 2004]



Sec. 89.331  Test conditions.

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

[[Page 96]]

standard conditions for temperature and pressure (0 [deg]C and 101.3 
kPa), and these conditions must be used consistently throughout all 
calculations.
    (b) Engine test conditions. Measure the absolute temperature 
(designated as T and expressed in Kelvin) of the engine air at the inlet 
to the engine, and the dry atmospheric pressure (designated as p and 
expressed in kPa), and determine the parameter f according 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 f shall 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 Part 89--Tables

                Table 1--Abbreviations Used in 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 D and E
------------------------------------------------------------------------
    Symbol                         Term                         Unit
------------------------------------------------------------------------
conc.........  Concentration (ppm by volume)..............  ppm
f............  Engine specific parameter considering
                atmospheric conditions
FFCB.........  Fuel specific factor for the carbon balance
                calculation
FFD..........  Fuel specific factor for exhaust flow
                calculation on dry basis
FFH..........  Fuel specific factor representing the
                hydrogen to carbon ratio
FFW..........  Fuel specific factor for exhaust flow
                calculation 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 mode       1/min
                during the cycle).
Ps...........  Dry atmospheric pressure...................  kPa
Pd...........  Test ambient saturation vapor pressure at    kPa
                ambient temperature.
P............  Observed brake power output uncorrected....  kW
PAUX.........  Declared total power absorbed by             kW
                auxiliaries fitted for the test.
PM...........  Maximum power measured at the test speed     kW
                under test conditions.
Pi...........  Pi = PM, i + PAUX, i
PB...........  Total barometric pressure (average of the    kPa
                pre-test and 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
                (if applicable) (average).
Tclout.......  Coolant temperature outlet (average).......  K
TDd..........  Absolute dewpoint temperature..............  K
Td, i........  Torque (average at the i'th mode during the  N-m
                cycle).
TSC..........  Temperature of the intercooled air.........  K
Tref.........  Reference temperature......................  K
VEXHD........  Exhaust gas volume flow rate on dry basis..  m\3\/h
VAIRW........  Intake air volume flow rate on wet basis...  m\3\/h
PB...........  Total barometric pressure..................  kPa
VEXHW........  Exhaust gas volume flow rate on wet basis..  m\3\/h
WF...........  Weighing factor

[[Page 97]]

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


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


                                    Table 4--Federal Test Fuel Specifications
----------------------------------------------------------------------------------------------------------------
               Item                                   Procedure (ASTM) \1\                     Value (type 2-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 or D2622-98.....................................  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 incorporated by reference. See Sec.  89.6.
\2\ Minimum.
\3\ Remainder.


[63 FR 57013, Oct. 23, 1998]

[[Page 98]]

               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 to 
perform exhaust emission tests on new nonroad compression-ignition 
engines subject to the provisions of subpart B of this part.
    (b) Exhaust gases, either raw or dilute, are sampled while the test 
engine is operated using the appropriate test cycle on an engine 
dynamometer. The

[[Page 100]]

exhaust gases receive specific component analysis determining 
concentration of pollutant, exhaust volume, the fuel 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 this 
equipment are found in subpart D of this part.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
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 or Sec. 89.3 of this 
chapter apply to this subpart.
    (b) The abbreviations in Table 1 in appendix A to subpart D also 
apply to this subpart. Some abbreviations from Sec. 89.3 have been 
included for the convenience of the reader.
    (c) The symbols in Table 2 in appendix A to subpart D apply to this 
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 operating 
conditions to be conducted on an engine dynamometer. The exhaust gases, 
generated raw or dilute during engine operation, are sampled for 
specific component analysis through the analytical train. The test is 
applicable to engines equipped with catalytic or direct-flame 
afterburners, induction system modifications, or other systems, or to 
uncontrolled engines.
    (b) The test is designed to determine the brake-specific emissions 
of hydrocarbons, carbon monoxide, oxides of nitrogen, and particulate 
matter. For more information on particulate matter sampling see Sec. 
89.112(c). The test cycles consist of various steady-state operating 
modes that include different combinations of engine speeds and loads. 
These procedures require the determination of the concentration of each 
pollutant, exhaust volume, the fuel flow (raw analysis), and the power 
output during each mode. The measured values are weighted and used to 
calculate the grams of each pollutant emitted per kilowatt hour (g/kW-
hr).
    (c)(1) When an engine is tested for exhaust emissions, the complete 
engine shall be tested with all emission control devices installed 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 will be 
considered parasitic in nature and observed power shall be used in the 
emission calculation.
    (d) All emission control systems installed on or incorporated in the 
application must be functioning during all procedures in this subpart. 
In cases of component malfunction or failure, maintenance to correct 
component failure or malfunction must be authorized in accordance with 
Sec. 86.094-25 of this chapter.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
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 the information 
specified in this paragraph must accompany each engine sent to the 
Administrator for compliance testing. The manufacturer need not record 
the information specified in this paragraph for each test if the 
information, with the exception of paragraphs (b)(3) and (b)(9) of this 
section, is included in the manufacturer's application for 
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 prior to 
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. As long 
as this information is available for inspection by the Administrator, it 
may be summarized by system number or analyzer identification numbers.
    (d) Test data; pre-test. (1) Date and time of day.
    (2) Test number.
    (3) Intermediate speed and rated speed as defined in Sec. 89.2 and 
maximum observed torque for these speeds.
    (4) Recorder chart or equivalent. Identify the zero traces for each 
range used, and span traces for each range used.
    (5) Air temperature after and pressure drop across the charge air 
cooler (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 the associated 
analyzer range(s). Identify the start and finish of each test.
    (2) Observed engine torque.
    (3) Observed engine rpm.
    (4) Record engine torque and engine rpm continuously during each 
mode with a chart recorder or equivalent recording device.
    (5) Intake air flow (for raw mass flow sampling method only) and 
depression for each mode.
    (6) Engine intake air temperature at the engine intake or 
turbocharger 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 for each 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 FR 56995, 
57015, Oct. 23, 1998]



Sec. 89.406  Pre-test procedures.

    (a) Allow a minimum of 30 minutes warmup in the standby or operating 
mode prior to spanning the analyzers.
    (b) Replace or clean the filter elements and then vacuum leak check 
the system per Sec. 89.316(a). Allow the heated sample line, filters, 
and pumps to reach operating temperature.
    (c) Perform the following system checks:
    (1) Check the sample-line temperatures (see Sec. 89.309(a)(4)(ii) 
and (a)(5)(i)(A)).
    (2) Check that the system response time has been accounted for prior 
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 after each 
test. Further, check analyzer zero and span any time a range change is 
made or at the maximum demonstrated time span for stability for each 
analyzer used.
    (e) Check system flow rates and pressures.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
57015, Oct. 23, 1998]



Sec. 89.407  Engine dynamometer test run.

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

[[Page 102]]

    (b) The governor and fuel system shall have been adjusted to provide 
engine performance at the levels reported in the application for 
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 in Sec. 89.406.
    (3) Read and record the general test data as specified in Sec. 
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 the peak 
torque speed for 5 to 7 minutes;
    (C) Operate the engine at rated speed and maximum horsepower for 25 
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 at rated 
speed and maximum horsepower until the oil and water temperatures are 
stabilized. The temperatures are defined as stabilized if they are 
maintained within 2 percent of point on an absolute basis for 2 minutes. 
The engine must be operated a minimum of 10 minutes for this option. 
This optional procedure may be substituted for the procedure in 
paragraph (c)(5)(i)or (c)(5)(ii) of this section;
    (iv) Optional. If the engine has been operating on service 
accumulation for a minimum of 40 minutes, the service accumulation may 
be substituted for the procedure in paragraphs (c)(5)(i) through (iii) 
of this section.
    (6) Read and record all pre-test data specified in Sec. 89.405(d).
    (7) Start the test cycle (see Sec. 89.410) within 20 minutes of the 
end of the warmup. (See paragraph (c)(13) of this section.) A mode 
begins when the speed and load requirements are stabilized to within the 
requirements of Sec. 89.410(b). A mode ends when valid emission 
sampling for that mode ends. For a mode to be valid, the speed and load 
requirements must be maintained continuously during the mode. Sampling 
in the mode may be repeated until a valid sample is obtained as long the 
speed and torque requirements are met.
    (8) Calculate the torque for any mode with operation at rated speed.
    (9) During the first mode with intermediate speed operation, if 
applicable, calculate the torque corresponding to 75 and 50 percent of 
the 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 the a 
minimum of the last 60 seconds of each mode.
    (12) Test modes may be repeated, as long as the engine is 
preconditioned by running the previous mode. In the case of the first 
mode of any cycle, precondition according to paragraph (c)(5) of this 
section.
    (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 delay 
exceeds 4 hours, the test shall include preconditioning (begin at 
paragraph (c)(2) of this section).
    (14) The speed and load points for each mode are listed in Tables 1 
through 4 of Appendix B of this subpart. The engine speed and load shall 
be maintained as specified in Sec. 89.410(b).
    (15) If at any time during a test mode, the test equipment 
malfunctions or the specifications in paragraph (c)(14) of this section 
are not met, the test mode is void and may be aborted. The test mode may 
be restarted by preconditioning with the previous mode.
    (16) Fuel flow and air flow during the idle load condition may be 
determined just prior to or immediately following the dynamometer 
sequence, if longer times are required for accurate measurements.
    (d) Exhaust gas measurements. (1) Measure HC, CO, CO2, 
and NOX concentration in the exhaust sample.

[[Page 103]]

    (2) Each analyzer range that may be used during a test mode must 
have the zero and span responses recorded prior to the execution of the 
test. Only the zero and span for the range(s) used to measure the 
emissions during the test are required to be recorded after the 
completion of the test.
    (3) It is permissible to change filter elements between test modes.
    (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 or G4 (see 
Figure 1 in appendix B to subpart D) differs by more than 0.5 kPa from the pretest value, the test segment is 
void.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57015, Oct. 23, 1998]



Sec. 89.408  Post-test procedures.

    (a) A hangup check is recommended at the completion of the last test 
mode using the following procedure:
    (1) Within 30 seconds introduce a zero-grade gas or room air into 
the sample probe or valve V2 (see Figure 1 in appendix B to subpart 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 in 
paragraph (a)(1) of this section, the difference between the span-zero 
response and the hangup zero response shall not be greater than 5.0 
percent of full scale or 10 ppmC whichever is greater.
    (b) Begin the analyzer span checks within 6 minutes after the 
completion of the last mode in the test. Record for each analyzer the 
zero and span response
    (c) If during the test, the filter element(s) were replaced or 
cleaned, as of Sec. 89.316(a), the test is void.
    (d) Record the post-test data specified in Sec. 89.405(f).
    (e) For a valid test, the zero and span checks performed before and 
after each test for each analyzer must meet the following requirements:
    (1) The span drift (defined as the change in the difference between 
the zero response and the span response) must not exceed 3 percent 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 FR 56996, 
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 this subpart.
    (b) Determine from the data collection records the analyzer 
responses 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, and 
NOX concentrations by averaging the concentration of each 
point taken during the sample period for each mode.
    (e) For purposes of this section, calibration data includes 
calibration curves, linearity curves, span-gas responses, and zero-gas 
responses.

[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 cycles 
specified in tables 1 through 4 of appendix B of this subpart, subject 
to 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 of this 
subpart shall be used for all engines, except constant speed engines, 
engines rated under 19 kW, and propulsion marine diesel engines.
    (2) The 5-mode test cycle described in table 2 of appendix B of this 
subpart shall be used for constant-speed engines as defined in Sec. 
89.2. Any engine certified under this test cycle must meet the labeling 
requirements of Sec. 89.110(b)(11).
    (3) The 6-mode test cycle described in table 3 of appendix B of this 
subpart shall be used for variable speed engines rated under 19 kW.
    (4) Notwithstanding the provisions of paragraphs (a)(1) through 
(a)(3) of this

[[Page 104]]

section, the 4-mode test cycle described in table 4 of appendix B of 
this subpart shall be used for propulsion marine diesel 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 table 1 
of appendix B of this subpart for:
    (A) Constant speed engines, or variable speed engines rated under 19 
kW; or
    (B) Propulsion marine diesel engines, provided the propulsion marine 
diesel engines are certified in an engine family that includes primarily 
non-marine diesel engines, and the manufacturer obtains advance approval 
from the Administrator.
    (ii) The Administrator may use the 8-mode test cycle specified in 
table 1 of appendix B of this subpart during testing of any engine which 
was certified based on emission data collected from that test cycle.
    (b) During each non-idle mode, hold the specified load to within 2 
percent of the engine maximum value and speed to within 2 percent of point. During each idle mode, speed must be 
held within the manufacturer's specifications for the engine, and the 
throttle must be in the fully closed position and torque must not exceed 
5 percent of the peak torque value of mode 5.
    (c) For any mode except those involving either idle or full-load 
operation, if the operating conditions specified in paragraph (b) of 
this section cannot be maintained, the Administrator may authorize 
deviations from the specified load conditions. Such deviations shall not 
exceed 10 percent of the maximum torque at the test speed. The minimum 
deviations above and below the specified load necessary for stable 
operation shall be determined by the manufacturer and approved by the 
Administrator prior to the test run.
    (d) Power generated during the idle mode may not be included in the 
calculation of emission results.
    (e) Manufacturers may optionally use the ramped-modal duty cycles 
corresponding to the discrete-mode duty cycles specified in this 
section, as described in 40 CFR 1039.505.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57016, Oct. 23, 1998; 70 FR 40445, July 13, 2005]



Sec. 89.411  Exhaust sample procedure--gaseous components.

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

[[Page 105]]

pressures during spanning shall be approximately the same as those 
encountered during sampling. A sample bag may be used to identify the 
required analyzer range.
    (4) Recheck zero response. If this zero response differs from the 
zero response recorded in paragraph (c)(3) of this section by more than 
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 most recent 
zero and span response as the pre-analysis values.
    (6) If ADC equipment is used, electronically record the most recent 
zero and span response as the pre-analysis values.
    (7) Measure HC, CO, CO2, and NOX background 
concentrations in the sample bag(s) with approximately the same flow 
rates and pressures used in paragraph (c)(3) of this section. 
(Constituents measured continuously do not require bag analysis.)
    (8) A post-analysis zero and span check of each range must be 
performed and the values recorded. The number of events that may occur 
between the pre- and post-analysis checks is not specified. However, the 
difference between pre-analysis zero and span values (recorded in 
paragraph (c)(5) or (c)(6) of this section) versus those recorded for 
the post-analysis check may not exceed the zero drift limit or the span 
drift limit of 2 percent of full-scale chart deflection for any range 
used. Otherwise the test is void.
    (d) Continuous sample analysis. For continuous sample analysis 
perform the following sequence:
    (1) Warm up and stabilize the analyzers; clean and/or replace filter 
elements, conditioning columns (if used), and so forth, as necessary.
    (2) Leak check portions of the sampling system that operate at 
negative 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 analyzer 
port.
    (ii) Flow zero air through the overflow sampling system. Check the 
analyzer response.
    (iii) If the overflow zero response exceeds the analyzer zero 
response 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 operated 
prior to the beginning of the test cycle. The span gases shall have a 
concentration between 75 and 100 percent of full-scale chart deflection. 
The flow rates and system pressures shall be approximately the same as 
those encountered during sampling. The HFID analyzer shall be zeroed and 
spanned either through the overflow sampling system or through the 
analyzer port.
    (6) Re-check zero response. If this zero response differs from the 
zero response recorded in paragraph (d)(5) of this section by more than 
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 most recent 
zero and span response as the pre-analysis values.
    (8) If ADC equipment is used, electronically record the most recent 
zero and span response as the pre-analysis values.
    (9) Collect background HC, CO, CO2, and NOX in 
a sample bag (for dilute exhaust sampling only, see Sec. 89.420).
    (10) Perform a post-analysis zero and span check for each range used 
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 3 percent 
for HC, or 2 percent for NOX. CO, and CO2, of full 
scale chart deflection, or the test is void. (If the HC drift is greater 
than 3 percent of full-scale chart deflection, hydrocarbon hangup is 
likely.)
    (12) Determine background levels of NOX. CO, or 
CO2 (for dilute exhaust

[[Page 106]]

sampling only) by the bag sample technique outlined in paragraph (c) of 
this section.
    (e) Hydrocarbon hangup. If HC hangup is indicated, the following 
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 analyzer 
ports.
    (4) Analyze the background air through the entire sample probe 
system.
    (5) If the difference between the readings obtained greater than or 
equal to 2 percent of full scale deflection, 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)(6) of this 
section.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57016, Oct. 23, 1998]



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

    (a) Schematic drawing. An example of a sampling and analytical 
system which may be used for testing under this subpart is shown in 
Figure 1 in appendix B to subpart D. All components or parts of 
components that are wetted by the sample or corrosive calibration gases 
shall be either chemically cleaned stainless steel or inert material, 
for example, polytetrafluoroethylene resin. The use of ``gauge savers'' 
or ``protectors'' with nonreactive 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 diameter shall not be 
greater than the inside diameter of the sample line plus 0.03 cm. The 
wall thickness of the probe shall not be greater than 0.10 cm. The 
fitting that attaches the probe to the exhaust pipe shall be as small as 
practical in order to minimize heat loss from the probe.
    (2) The probe shall have a minimum of three holes. The spacing of 
the radial planes for each hole in the probe must be such that they 
cover approximately equal cross-sectional areas of the exhaust duct. See 
Figure 1 in appendix A to this subpart. 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] (that is, 
section view C-C of Figure 1 in appendix A to this subpart). The holes 
should be sized such that each has approximately the same flow. If only 
three holes are used, they may not all be in the same radial plane.
    (3) The probe shall extend radially across the exhaust duct. The 
probe must pass through the approximate center and must extend across at 
least 80 percent of the diameter of the duct.
    (c) Sample transfer line. (1) The maximum inside diameter of the 
sample line shall not exceed 1.32 cm.
    (2) If valve V2 is used, the sample probe must connect directly to 
valve V2. The location of optional valve V2 may not be greater than 1.22 
m from the exhaust duct.
    (3) The location of optional valve V16 may not be greater than 61 cm 
from the sample pump.
    (d) Venting. All vents, including analyzer vents, bypass flow, and 
pressure relief vents of regulators, should be vented in such a manner 
to avoid endangering personnel in the immediate area.
    (e) 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.
    (f) Additional components, such as instruments, valves, solenoids, 
pumps, switches, and so forth, may be employed to provide additional 
information and coordinate the functions of the component systems.
    (g) The following requirements must be incorporated in each system 
used for raw testing under this subpart.
    (1) [Reserved]
    (2) The sample transport system from the engine exhaust pipe to the 
HC analyzer and the NOX analyzer must be heated as indicated 
in Figure 1 in appendix B of subpart D.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
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 least 
0.5 m or 3 times the diameter of the exhaust pipe--whichever is the 
larger--upstream of the exit of the exhaust gas system.
    (b) In the case of a multi-cylinder engine with a branched exhaust 
manifold, the inlet of the probe shall be located sufficiently far 
downstream so as to ensure that the sample is representative of the 
average exhaust emissions from all cylinders.
    (c) In multi-cylinder engines having distinct groups of manifolds, 
such as in a ``Vee'' engine configuration, it is permissible to:
    (1) Sample after all exhaust pipes have been connected together into 
a single exhaust pipe.
    (2) For each mode, sample from each exhaust pipe and average the 
gaseous concentrations to determine a value for each mode.
    (3) Sample from all exhaust pipes simultaneously with the sample 
lines connected to a common manifold prior to the analyzer. It must be 
demonstrated that the flow rate through each individual sample line is 
4 percent of the average flow rate through all the 
sample lines.
    (4) Use another method, if it has been approved in advance by the 
Administrator.
    (d) All gaseous heated sampling lines shall be fitted with a heated 
filter to extract solid particles from the flow of gas required for 
analysis. The sample line for CO and CO2 analysis may be 
heated or unheated.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57016, Oct. 23, 1998]



Sec. 89.414  Air flow measurement specifications.

    (a) The air flow measurement method used must have a range large 
enough to accurately measure the air flow over the engine operating 
range 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 air 
flow measurement (such as air bleeds) that result in understated exhaust 
emission results, corrections to the exhaust emission results shall be 
made to account for such effects.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57017, Oct. 23, 1998]



Sec. 89.415  Fuel flow measurement specifications.

    The fuel flow rate measurement instrument must have a minimum 
accuracy of 2 percent of the engine maximum fuel flow rate. The 
controlling parameters are the elapsed time measurement of the event and 
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 methods 
described in this section and conform to the tolerances of table 3 in 
appendix A to subpart D:
    (a) Measurement of the air flow and the fuel flow by suitable 
metering systems (for details see SAE J244. This procedure has been 
incorporated by reference. See Sec. 89.6.) and calculation of the 
exhaust gas flow as follows:

GEXHW = GAIRW + GFUEL (for wet exhaust 
    mass)

or

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


or

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

    (b) Exhaust mass calculation from fuel consumption (see Sec. 
89.415) and exhaust gas concentrations using the method found 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 60 
seconds of each mode are recorded, and the average values for HC, CO, 
CO2, and NOX during each mode are determined from

[[Page 108]]

the average concentration readings determined from the corresponding 
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 steps 
described in this section.
    (b) The exhaust gas flow rate GEXHW and VEXHW 
shall be determined for each mode.
    (1) For measurements using the mass flow method, see Sec. 
89.416(a).
    (2) For measurements using the fuel consumption and exhaust gas 
concentrations 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 the 
following 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 applicable only for measurements made on 
raw 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 equations in paragraph 
(c)(1) or (c)(2) of this section.

    (1) For measurements using the mass flow method (see Sec. 
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 gas 
concentrations 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 air conditions, 
the NOX concentration shall be corrected for intake air 
temperature and humidity with the factor Kh given in the 
following formula. For engines operating on alternative combustion 
cycles, other correction formulas may be used if they can be justified 
or validated. The formula follows:

[[Page 110]]

[GRAPHIC] [TIFF OMITTED] TR23OC98.016

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

Gas mass = u x Gas conc. x GEXHW
Gas mass = v x Gas conc. x VEXHD
Gas mass = w x Gas conc. x VEXHW
    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 for 273.15 [deg]K (0 [deg]C) and 101.3 kPa. In cases
  where the reference conditions vary from those stated, an error may occur in the calculations.

    (f) The following equations may be used to calculate the 
coefficients u, v, and w in paragraph (e) of this section for other 
conditions of temperature and pressure:
    (1) For the calculation of u, v, and w for NOX (as 
NO2), CO, HC (in paragraph (e) of this section as 
CH1.80), 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 at 
temperature (designated as T) and pressure (designated as p):


--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 x 10-3 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 individual 
components

[[Page 111]]

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

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

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57017, Oct. 23, 1998]



Sec. 89.419  Dilute gaseous exhaust sampling and analytical system 

description.

    (a) General. The exhaust gas sampling system described in this 
section is designed to measure the true mass of gaseous emissions in the 
exhaust of petroleum-fueled nonroad compression-ignition engines. This 
system utilizes the CVS concept (described in 40 CFR part 1065, subparts 
A and B) of measuring mass emissions of HC, CO, and CO2. A 
continuously integrated system is required for HC and NOX 
measurement and is allowed for all CO and CO2 measurements. 
The mass of gaseous emissions is determined from the sample 
concentration and total flow over the test period. As an option, the 
measurement of total fuel mass consumed over a cycle may be substituted 
for the exhaust measurement of CO2. General requirements are 
as follows:
    (1) This sampling system requires the use of a PDP-CVS and a heat 
exchanger or a CFV-CVS with either a heat exchanger or electronic flow 
compensation. Figure 2 in appendix A to this subpart is a schematic 
drawing of the PDP-CVS system. Figure 3 in appendix A to this subpart is 
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 diluted exhaust 
stream through a heated probe and integrated continuously over the test 
cycle. Unless compensation for varying flow is made, the HFID must be 
used with a constant flow system to ensure a representative sample.
    (ii) The heated probe shall be located in the primary dilution 
tunnel and far enough downstream of the mixing chamber to ensure a 
uniform sample distribution across the CVS duct at the point of 
sampling.
    (3) The CO and CO2 analytical system requires:
    (i) Bag sampling (see 40 CFR part 1065) and analytical capabilities 
(see 40 CFR part 1065), as shown in Figure 2 and Figure 3 in appendix A 
to this subpart; or
    (ii) Continuously integrated measurement of diluted CO and 
CO2 meeting the minimum requirements and technical 
specifications contained in paragraph (b)(4) of this section. Unless 
compensation for varying flow is made, a constant flow system must be 
used to ensure a representative sample.
    (4) The NOX analytical system requires a continuously 
integrated measurement of diluted NOX meeting the minimum 
requirements and technical specifications contained in paragraph (b)(4) 
of this section. Unless compensation for varying flow is made, a 
constant 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. Additional 
components such as instruments, valves, solenoids, pumps, and switches 
may be used to provide additional information and coordinate the 
functions of the component systems. Other components, such as snubbers, 
which are not needed to maintain

[[Page 112]]

accuracy on some systems, may be excluded if their exclusion is based 
upon good engineering judgment.
    (6) Other sampling and/or analytical systems may be used if shown to 
yield equivalent results and if approved in advance by the 
Administrator.
    (b) Component description. The components necessary for exhaust 
sampling shall meet the following requirements:
    (1) Exhaust dilution system. The PDP-CVS shall conform to all of the 
requirements listed for the exhaust gas PDP-CVS in 40 CFR part 1065. The 
CFV-CVS shall conform to all the requirements listed for the exhaust gas 
CFV-CVS in 40 CFR part 1065. In addition, the CVS must conform to the 
following requirements:
    (i) The flow capacity of the CVS must be sufficient to maintain the 
diluted exhaust stream at or below the temperature required for the 
measurement of hydrocarbon emissions noted in the following paragraph 
and to prevent condensation of water at any point in the dilution 
tunnel.
    (ii) The flow capacity of the CVS must be sufficient to maintain the 
diluted exhaust stream in the primary dilution tunnel at a temperature 
of 191 [deg]C or less at the sampling zone for hydrocarbon measurement 
and as required to prevent condensation at any point in the dilution 
tunnel. Gaseous emission samples may be taken directly from this 
sampling point.
    (iii) For the CFV-CVS, either a heat exchanger or electronic flow 
compensation is required (see Figure 3 in appendix A to this subpart).
    (iv) For the CFV-CVS when a heat exchanger is used, the gas mixture 
temperature, measured at a point immediately ahead of the critical flow 
venturi, shall be within 11 [deg]C) of the average 
operating temperature observed during the test with the simultaneous 
requirement that condensation does not occur. The temperature measuring 
system (sensors and readout) shall have an accuracy and precision of 
2 [deg]C. For systems utilizing a flow compensator 
to maintain proportional flow, the requirement for maintaining 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 HC sample 
system (as shown in Figure 2 or 3 in appendix A to this subpart) uses an 
``overflow'' zero and span system. In this type of system, excess zero 
or span gas spills out of the probe when zero and span checks of the 
analyzer are made. The ``overflow'' system may also be used to calibrate 
the HC analyzer according to 40 CFR part 1065, subpart F, although this 
is not required.
    (ii) No other analyzers may draw a sample from the continuous HC 
sample probe, line or system, unless a common sample pump is used for 
all analyzers and the sample line system design reflects good 
engineering practice.
    (iii) The overflow gas flow rates into the sample line shall be at 
least 105 percent of the sample system flow rate.
    (iv) The overflow gases shall enter the heated sample line as close 
as practical to the outside surface of the CVS duct or dilution tunnel.
    (v) The continuous HC sampling system shall consist of a probe 
(which must raise the sample to the specified temperature) and, where 
used, a sample transfer system (which must maintain the specified 
temperature). The continuous hydrocarbon sampling system (exclusive of 
the probe) shall:
    (A) Maintain a wall temperature of 191 [deg]C 11 [deg]C as measured at every separately controlled 
heated component (that is, filters, heated line sections), using 
permanent thermocouples located at each of the separate components.
    (B) Have a wall temperature of 191 [deg]C 11 
[deg]C over its entire length. The temperature of the system shall be 
demonstrated by profiling the thermal characteristics of the system 
where possible at initial installation and after any major maintenance 
performed on the system. The profiling shall be accomplished using the 
insertion thermocouple probing technique. The system temperature will be 
monitored continuously during testing at the locations and temperature 
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 gas temperatures will be determined by a temperature sensor 
located immediately upstream of each component.
    (vi) The continuous hydrocarbon sampling probe shall:
    (A) Be defined as the first 25 cm to 76 cm of the continuous 
hydrocarbon sampling system.
    (B) Have a 0.48 cm minimum inside diameter.
    (C) Be installed in the primary dilution tunnel at a point where the 
dilution air and exhaust are well mixed (that is, approximately 10 
tunnel diameters downstream of the point where the exhaust enters the 
dilution tunnel).
    (D) Be sufficiently distant (radially) from other probes and the 
tunnel wall so as to be free from the influence of any wakes or eddies.
    (E) Increase the gas stream temperature to 191 [deg]C 11 [deg]C at the exit of the probe. The ability of the 
probe to accomplish this shall be demonstrated using the insertion 
thermocouple technique at initial installation and after any major 
maintenance. Compliance with the temperature specification shall be 
demonstrated by continuously recording during each test the temperature 
of either the gas stream or the wall of the sample probe at its 
terminus.
    (vii) The response time of the continuous measurement system shall 
be no greater than:
    (A) 1.5 seconds from an instantaneous step change at the port 
entrance to the analyzer to within 90 percent of the step change.
    (B) 20 seconds from an instantaneous step change at the entrance to 
the sample probe or overflow span gas port to within 90 percent of the 
step change. Analysis system response time shall be coordinated with CVS 
flow fluctuations and sampling time/test cycle offsets if necessary.
    (C) For the purpose of verification of response times, the step 
change shall be at least 60 percent of full-scale chart deflection.
    (3) Primary dilution tunnel. (i) The primary dilution tunnel shall 
be:
    (A) Small enough in diameter to cause turbulent flow (Reynolds 
Number greater than 4000) and of sufficient length to cause complete 
mixing of the exhaust and dilution air;
    (B) At least 46 cm in diameter; (engines below 110 kW may use a 
dilution tunnel that is 20 cm in diameter or larger)
    (C) Constructed of electrically conductive material which does not 
react with the exhaust components; and
    (D) Electrically grounded.
    (ii) The temperature of the diluted exhaust stream inside of the 
primary dilution tunnel shall be sufficient to prevent water 
condensation.
    (iii) The engine exhaust shall be directed downstream at the point 
where it is introduced into the primary dilution tunnel.
    (4) Continuously integrated NOX. CO, and CO2 
measurement systems. (i) The sample probe shall:
    (A) Be in the same plane as the continuous HC probe, but shall be 
sufficiently distant (radially) from other probes and the tunnel wall so 
as to be free from the influences of any wakes or eddies.
    (B) Heated and insulated over the entire length, to prevent water 
condensation, to a minimum temperature of 55 [deg]C. Sample gas 
temperature immediately before the first filter in the system shall be 
at least 55 [deg]C.
    (ii) The continuous NOX, CO, or CO2 sampling 
and analysis system shall conform to the specifications of 40 CFR 
1065.145 with the following exceptions and revisions:
    (A) The system components required to be heated by 40 CFR 1065.145 
need only be heated to prevent water condensation, the minimum component 
temperature shall be 55 [deg]C.
    (B) The system response shall meet the specifications in 40 CFR part 
1065, subpart C.
    (C) Alternative NOX measurement techniques outlined in 40 
CFR part 1065, subpart D, are not permitted for NOX 
measurement in this subpart.
    (D) All analytical gases must conform to the specifications of Sec. 
89.312.
    (E) Any range on a linear analyzer below 155 ppm must have and use a 
calibration curve conforming to Sec. 89.310.
    (iii) The chart deflections or voltage output of analyzers with non-
linear

[[Page 114]]

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

[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 a sample 
of dilution air during the exhaust collection phase of each test cycle 
mode.
    (1) Individual background samples may be produced and analyzed for 
each mode. Hence, a unique background value will be used for the 
emission calculations for each mode.
    (2) Alternatively, a single background sample may be produced by 
drawing a sample during the collection phase of each of the test cycle 
modes. Hence, a single cumulative background value will be used for the 
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 chart 
deflection over a 10-second stabilized period is stored. All readings 
taken during the 10-second interval must be stable at the final value to 
within 1 percent of full scale.
    (c) Measure HC, CO, CO2, and NOX exhaust and 
background concentrations in the sample bag(s) with approximately the 
same flow rates and pressures used during calibration.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57018, Oct. 23, 1998]



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

    (a) Schematic drawings. Figure 4 in appendix A to this subpart is a 
schematic drawing of the exhaust gas analytical system used for 
analyzing CVS bag samples from compression- ignition engines. Since 
various configurations can produce accurate results, exact conformance 
with the drawing is not required. Additional components such as 
instruments, valves, solenoids, pumps and switches may be used to 
provide additional information and coordinate the functions of the 
component systems. Other components such as snubbers, which are not 
needed to maintain accuracy in some systems, may be excluded if their 
exclusion 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 ionization detector 
(FID) (heated for petroleum-fueled compression-ignition engines to 191 
[deg]C 6 [deg]C) for the measurement of 
hydrocarbons, nondispersive infrared analyzers (NDIR) for the 
measurement of carbon monoxide and carbon dioxide, and a 
chemiluminescence detector (CLD) (or HCLD) for the measurement of oxides 
of nitrogen. The exhaust gas analytical system shall conform to the 
following requirements:
    (1) The CLD (or HCLD) requires that the nitrogen dioxide present in 
the sample be converted to nitric oxide before analysis. Other types of 
analyzers may be used if shown to yield equivalent results and if 
approved in advance by the Administrator.
    (2) If CO instruments are used which are essentially free of 
CO2 and water vapor interference, the use of the conditioning 
column may be deleted. (See 40 CFR part 1065, subpart D.)
    (3) A CO instrument will be considered to be essentially free of 
CO2 and water vapor interference if its response to a mixture 
of 3 percent CO2 in N2, which has been bubbled through water 
at room temperature, produces an equivalent CO response, as measured on 
the most sensitive CO range, which is less than 1 percent of full scale 
CO concentration on ranges above 300 ppm full scale or less than 3 ppm 
on ranges below 300 ppm full scale. (See 40 CFR part 1065, subpart D.)
    (c) Alternate analytical systems. Alternate analysis systems meeting 
the specifications of 40 CFR part 1065, subpart A, may be used for the 
testing required under this subpart. Heated analyzers may be used in 
their heated configuration.
    (d) Other analyzers and equipment. Other types of analyzers and 
equipment may be used if shown to yield equivalent results and if 
approved 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 and restrictor 
valve.
    (1) The flowmeter calibration must be traceable to NIST 
measurements, and will serve as the reference value (NIST ``true'' 
value) for the CVS calibration. (Note: In no case should an upstream 
screen or other restriction which can affect the flow be used ahead of 
the flowmeter unless 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 or ASME flow nozzles 
are considered equivalent if traceable to NIST measurements. Other 
measurement systems may be used if shown to be equivalent under the test 
conditions in this section and traceable to NIST measurements.
    (3) Measurements of the various flowmeter parameters are recorded 
and related to flow through the CVS.
    (4) Procedures used by EPA for both PDP-CVS and CFV-CVS are outlined 
below. Other procedures yielding equivalent results may be used if 
approved in advance by the Administrator.
    (b) After the calibration curve has been obtained, verification of 
the entire system may be performed by injecting a known mass of gas into 
the system and comparing the mass indicated by the system to the true 
mass injected. An indicated error does not necessarily mean that the 
calibration is wrong, since other factors can influence the accuracy of 
the system (for example, analyzer calibration, leaks, or HC hangup). A 
verification procedure is found in paragraph (e) of this section.
    (c) PDP-CVS calibration. (1) The following calibration procedure 
outlines the equipment, the test configuration, and the various 
parameters which must be measured to establish the flow rate of the PDP-
CVS pump.
    (i) All the parameters related to the pump are simultaneously 
measured with the parameters related to a flowmeter which is connected 
in 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 value of a specific 
combination of pump parameters.
    (iii) The linear equation which relates the pump flow and the 
correlation function is then determined.
    (iv) In the event that a CVS has a multiple speed drive, a 
calibration for each range used must be performed.
    (2) This calibration procedure is based on the measurement of the 
absolute values of the pump and flowmeter parameters that relate the 
flow rate at each point. Two conditions must be maintained to assure the 
accuracy and integrity of the calibration curve:
    (i) The temperature stability must be maintained during calibration. 
(Flowmeters are sensitive to inlet temperature oscillations; this can 
cause the data points to be scattered. Gradual changes in temperature 
are acceptable as long as they occur over a period of several minutes.)
    (ii) All connections and ducting between the flowmeter and the CVS 
pump must be absolutely void of leakage.
    (3) During an exhaust emission test the measurement of these same 
pump parameters enables the user to calculate the flow rate from the 
calibration equation.
    (4) Connect a system as shown in Figure 5 in appendix A to this 
subpart. Although particular types of equipment are shown, other 
configurations that yield equivalent results may be used if approved in 
advance by the Administrator. For the system indicated, the following 
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 metering       ETI                  [deg]C.............  1.1 [deg]C
 venturi.

[[Page 116]]

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

    (5) After the system has been connected as shown in Figure 5 in 
appendix A to this subpart, set the variable restrictor in the wide open 
position and run the CVS pump for 20 minutes. Record the calibration 
data.
    (6) Reset the restrictor valve to a more restricted condition in an 
increment of pump inlet depression that will yield a minimum of six data 
points for the total calibration. Allow the system to stabilize for 3 
minutes and repeat the data acquisition.
    (7) Data analysis:
    (i) The air flow rate, Qs, at each test point is 
calculated 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 pump inlet 
temperature and pressure:
[GRAPHIC] [TIFF OMITTED] TR17JN94.020

Where:

Vo = Pump flow, (m\3\/rev) at Tp, Pp.
Qs = Meter air flow rate in standard cubic meters 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 inlet temp [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 then calculated 
from the calibration data:
[GRAPHIC] [TIFF OMITTED] TR17JN94.021

Xo = correlation function.
[Delta]p = The pressure differential from pump inlet to pump outlet, 
(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 the 
calibration 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 must be calibrated on each 
speed used. The calibration curves generated for the ranges will be 
approximately parallel and the intercept values, Do, will 
increase as the pump flow range decreases.
    (9) If the calibration has been performed carefully, the calculated 
values from the equation will be within 0.50 
percent of the measured value of Vo. Values of M will vary 
from one pump to another, but values of Do for pumps of the 
same make, model, and range should agree within 3 
percent of each other. Calibrations should be performed at pump start-up 
and after major maintenance to assure the stability of the pump slip 
rate. Analysis of mass injection data will also reflect pump slip 
stability.
    (d) CFV-CVS calibration. (1) Calibration of the CFV is based upon 
the flow equation for a critical venturi. Gas flow is a function of 
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) of this section 
establishes the value of the calibration coefficient at measured values 
of pressure, temperature, and air flow.
    (2) The manufacturer's recommended procedure shall be followed for 
calibrating 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(Inches H2O).......  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 subpart 
and eliminate leaks. (Leaks between the flow measuring devices and the 
critical flow venturi will seriously affect the accuracy of the 
calibration.)
    (5) Set the variable flow restrictor to the open position, start the 
blower, and allow the system to stabilize. Record data from all 
instruments.
    (6) Vary the flow restrictor and make at least eight readings across 
the critical flow range of the venturi.
    (7) Data analysis. The data recorded during the calibration are to 
be used in the following calculations:
    (i) The air flow rate (designated as Qs) at each test point is 
calculated in standard cubic feet per minute from the flow meter data 
using the manufacturer's prescribed method.
    (ii) Calculate values of the calibration coefficient for each test 
point:
[GRAPHIC] [TIFF OMITTED] TR17JN94.023

Where:

Qs = Flow rate in standard cubic meter per minute, 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 inlet pressure. For choked 
flow, Kv will have a relatively constant value. As pressure decreases 
(vacuum increases), the venturi becomes unchoked and Kv decreases. (See 
Figure 7 in appendix A to this subpart.)
    (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 average Kv, 
take corrective action.
    (e) CVS system verification. The following ``gravimetric'' technique 
can be used to verify that the CVS and analytical instruments can 
accurately measure a mass of gas that has been injected into the system. 
(Verification can also be accomplished by constant flow metering using 
critical flow orifice devices.)
    (1) Obtain a small cylinder that has been charged with 99.5 percent 
or greater propane or carbon monoxide gas (Caution--carbon monoxide is 
poisonous).
    (2) Determine a reference cylinder weight to the nearest 0.01 grams.
    (3) Operate the CVS in the normal manner and release a quantity of 
pure propane into the system during the sampling period (approximately 5 
minutes).

[[Page 118]]

    (4) The calculations are performed in the normal way except in the 
case 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 mass 
and then divided by the gravimetric mass to determine the percent 
accuracy of the system.
    (6) Good engineering practice requires that the cause for any 
discrepancy greater than 2 percent must be found 
and corrected.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
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 use of 
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 measured during the 
mode divided by the sample time for the mode.
WFi = Effective weighing factor.
Pi = Power measured during each mode (Power set = zero for 
the idle mode).
    (b) The mass of each pollutant for each mode for bag measurements 
and diesel heat exchanger system measurements is determined from the 
following equations:
    (1) Hydrocarbon mass:

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

    (2) Oxides of nitrogen mass:

NOXmass = Vmix x DensityNO2 x KH x 
    (NOXconc/10\6\)

    (3) Carbon monoxide mass:

COmass= Vmixx DensityCOx 
    (COconc/10\6\)

    (4) Carbon dioxide mass:

CO2mass= Vmixx DensityCO2 x 
    (CO2conc/102)

    (c) The mass of each pollutant for the mode for flow compensated 
sample 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 test mode.
DensityHC= Density of hydrocarbons is (.5800 kg/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 1 diesel, and 
1:1.80 for 2 diesel at 20 [deg]C and 101.3 kPa pressure.
HCconc= Hydrocarbon concentration of the dilute exhaust 
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 dilute exhaust bag 
sample or, for diesel heat exchanger systems, average hydrocarbon 
concentration of the dilute exhaust sample as calculated from the 
integrated HC traces, in ppm carbon equivalent. For flow compensated 
sample systems (HCe)i is the instantaneous 
concentration.
HCd= Hydrocarbon concentration of the dilution air as 
measured, in ppm carbon equivalent.

    (2) For oxides of nitrogen equations:

NOXmass = Oxides of nitrogen emissions, in grams per test 
mode.
Density NO2= Density of oxides of nitrogen is 1.913 kg/m\3\, 
assuming they are in the form of nitrogen dioxide, at 20 [deg]C and 
101.3 kPa pressure.
NOXconc= Oxides of nitrogen concentration of the dilute 
exhaust sample corrected for background, in ppm:
[GRAPHIC] [TIFF OMITTED] TR17JN94.028

Where:

NOX.= Oxides of nitrogen concentration of the dilute exhaust 
bag sample as measured, in ppm. For flow compensated sample systems 
(NOX.)i is the instantaneous concentration.
NOX.= Oxides of nitrogen concentration of the dilute air as 
measured, in ppm.

    (3) For carbon monoxide equations:

COmass=Carbon monoxide emissions, grams per test mode. 
    DensityCO=Density of carbon monoxide (1.164 kg/m\3\ at 20 
    [deg]C and 101.3 kPa pressure).
COconc=Carbon monoxide concentration of the dilute exhaust 
    sample corrected for background, water vapor, and CO2 
    extraction, ppm.
    [GRAPHIC] [TIFF OMITTED] TR17JN94.029
    
Where:

COe=Carbon monoxide concentration of the dilute exhaust bag 
sample volume corrected for water vapor and carbon dioxide extraction, 
ppm. For flow compensated

[[Page 120]]

sample systems, (COe)i is the instantaneous 
concentration.

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

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

Where:

COem=Carbon monoxide concentration of the dilute exhaust 
sample as measured, ppm.
CO2.=Carbon dioxide concentration of the dilute exhaust bag 
sample, in percent, if measured. For flow compensated sample systems, 
(CO2.)i is the instantaneous concentration. For 
cases where exhaust sampling of CO2 is not performed, the 
following approximation is permitted:
[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 the dilution air 
corrected for water vapor extraction, ppm.
COd=(1-0.000323R)COdm
Where:

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

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

    (4) For carbon dioxide equation:

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

Where:

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

    (6) Measured ``dry'' concentrations shall be corrected to a wet 
basis, if not already measured on a wet basis. This section is 
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 in 
paragraph (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) of 
this section, the following equation applies:
[GRAPHIC] [TIFF OMITTED] TR23OC98.021

    Where: Ha and Hd are the grams of water per 
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 fuel per 
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 a mode.

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

Where:

M=Mass of fuel, in grams, used by the engine during the mode.
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 the mode
CO2mass=carbon monoxide emissions, in grams for the mode
CO2mass=carbon dioxide emissions, in grams for the mode
[alpha]=The atomic hydrogen to carbon ratio of the fuel.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57018, Oct. 23, 1998; 70 FR 40446, July 13, 2005]



Sec. 89.425  [Reserved]

[[Page 123]]



            Sec. Appendix A to Subpart E of Part 89--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 Part 89--Tables

                              Table 1--8-Mode Test Cycle for Variable-Speed Engines
----------------------------------------------------------------------------------------------------------------
                                                                             Observed
                                                                            torque \2\    Minimum
          Test segment                Mode number       Engine speed \1\   (percent of    time in     Weighting
                                                                               max.         mode       factors
                                                                            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 of point. Engine speed (idle): Within
  manufacturer's specifications. Idle speed is specified by the manufacturer.
\2\ Torque (non-idle): Throttle fully open for 100 percent points. Other non-idle points: 
  2 percent of engine maximum value. Torque (idle): Throttle fully closed. Load less than 5 percent of peak
  torque.


                              Table 2--5-Mode Test Cycle for Constant-Speed Engines
----------------------------------------------------------------------------------------------------------------
                                                                             Observed
                                                                            torque \2\    Minimum
                Mode number                        Engine\1\ Speed         (percent of    time in     Weighting
                                                                               max.         mode       factors
                                                                            observed)    (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. Other points:  2 percent of engine
  maximum value.


                            Table 3--6-Mode Test Cycle for Engines Rated Under 19 kW
----------------------------------------------------------------------------------------------------------------
                                                                             Observed
                                                                            torque \2\    Minimum
                Mode number                        Engine speed \1\        (percent of    time in     Weighting
                                                                               max.         mode       factors
                                                                            observed)    (minutes)
----------------------------------------------------------------------------------------------------------------
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 of point. Engine speed (idle): Within
  manufacturer's specifications. Idle speed is specified by the manufacturer.
\2\ Torque (non-idle): Throttle fully open for operation at 100 percent point. Other nonidle points:  2 percent of engine maximum value. Torque (idle): Throttle fully closed. Load less than 5
  percent of peak torque.


                         Table 4--4-Mode Test Cycle for Propulsion Marine Diesel Engines
----------------------------------------------------------------------------------------------------------------
                                                   Engine speed   Observed power
                                                   \1\ (percent    \2\ (percent    Minimum time      Weighting
                   Mode number                        of max.         of max.         in mode         factors
                                                     observed)       observed)       (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 percent point. Other points:  2
  percent of engine maximum value.


[63 FR 57019, Oct. 23, 1998]



                Subpart F_Selective Enforcement Auditing



Sec. 89.501  Applicability.

    The requirements of subpart F are applicable to all nonroad engines 
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 percentage of 
failing engines that can be considered a satisfactory process average 
for sampling inspections.
    Configuration means any subclassification of an engine family which 
can be described on the basis of gross power, emission control system, 
governed speed, injector size, engine calibration, and other parameters 
as designated by the Administrator.
    Inspection criteria means the pass and fail numbers associated with 
a particular sampling plan.
    Test engine means an engine in a test sample.
    Test sample means the collection of engines selected from the 
population of an engine family for emission testing.

[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 any 
testing under this subpart.
    (b) The test order is signed by the Assistant Administrator for Air 
and Radiation or his or her designee. The test order must be delivered 
in person by an EPA enforcement officer or EPA authorized representative 
to a company representative or sent by registered mail, return receipt 
requested, to the manufacturer's representative who signed the 
application for certification submitted by the manufacturer, pursuant to 
the requirements of the applicable section of subpart B of this part. 
Upon receipt of a test order, the manufacturer must comply with all of 
the provisions of this subpart and instructions in the test order.
    (c) Information included in test order. (1) The test order will 
specify the engine family to be selected for testing, the manufacturer's 
engine assembly plant or associated storage facility or port facility 
(for imported engines) from which the engines must be selected, the time 
and location at which engines must be selected, and the procedure by 
which engines of the specified family must be selected. The test order 
may specify the configuration to be audited and/or the number of engines 
to be selected per day. Engine manufacturers are required to select a 
minimum of four engines per day unless an alternate selection procedure 
is approved pursuant to Sec. 89.507(a), or unless total production of 
the specified configuration is less than four engines per day. If total 
production of the specified configuration is less than four engines per 
day, the manufacturer selects the actual number of engines produced per 
day.
    (2) The test order may include alternate families to be selected for 
testing at the Administrator's discretion in the event that engines of 
the specified family are not available for testing because those engines 
are not being manufactured during the specified time or are not being 
stored at the specified assembly plant, associated storage facilities, 
or port of entry.
    (3) If the specified family is not being manufactured at a rate of 
at least two engines per day in the case of manufacturers specified in 
Sec. 89.508(g)(1), or one engine per day in the case of manufacturers 
specified in Sec. 89.508(g)(2), over the expected duration of the 
audit, the Assistant Administrator or her or his designated 
representative may select engines of the alternate family for testing.
    (4) In addition, the test order may include other directions or 
information essential to the administration of the required testing.
    (d) A manufacturer may submit a list of engine families and the 
corresponding assembly plants, associated storage facilities, or (in the 
case of imported engines) port facilities from which the manufacturer 
prefers to have engines selected for testing in response to a test 
order. In order that a manufacturer's preferred location be considered 
for inclusion in a test order for a particular engine family, the list 
must be submitted prior to issuance of the test order. Notwithstanding 
the fact that a manufacturer has submitted the list, the Administrator 
may order selection at other than a preferred location.
    (e) Upon receipt of a test order, a manufacturer must proceed in 
accordance with the provisions of this subpart.
    (f)(1) During a given model year, the Administrator may not issue to 
a manufacturer more Selective Enforcement Auditing (SEA) test orders 
than an annual limit determined to be the larger of the following 
factors:
    (i) Production factor, determined by dividing the projected nonroad 
engine sales in the United States for that model year, as declared by 
the manufacturer under Sec. 89.505(c)(1), by 16,000 and rounding to the 
nearest whole number. If the projected sales are less than 8,000, this 
factor is one.
    (ii) Family factor, determined by dividing the manufacturer's total 
number of certified engine families by five and rounding to the nearest 
whole number.
    (2) If a manufacturer submits to EPA in writing prior to or during 
the model year a reliable sales projection update or adds engine 
families or deletes engine families from its production, that 
information is used for recalculating

[[Page 132]]

the manufacturer's annual limit of SEA test orders.
    (3) Any SEA test order for which the family fails under Sec. 89.510 
or for which testing is not completed is not counted against the annual 
limit.
    (4) When the annual limit has been met, the Administrator may issue 
additional test orders to test those families for which evidence exists 
indicating noncompliance. An SEA test order issued on this basis 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 under Sec. 89.503 
that engines of a specified family be selected in a manner consistent 
with the requirements of Sec. 89.507 and submitted to the Administrator 
at the place designated for the purpose of conducting emission tests. 
These tests will be conducted in accordance with Sec. 89.508 to 
determine whether engines manufactured by the manufacturer conform with 
the regulations with respect to which the certificate of conformity was 
issued.
    (b) Designating official data. (1) Whenever the Administrator 
conducts a test on a test engine or the Administrator and manufacturer 
each conduct a test on the same test engine, the results of the 
Administrator's test comprise the official data for that 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 on testing 
conducted under paragraph (a) of this section that there is a 
substantial lack of agreement between the manufacturer's test results 
and the Administrator's test results, no manufacturer's test data from 
the manufacturer's test facility will be accepted for purposes of this 
subpart.
    (c) If testing conducted under Sec. 89.503 is unacceptable under 
paragraph (b)(2) of this section, the Administrator must:
    (1) Notify the manufacturer in writing of the Administrator's 
determination that the test facility is inappropriate for conducting the 
tests required by this subpart and the reasons therefor; and
    (2) Reinstate any manufacturer's data upon a showing by the 
manufacturer that the data acquired under Sec. 89.503 was erroneous and 
the manufacturer's data was correct.
    (d) The manufacturer may request in writing that the Administrator 
reconsider the determination in paragraph (b)(2) of this section based 
on data or information which indicates that changes have been made to 
the test facility and these changes have resolved the reasons for 
disqualification.

[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 of the 
provisions of this subpart must establish, maintain, and retain the 
following adequately organized and indexed records:
    (1) General records. A description of all equipment used to test 
engines in accordance with Sec. 89.508 pursuant to a test order issued 
under this subpart, specifically, the equipment requirements specified 
in Sec. Sec. 86.884-8 and 86.884-9 of this chapter and the equipment 
requirements specified in Sec. Sec. 89.306, 89.308, 89.309, and 89.312.
    (2) Individual records. These records pertain to each audit 
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 engine when 
the test began and ended;
    (iii) The names of all supervisory personnel involved in the conduct 
of the audit;
    (iv) A record and description of any repairs performed prior to and/
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 of 
the repair;
    (v) The date the engine was shipped from the assembly plant, 
associated storage facility or port facility, and date the engine was 
received at the testing facility;

[[Page 133]]

    (vi) A complete record of all emission tests performed pursuant to 
this subpart (except tests performed directly by EPA), including all 
individual worksheets and/or other documentation relating to each test, 
or exact copies thereof, to be in accordance with the record 
requirements specified in Sec. 89.404 or Sec. 86.884-10 of this 
chapter.
    (vii) A brief description of any significant audit events not 
described under paragraph (a)(2) of this section, commencing with the 
test engine selection process and including such extraordinary events as 
engine damage during shipment.
    (3) The manufacturer must record test equipment description, 
pursuant to paragraph (a)(1) of this section, for each test cell that 
can be used to perform emission testing under this subpart.
    (b) The manufacturer must retain all records required to be 
maintained under this subpart for a period of one year after completion 
of all testing in response to a test order. Records may be retained as 
hard copy or reduced to microfilm, floppy disc, and so forth, depending 
upon the manufacturer's record retention procedure; provided, that in 
every case, all the information contained in 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 engine configuration within each 
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 the request;
    (3) Number of engines, by configuration and by assembly plant, 
storage facility or port facility, scheduled to be stored at facilities 
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 are complete for 
introduction into commerce.
    (d) Nothing in this section limits the Administrator's discretion in 
requiring the manufacturer to retain additional records or submit 
information not specifically required by this section.
    (e) All reports, submissions, notifications, and requests for 
approvals made under this subpart are addressed to: Director, Engine 
Programs and Compliance Division (6405-J), U.S. Environmental Protection 
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57020, Oct. 23, 1998]



Sec. 89.506  Right of entry and access.

    (a) To allow the Administrator to determine whether a manufacturer 
is complying with the provisions of this subpart and a test order issued 
thereunder, EPA enforcement officers or EPA authorized representatives 
may enter during operating hours and upon presentation of 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 is 
manufactured, assembled, or stored;
    (2) Any facility where any tests conducted pursuant to a test order 
or any procedures or activities connected with these tests are or were 
performed;
    (3) Any facility where any engine which is being tested, was tested, 
or will be tested is present; and
    (4) Any facility where any record or other document relating to any 
of the above is located.
    (b) Upon admission to any facility referred to in paragraph (a) of 
this section, EPA enforcement officers or EPA authorized representatives 
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 in 
which these procedures are conducted;
    (2) To inspect and monitor any aspect of engine test procedures or 
activities, including, but not limited to, engine selection, 
preparation, service accumulation, emission test cycles, and maintenance 
and verification of test equipment calibration;
    (3) To inspect and make copies of any records or documents related 
to the assembly, storage, selection, and testing

[[Page 134]]

of an engine in compliance with a test order; and
    (4) To inspect and photograph any part or aspect of any engine and 
any component used in the assembly thereof that is reasonably related to 
the purpose of the entry.
    (c) EPA enforcement officers or EPA authorized representatives are 
authorized to obtain reasonable assistance without cost from those in 
charge of a facility to help the officers perform any function listed in 
this subpart and they are authorized to request the recipient of a test 
order to make arrangements with those in charge of a facility operated 
for the manufacturer's benefit to furnish reasonable assistance without 
cost to EPA whether or not the recipient controls the facility.
    (1) Reasonable assistance includes, but is not limited to, clerical, 
copying, interpretation and translation services; the making available 
on an EPA enforcement officer's or EPA authorized representative's 
request of personnel of the facility being inspected during their 
working hours to inform the EPA enforcement officer or EPA authorized 
representative of how the facility operates and to answer the officer's 
or representative's questions; and the performance 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 personal appearance 
of any employee at such a facility before an EPA enforcement officer or 
EPA authorized representative by written request for his appearance, 
signed by the Assistant Administrator for Air and Radiation, served on 
the manufacturer. Any such employee who has been instructed by the 
manufacturer to appear will be entitled to be accompanied, represented, 
and advised by counsel.
    (d) EPA enforcement officers or EPA authorized representatives are 
authorized to seek a warrant or court order authorizing the EPA 
enforcement officers or EPA authorized representatives to conduct 
activities 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 ex parte 
to obtain a warrant whether or not the EPA enforcement officers or EPA 
authorized representatives first attempted to seek permission of the 
recipient of the test order or the party in charge of the facilities in 
question to conduct activities related to entry and access as authorized 
in this section.
    (e) A recipient of a test order must permit an EPA enforcement 
officer(s) or EPA authorized representative(s) who presents a warrant or 
court order to conduct activities related to entry and access as 
authorized in this section and as described in the warrant or court 
order. The recipient must also cause those in charge of its facility or 
a facility operated for its benefit to permit entry and access as 
authorized in this section pursuant to a warrant or court order whether 
or not the recipient controls the facility. In the absence of a warrant 
or court order, an EPA enforcement officer(s) or EPA authorized 
representative(s) may conduct activities related to entry and access as 
authorized in this section only upon the consent of the recipient of the 
test order or the party in charge of the facilities in question.
    (f) It is not a violation of this part or the Clean Air Act for any 
person to refuse to permit an EPA enforcement officer(s) or EPA 
authorized representative(s) to conduct activities related to entry and 
access as authorized in this section if the officer(s) or 
representative(s) appears without a warrant or court order.
    (g) A manufacturer is responsible for locating its foreign testing 
and manufacturing facilities in jurisdictions where local law does not 
prohibit an EPA enforcement officer(s) or EPA authorized 
representative(s) from conducting the entry and access activities 
specified in this section. EPA will not attempt to make any inspections 
which it has been informed that local foreign law prohibits.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57020, Oct. 23, 1998]



Sec. 89.507  Sample selection.

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

[[Page 135]]

alternative selection procedure may be employed, provided the 
manufacturer requests approval of the alternative procedure prior to the 
start of test sample selection, and the Administrator approves the 
procedure.
    (b) The manufacturer must assemble the test engines of the family 
selected for testing using its normal mass production process for 
engines to be distributed into commerce. If, between the time the 
manufacturer is notified of a test order and the time the manufacturer 
finishes selecting test engines, the manufacturer implements any 
change(s) in its production processes, including quality control, which 
may reasonably be expected to affect the emissions of the engines 
selected, then the manufacturer must, during the audit, inform the 
Administrator of such changes. If the test engines are selected at a 
location where they do not have their operational and emission control 
systems installed, the test order will specify the manner and location 
for selection of components to complete assembly of the engines. The 
manufacturer must assemble these components onto the test engines using 
normal assembly and quality control procedures as documented by the 
manufacturer.
    (c) No quality control, testing, or assembly procedures will be used 
on the test engine or any portion thereof, including parts and 
subassemblies, that have not been or will not be used during the 
production and assembly of all other engines of that family, unless the 
Administrator approves the modification in assembly procedures 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, select the 
test engines according to the method specified in the test order.
    (e) The order in which test engines are selected determines the 
order in which test results are to be used in applying the sampling plan 
in accordance with Sec. 89.510.
    (f) The manufacturer must keep on hand all untested engines, if any, 
comprising the test sample until a pass or fail decision is reached in 
accordance with Sec. 89.510(e). The manufacturer may ship any tested 
engine which has not failed the requirements as set forth in Sec. 
89.510(b). However, once the manufacturer ships any test engine, it 
relinquishes the prerogative to conduct retests 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 this 
subpart, the prescribed test procedures are the nonroad engine 8-mode 
test procedure as described in subpart E of this part, the federal smoke 
test as described in part 86, subpart I of this chapter, and the 
particulate test procedure as adopted in the California Regulations for 
New 1996 and Later Heavy-Duty Off-Road Diesel Cycle Engines. This 
procedure is incorporated by reference. See Sec. 89.6.
    (2) The Administrator may, on the basis of a written application by 
a manufacturer, prescribe test procedures other than those specified in 
paragraph (a)(1) of this section for any nonroad engine he or she 
determines is not susceptible to satisfactory testing using the 
procedures specified in paragraph (a)(1) of this section.
    (b)(1) The manufacturer may not adjust, repair, prepare, or modify 
the engines selected for testing and may not perform any emission tests 
on engines selected for testing pursuant to the test order unless this 
adjustment, repair, preparation, modification, and/or tests are 
documented in the manufacturer's engine assembly and inspection 
procedures and are actually performed or unless these adjustments and/or 
tests are required or permitted under this subpart or are approved in 
advance by the Administrator.
    (2) The Administrator may adjust or cause to be adjusted any engine 
parameter which the Administrator has determined to be subject to 
adjustment for certification and Selective Enforcement Audit testing in 
accordance with Sec. 89.108, to any setting within the physically 
adjustable range of that parameter, as determined by the Administrator 
in accordance with Sec. 89.108, prior to the performance of any tests. 
However, if the idle speed parameter is one which the Administrator has 
determined to be subject to adjustment, the

[[Page 136]]

Administrator may not adjust it to any setting which causes a lower 
engine idle speed than would have been possible within the physically 
adjustable range of the idle speed parameter if the manufacturer had 
accumulated 125 hours of service on the engine under paragraph (c) of 
this section, all other parameters being identically adjusted for the 
purpose of the comparison. The manufacturer may be requested to supply 
information needed to establish an alternate minimum idle speed. The 
Administrator, in making or specifying these adjustments, may consider 
the effect of the deviation from the manufacturer's recommended setting 
on emission performance characteristics as well as the likelihood that 
similar settings will occur on in-use engines. In determining 
likelihood, the Administrator may consider factors such as, but not 
limited to, the effect of the adjustment on engine performance 
characteristics and surveillance information from similar in-use 
engines.
    (c) Service Accumulation. Prior to performing exhaust emission 
testing on an SEA test engine, the manufacturer may accumulate on each 
engine a number of hours of service equal to the greater of 125 hours or 
the number of hours the manufacturer accumulated during certification on 
the emission data engine corresponding to the family specified in the 
test order.
    (1) Service accumulation must be performed in a manner using good 
engineering judgment to obtain emission results representative of normal 
production engines. This service accumulation must be consistent with 
the new engine break-in instructions contained in the applicable owner's 
manual.
    (2) The manufacturer must accumulate service at a minimum rate of 16 
hours per engine during each 24-hour period, unless otherwise approved 
by the Administrator.
    (i) The first 24-hour period for service begins as soon as 
authorized checks, inspections, and preparations are completed on each 
engine.
    (ii) The minimum service or mileage accumulation rate does not apply 
on weekends or holidays.
    (iii) If the manufacturer's service or target is less than the 
minimum rate specified (16 hours per day), then the minimum daily 
accumulation rate is equal to the manufacturer's service target.
    (3) Service accumulation must be completed on a sufficient number of 
test engines during consecutive 24-hour periods to assure that the 
number of engines tested per day fulfills the requirements of paragraphs 
(g)(1) and (g)(2) of this section.
    (d) The manufacturer may not perform any maintenance on test engines 
after selection for testing, nor may the Administrator allow deletion of 
any engine from the test sequence, unless requested by the manufacturer 
and approved by the Administrator before any engine maintenance or 
deletion.
    (e) The manufacturer must expeditiously ship test engines from the 
point of selection to the test facility. If the test facility is not 
located at or in close proximity to the point of selection, the 
manufacturer must assure that test engines arrive at the test facility 
within 24 hours of selection. The Administrator may approve more time 
for shipment based upon a request by the manufacturer accompanied by a 
satisfactory justification.
    (f) If an engine cannot complete the service accumulation or an 
emission test because of a malfunction, the manufacturer may request 
that the Administrator authorize either the repair of that engine or its 
deletion from the test sequence.
    (g) Whenever a manufacturer conducts testing pursuant to a test 
order issued under this subpart, the manufacturer must notify the 
Administrator within one working day of receipt of the test order as to 
which test facility will be used to comply with the test order. If no 
test cells are available at a desired facility, the manufacturer must 
provide alternate testing capability satisfactory to the Administrator.
    (1) A manufacturer with projected nonroad engine sales for the 
United States market for the applicable year of 7,500 or greater must 
complete emission testing at a minimum rate of two engines per 24-hour 
period, including each voided test and each smoke test.
    (2) A manufacturer with projected nonroad engine sales for the 
United States market for the applicable year

[[Page 137]]

of less than 7,500 must 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 emission 
testing based upon a request by a manufacturer accompanied by a 
satisfactory justification.
    (h) The manufacturer must perform test engine selection, shipping, 
preparation, service accumulation, and testing in such a manner as to 
assure that the audit is performed in an expeditious manner.
    (i) Retesting. (1) The manufacturer may retest any engines tested 
during a Selective Enforcement Audit once a fail decision for the audit 
has been reached in accordance with Sec. 89.510(e).
    (2) The Administrator may approve retesting at other times based 
upon a request by the manufacturer accompanied by a satisfactory 
justification.
    (3) The manufacturer may retest each engine a total of three times. 
The manufacturer must test each engine or vehicle the same number of 
times. The manufacturer may accumulate additional service before 
conducting a retest, subject to the provisions of paragraph (c) of this 
section.
    (j) A manufacturer must test engines with the test procedure 
specified in subpart E of this part to demonstrate compliance with the 
exhaust emission standard (or applicable FEL) for oxides of nitrogen. If 
alternate procedures were used in certification pursuant to Sec. 
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 applicable 
test procedure specified in Sec. 89.508(a). The manufacturer rounds 
these results, in accordance with ASTM E29-93a, to the number of decimal 
places contained in the applicable emission standard expressed to one 
additional significant figure. This procedure has been incorporated by 
reference. See Sec. 89.6.
    (b) Final test results are calculated by summing the initial test 
results derived in paragraph (a) of this section for each test engine, 
dividing by the number of tests conducted on the engine, and rounding in 
accordance with the procedure specified in paragraph (a) of this section 
to the same number of decimal places contained in the applicable 
standard expressed to one additional significant figure.
    (c) Within five working days after completion of testing of all 
engines pursuant to a test order, the manufacturer must submit to the 
Administrator a report which includes the following information:
    (1) The location and description of the manufacturer's exhaust 
emission test facilities which were utilized to conduct testing reported 
pursuant to this section;
    (2) The applicable standards and/or FEL against which the 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 to 
testing;
    (ii) Location where service accumulation was conducted and 
description of accumulation procedure and schedule;
    (iii) Test number, date, test procedure used, initial test results 
before and after rounding, and final test results for all exhaust 
emission tests, whether valid or invalid, and the reason for 
invalidation, if applicable;
    (iv) A complete description of any modification, repair, 
preparation, maintenance, and/or testing which was performed on the test 
engine and has not been reported pursuant to any other paragraph of this 
subpart and will not be performed on all other production engines;
    (v) Where an engine was deleted from the test sequence by 
authorization of the Administrator, the reason for the deletion;
    (vi) Any other information the Administrator may request relevant to 
the determination as to whether the new engines being manufactured by 
the

[[Page 138]]

manufacturer do in fact conform with the regulations with respect 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 the 
Clean Air Act. This Selective Enforcement Audit was conducted in 
complete conformance with all applicable regulations under 40 CFR part 
89 et seq. and the conditions of the test order. No emission-related 
changes to production processes or quality control procedures for the 
engine family tested have been made between receipt of the test order 
and conclusion of the audit. All data and information reported herein 
is, to the best of (Company Name) knowledge, true and accurate. I am 
aware of the penalties associated with violations of the Clean Air Act 
and the regulations thereunder. (Authorized Company Representative.)

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57020, Oct. 23, 1998]



Sec. 89.510  Compliance with acceptable quality level and passing and failing 

criteria for selective enforcement audits.

    (a) The prescribed acceptable quality level is 40 percent.
    (b) A failed engine is one whose final test results pursuant to 
Sec. 89.509(b), for one or more of the applicable pollutants, exceed 
the applicable emission standard or family emission level.
    (c) The manufacturer must test engines comprising the test sample 
until a pass decision is reached for all pollutants or a fail decision 
is reached for one pollutant. A pass decision is reached when the 
cumulative number of failed engines, as defined in paragraph (b) of this 
section, for each pollutant is less than or equal to the pass decision 
number, as defined in paragraph (d) of this section, appropriate to the 
cumulative number of engines tested. A fail decision is reached when the 
cumulative number of failed engines for one or more pollutants is 
greater than or equal to the fail decision number, as defined in 
paragraph (d) of this section, appropriate to the cumulative number of 
engines tested.
    (d) The pass and fail decision numbers associated with the 
cumulative number of engines tested are determined by using the tables 
in appendix A to this subpart, ``Sampling Plans for Selective 
Enforcement Auditing of Nonroad Engines,'' appropriate to the projected 
sales as made by the manufacturer in its report to EPA under Sec. 
89.505(c)(1). In the tables in appendix A to this subpart, sampling plan 
``stage'' refers to the cumulative number of engines tested. Once a pass 
or fail decision has been made for a particular pollutant, the number of 
engines with final test results exceeding the emission standard for that 
pollutant shall not be considered any further for the purposes of the 
audit.
    (e) Passing or failing of an SEA occurs when the decision is made on 
the last engine required to make a decision under paragraph (c) of this 
section.
    (f) The Administrator may terminate testing earlier than required in 
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 any 
engine failing pursuant to paragraph (b) of Sec. 89.510 effective from 
the time that testing of that engine is completed.
    (b) The Administrator may suspend the certificate of conformity for 
a family which does not pass an SEA, pursuant to paragraph Sec. 
89.510(c), based on the first test or all tests conducted on each 
engine. This suspension will not occur before ten days after failure of 
the audit, unless the manufacturer requests an earlier suspension.
    (c) If the results of testing pursuant to these regulations indicate 
that engines of a particular family produced at one plant of a 
manufacturer do not conform to the regulations with respect to which the 
certificate of conformity was issued, the Administrator may suspend the 
certificate of conformity with respect to that family for engines 
manufactured by the manufacturer at all other plants.
    (d) Notwithstanding the fact that engines described in the 
application may be covered by a certificate of conformity, the 
Administrator may suspend such certificate immediately in whole or in 
part if the Administrator finds any one of the following infractions to 
be substantial:

[[Page 139]]

    (1) The manufacturer refuses to comply with the provisions of a test 
order issued by the Administrator under Sec. 89.503.
    (2) The manufacturer refuses to comply with any of the requirements 
of this subpart.
    (3) The manufacturer submits false or incomplete information in any 
report or information provided to the Administrator under this subpart.
    (4) The manufacturer renders inaccurate any test data submitted 
under this subpart.
    (5) An EPA enforcement officer(s) or EPA authorized 
representative(s) is denied the opportunity to conduct activities 
related to entry and access as authorized in this subpart and a warrant 
or court order is presented to the manufacturer or the party in charge 
of a facility in question.
    (6) An EPA enforcement officer(s) or EPA authorized 
representative(s) is unable to conduct activities related to entry and 
access as authorized in Sec. 89.506 because a manufacturer has located 
a facility in a foreign jurisdiction where local law prohibits those 
activities.
    (e) The Administrator must notify the manufacturer in writing of any 
suspension or revocation of a certificate of conformity in whole or in 
part; a suspension or revocation is effective upon receipt of the 
notification or ten days, except that the certificate is immediately 
suspended with respect to any failed engines as provided for in 
paragraph (a) of this section.
    (f) The Administrator may revoke a certificate of conformity for a 
family when the certificate has been suspended pursuant to paragraph (b) 
or (c) of this section if the proposed remedy for the nonconformity, as 
reported by the manufacturer to the Administrator, is one requiring a 
design change or changes to the engine and/or emission control system as 
described in the application for certification of the affected family.
    (g) Once a certificate has been suspended for a failed engine, as 
provided for in paragraph (a) of this section, the manufacturer must 
take the following actions before the certificate is reinstated for that 
failed engine:
    (1) Remedy the nonconformity.
    (2) Demonstrate that the engine conforms to applicable standards or 
family emission levels by retesting the engine in accordance with these 
regulations.
    (3) Submit a written report to the Administrator, after successful 
completion of testing on the failed engine, which contains a description 
of the remedy and test results for each engine in addition to other 
information that may be required by this part.
    (h) Once a certificate for a failed family has been suspended 
pursuant to paragraph (b) or (c) of this section, the manufacturer must 
take the following actions before the Administrator will consider 
reinstating the certificate:
    (1) Submit a written report to the Administrator which identifies 
the reason for the noncompliance of the engines, describes the proposed 
remedy, including a description of any proposed quality control and/or 
quality assurance measures to be taken by the manufacturer to prevent 
future occurrences of the problem, and states the date on which the 
remedies will be implemented.
    (2) Demonstrate that the engine family for which the certificate of 
conformity has been suspended does in fact comply with these regulations 
by testing engines selected from normal production runs of that engine 
family, at the plant(s), port facility(ies) or associated storage 
facility(ies) specified by the Administrator, in accordance with the 
conditions specified in the initial test order. If the manufacturer 
elects to continue testing individual engines after suspension of a 
certificate, the certificate is reinstated for an engine actually 
determined to be in conformance with the applicable standards or family 
emission levels through testing in accordance with the applicable test 
procedures, provided that the Administrator has not revoked the 
certificate pursuant to paragraph (f) of this section.
    (i) Once the certificate for a family has been revoked under 
paragraph (f) of this section and the manufacturer desires to continue 
introduction into commerce of a modified version of that family, the 
following actions must be taken before the Administrator may consider 
issuing a certificate for that modified family:

[[Page 140]]

    (1) If the Administrator determines that the proposed change(s) in 
engine design may have an effect on emission performance deterioration, 
the Administrator will notify the manufacturer, within five working days 
after receipt of the report in paragraph (g) of this section, whether 
subsequent testing under this subpart is sufficient to evaluate the 
proposed change or changes or whether additional testing is required; 
and
    (2) After implementing the change or changes intended to remedy the 
nonconformity, the manufacturer must demonstrate that the modified 
engine family does in fact conform with these regulations by testing 
engines selected from normal production runs of that modified engine 
family in accordance with the conditions specified in the initial test 
order. If the subsequent audit results in passing of the audit, the 
Administrator will reissue the certificate or issue a new certificate, 
as the case may be, to include that family, provided that the 
manufacturer has satisfied the testing requirements of paragraph (i)(1) 
of this section. If the subsequent audit is failed, the revocation 
remains in effect. Any design change approvals under this subpart are 
limited to the family affected by the test order.
    (j) At any time subsequent to an initial suspension of a certificate 
of conformity for a test engine pursuant to paragraph (a) of this 
section, but not later than 15 days (or such other period as may be 
allowed by the Administrator) after notification of the Administrator's 
decision to suspend or revoke a certificate of conformity in whole or in 
part pursuant to paragraph (b), (c), or (f) of this section, a 
manufacturer may request a hearing as to whether the tests have been 
properly conducted or any sampling methods have been 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 an opportunity 
for a hearing conducted in accordance with Sec. Sec. 89.512, 89.513, 
and 89.514 and
    (2) need not apply to engines no longer in the hands of the 
manufacturer.
    (l) After the Administrator suspends or revokes a certificate of 
conformity pursuant to this section and prior to the commencement of a 
hearing under Sec. 89.512, if the manufacturer demonstrates to 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 engines when 
conducting an audit of a family subsequent to a failure of an SEA and 
while reauditing of the failed family, it may request that the 
Administrator conditionally reinstate the certificate for that family. 
The Administrator may reinstate the certificate subject to the condition 
that the manufacturer consents to recall all engines of that family 
produced from the time the certificate is conditionally reinstated if 
the family fails the subsequent audit at the level of the standard and 
to remedy any nonconformity at no expense to the owner.

[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's decision 
under Sec. 89.511 (b), (c), (d), or (f) to suspend or revoke a 
certificate or disputes the basis for an automatic suspension pursuant 
to Sec. 89.511 (a), the manufacturer may request a public hearing.
    (b) The manufacturer's request must be filed with the Administrator 
not later than 15 days after the Administrator's notification of the 
decision to suspend or revoke, unless otherwise specified by the 
Administrator. The manufacturer must simultaneously serve two copies of 
this request upon the Director of the Engine Programs and Compliance 
Division and file two copies with the Hearing Clerk of the Agency. 
Failure of the manufacturer to request a hearing within the time 
provided constitutes a waiver of the right to a hearing. Subsequent to 
the expiration of the period for requesting a hearing as of right, the 
Administrator may, at her or his discretion and for good cause shown, 
grant the manufacturer a

[[Page 141]]

hearing to contest 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 a family 
is to be the subject of the hearing;
    (2) A concise statement of the issues to be raised by the 
manufacturer at the hearing, except that in the case of the hearing 
requested under Sec. 89.511(j), the hearing is restricted to the 
following issues:
    (i) Whether tests have been properly conducted, specifically, 
whether the tests were conducted in accordance with applicable 
regulations under this part and whether test equipment was properly 
calibrated and functioning;
    (ii) Whether sampling plans have been properly applied, 
specifically, whether sampling procedures specified in appendix A of 
this subpart were followed and whether there exists a basis for 
distinguishing engines produced at plants other than the one from which 
engines were selected for testing which would invalidate the 
Administrator's decision under Sec. 89.511(c);
    (3) A statement specifying reasons why the manufacturer believes it 
will prevail on the merits of each of the issues raised; and
    (4) A summary of the evidence which supports the manufacturer's 
position on each of the issues raised.
    (d) A copy of all requests for public hearings will be kept on file 
in the Office of the Hearing Clerk and will be made available to the 
public during Agency business hours.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57020, Oct. 23, 1998]



Sec. 89.513  Administrative procedures for public hearing.

    (a) The Presiding Officer is an Administrative Law Judge appointed 
pursuant 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 Agency 
appointed as a Judicial Officer by the Administrator, pursuant to this 
section, who meets the qualifications and performs functions as follows:
    (1) Qualifications. A Judicial Officer may be a permanent or 
temporary employee of the Agency who performs other duties for the 
Agency. The Judicial Officer may not be employed by the Office of 
Enforcement or have any connection with the preparation or presentation 
of evidence for a hearing held pursuant to this subpart. The Judicial 
Officer must be a graduate of an accredited law school and a member in 
good standing of a recognized Bar Association of any state or the 
District of Columbia.
    (2) Functions. The Administrator may consult with the Judicial 
Officer or delegate all or part of the Administrator's authority to act 
in a given case under this section to a Judicial Officer, provided that 
this delegation does not preclude the Judicial Officer from referring 
any motion or case to the Administrator when the Judicial Officer 
determines such referral to be appropriate.
    (c) For the purposes of this section, one or more Judicial Officers 
may be designated. As work requires, a Judicial Officer may be 
designated to act for the purposes of a particular case.
    (d) Summary decision. (1) In the case of a hearing requested under 
Sec. 89.511(j), when it clearly appears from the data and other 
information contained in the request for a hearing that no genuine and 
substantial question of fact or law exists with respect to the issues 
specified in Sec. 89.512(c)(2), the Administrator may enter an order 
denying the request for a hearing and reaffirming the original decision 
to suspend or revoke a certificate of conformity.
    (2) In the case of a hearing requested under Sec. 89.512 to 
challenge a suspension of a certificate of conformity for the reasons 
specified in Sec. 89.511(d), when it clearly appears from the data and 
other information contained in the request for the hearing that no 
genuine and substantial question of fact or law exists with respect to 
the issue of whether the refusal to comply with the provisions of a test 
order or any other requirement of Sec. 89.503 was caused by conditions 
and circumstances outside the control of the manufacturer, the 
Administrator may enter an order denying the request for a hearing and 
suspending the certificate of conformity.
    (3) Any order issued under paragraph (d)(1) or (d)(2) of this 
section has the

[[Page 142]]

force and effect of a final decision of the Administrator, as issued 
pursuant to Sec. 89.515.
    (4) If the Administrator determines that a genuine and substantial 
question of fact or law does exist with respect to any of the issues 
referred to in paragraphs (d)(1) and (d)(2) of this section, the 
Administrator will grant the request for a hearing and publish a notice 
of public hearing in the Federal Register or by such other means as the 
Administrator finds appropriate to provide notice to the public.
    (e) Filing and service. (1) An original and two copies of all 
documents or papers required or permitted to be filed pursuant to this 
section and Sec. 89.512(c) must be filed with the Hearing Clerk of the 
Agency. Filing is considered timely if mailed, as determined by the 
postmark, to the Hearing Clerk within the time allowed by this section 
and Sec. 89.512(b). If filing is to be accomplished by mailing, the 
documents must be sent to the address set 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 in 
written form. Copies of written testimony will be served upon all 
parties as soon as practicable prior to the start of the hearing. A 
certificate of service will be provided on or accompany each document or 
paper filed with the Hearing Clerk. Documents to be served upon the 
Director of the Engine Programs and Compliance Division must be sent by 
registered mail to: Director, Engine Programs and Compliance Division 
(6405-J), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., 
NW., Washington, DC 20460. Service by registered mail is complete upon 
mailing.
    (f) Computation of time. (1) In computing any period of time 
prescribed or allowed by this section, except as otherwise provided, the 
day of the act or event from which the designated period of time begins 
to run is not included. Saturdays, Sundays, and federal legal holidays 
are included in computing the period allowed for the filing of any 
document or paper, except that when the period expires on a Saturday, 
Sunday, or federal legal holiday, the period is extended to include the 
next following business day.
    (2) A prescribed period of time within which a party is required or 
permitted to do an act is computed from the time of service, except that 
when service is accomplished by mail, three days will be added to the 
prescribed period.
    (g) Consolidation. The Administrator or the Presiding Officer in his 
discretion may consolidate two or more proceedings to be held under this 
section for the purpose of resolving one or more issues whenever it 
appears that consolidation will expedite or simplify consideration of 
these issues. Consolidation does not affect the right of any party to 
raise issues that could have been raised if consolidation had not 
occurred.
    (h) Hearing date. To the extent possible hearings under Sec. 89.512 
will be scheduled to commence within 14 days of receipt of the 
application in Sec. 89.512.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
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 to Sec. 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 as 
described 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 of Part 89--Sampling Plans for Selective 
                 Enforcement Auditing of Nonroad Engines

                   Table 1--Sampling Plan Code Letter
------------------------------------------------------------------------
                                                                   Code
                   Annual engine 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 sampling plan for code
  letter ``AA'' or sampling plan for code letter ``A'' for Selective
  Enforcement Audits of engine families with annual sales between 20 and
  50 engines. Additionally, the manufacturer may switch between these
  plans during the audit.


              Table 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                        Pass No.     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                        Pass No.     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 Code Letter ``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                        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            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, July 13, 2005]



         Subpart G_Importation of Nonconforming Nonroad Engines



Sec. 89.601  Applicability.

    (a) Except where otherwise indicated, this subpart is applicable to 
nonroad engines for which the Administrator has promulgated regulations 
under this part prescribing emission standards

[[Page 145]]

and nonroad vehicles and equipment containing such nonroad engines that 
are offered for importation or imported into the United States, but 
which engines, at the time of conditional importation, are not covered 
by certificates of conformity issued under section 213 and section 
206(a) of the Clean Air Act as amended (that is, which are nonconforming 
nonroad engines as defined in Sec. 89.602), and this part. Compliance 
with regulations under this subpart does not relieve any person or 
entity from compliance with other applicable provisions of the Clean Air 
Act.
    (b) Regulations prescribing further procedures for the importation 
of nonroad engines and nonroad vehicles and equipment into the customs 
territory of the United States, as defined in 19 U.S.C. 1202, are set 
forth in U.S. Bureau of Customs regulations.
    (c) For the purposes of this subpart, the term ``nonroad engine'' 
includes all nonroad engines incorporated into nonroad equipment or 
nonroad vehicles at the time they are imported or offered for import 
into the United States.
    (d) Importers must complete the appropriate EPA declaration form 
before importing an engine. These forms are available on the Internet at 
http://www.epa.gov/OTAQ/imports/ or by phone at 734-214-4100. Importers 
must keep the forms for five years 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 the Administrator 
under section 213 and section 206(a) of the Act.
    Currently valid certificate of conformity. A certificate of 
conformity for which the current date is within the effective period as 
specified on the certificate of conformity, and which has not been 
withdrawn, superseded, voided, suspended, revoked, or otherwise rendered 
invalid.
    Fifteen working day hold period. The period of time between a 
request for final admission and the automatic granting of final 
admission (unless EPA intervenes) for a nonconforming nonroad engine 
conditionally imported pursuant to Sec. 89.605 or Sec. 89.609. Day one 
of the hold period is the first working day (see definition for 
``working day'' in this section) after the Engine Programs and 
Compliance Division of EPA receives a complete and valid application for 
final admission.
    Independent commercial importer (ICI). An importer who is not an 
original engine manufacturer (OEM) (see definition below), but is the 
entity in whose name a certificate of conformity for a class of nonroad 
engines has been issued.
    Model year for imported engines. The manufacturer's annual 
production period (as determined by the Administrator) which includes 
January 1 of the calendar year; provided, that if the manufacturer has 
no annual production period, the term ``model year'' means the calendar 
year in which a nonroad engine is modified. An independent commercial 
importer (ICI) is deemed to have produced a nonroad engine when the ICI 
has modified (including labeling) the nonconforming nonroad engine to 
meet applicable emission requirements.
    Nonconforming nonroad engine. A nonroad engine which is not covered 
by a certificate of conformity prior to final or conditional admission 
(or for which such coverage has not been adequately demonstrated to EPA) 
and which has not been finally admitted into the United States under the 
provisions of Sec. 89.605 or Sec. 89.609.
    Original engine manufacturer (OEM). The entity which originally 
manufactured the nonroad engine.
    Original production (OP) year. The calendar year in which the 
nonroad engine was originally produced by the OEM.
    Original production (OP) years old. The age of a nonroad engine as 
determined by subtracting the original production year of the nonroad 
engine from the calendar year of importation.
    Production changes. Those changes in nonroad engine configuration, 
equipment, or calibration which are made by an OEM or ICI in the course 
of nonroad engine production and required to be reported under Sec. 
89.123.

[[Page 146]]

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

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57021, Oct. 23, 1998]



Sec. 89.603  General requirements for importation of nonconforming nonroad 

engines.

    (a) A nonconforming nonroad engine offered for importation into the 
United States is to be imported only by an Independent Commercial 
Importer (ICI) who is a holder of a currently valid certificate of 
conformity unless an exemption or exclusion is granted by the 
Administrator under Sec. 89.611 of this subpart. For a nonroad engine 
imported pursuant to Sec. 89.605, the ICI must hold a currently valid 
certificate of conformity for that specific nonroad engine model.
    (b) Any nonroad engine imported into the United States must have a 
legible unique engine identification number permanently affixed to or 
engraved on the engine.
    (c) Final admission may not be granted unless:
    (1) The nonroad engine is covered by a certificate of conformity 
issued under subpart B of this part in the name of the ICI and the ICI 
has complied with all requirements of Sec. 89.605; or
    (2) The nonroad engine is modified and emission tested in accordance 
with the provisions of Sec. 89.609 and the ICI has complied with all 
other requirements of Sec. 89.609; or
    (3) The nonroad engine is exempted or excluded under Sec. 89.611.
    (d) The ICI must submit to the Engine Programs and Compliance 
Division of EPA a copy of all approved applications for certification 
used to obtain certificates of conformity for the purpose of importing 
nonconforming nonroad engines pursuant to Sec. 89.605 or Sec. 89.609. 
In addition, the ICI must submit to the Engine Programs and Compliance 
Division a copy of all approved production changes implemented pursuant 
to Sec. 89.605 or subpart B of this part. Documentation submitted 
pursuant to this paragraph (d) must be provided to the Engine Programs 
and Compliance Division within 10 working days of approval of the 
certification application (or production change) by EPA.
    (e)(1) The applicable emission standards for engines imported by an 
ICI under this subpart are the emission standards applicable to the 
Original Production (OP) year of the engine.
    (2) Where engine manufacturers have choices in emission standards 
for one or more pollutants in a given model year, the standard that 
applies to the ICI is the least stringent standard for that pollutant 
applicable to the OP year for the appropriate power category.
    (3) ICIs may not generate, use or trade emission credits or 
otherwise participate in any way in the averaging, banking and trading 
program.
    (4) An ICI may import no more than a total of five engines under 
this part for any given model year, except as allowed by paragraph 
(e)(5) of this section. For ICIs owned by a parent company, the 
importation limit includes importation by the parent company and all its 
subsidiaries.
    (5) An ICI may exceed the limit outlined in paragraph (e)(4) of this 
section, provided that any engines in excess of the limit meet the 
emission standards and other requirements outlined in the applicable 
provisions of Part 89 or 1039 of this chapter for the model year in 
which the engine is modified (instead

[[Page 147]]

of the emission standards and other requirements applicable for the OP 
year of the vehicle/engine).

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57021, Oct. 23, 1998; 70 FR 40446, July 13, 2005]



Sec. 89.604  Conditional admission.

    (a) A nonroad engine offered for importation under Sec. 89.605 or 
Sec. 89.609 may be conditionally admitted into the United States. These 
engines are refused final admission, unless at the time of conditional 
admission the importer has submitted to the Administrator a written 
report that the subject nonroad engine has been permitted conditional 
admission pending EPA approval of its application for final admission 
under Sec. 89.605 or Sec. 89.609. This written report is to contain 
the following:
    (1) Identification of the importer of the nonroad engine and the 
importer's address, telephone number, and taxpayer identification 
number;
    (2) Identification of the nonroad engine owner, the owner's address, 
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 these regulations 
the nonroad engine is to be imported;
    (5) Identification of the place where the subject nonroad engine is 
to be stored until EPA approval of the importer's application to the 
Administrator for final admission;
    (6) Authorization for EPA enforcement officers to conduct 
inspections or testing otherwise permitted by the Act or regulations 
thereunder;
    (7) Identification of the Independent Commercial Importer's (ICI) 
certificate of conformity that permits the ICI to import that nonroad 
engine (for importation under Sec. 89.605 or Sec. 89.609); and
    (8) Such other information as is deemed necessary by the 
Administrator.
    (b) EPA will not require a U.S. Customs Service bond for a 
nonconforming nonroad engine which is imported under Sec. 89.605 or 
Sec. 89.609. The period of conditional admission may not exceed 120 
days. Nonroad engines imported under Sec. 89.605 or Sec. 89.609 may 
not be operated during the period of conditional admission except for 
that operation necessary to comply with the requirements of this 
subpart. During the period of conditional admission applicable to Sec. 
89.605 or Sec. 89.609, the importer must store the nonroad engine at a 
location where the Administrator has reasonable access to the nonroad 
engine for inspection.
    (c) During the period of conditional admission under Sec. 89.605 or 
Sec. 89.609, an ICI may transfer responsibility of a nonroad engine to 
another qualified ICI for the purposes of complying with this subpart.
    (1) The transferee ICI must be a holder of a currently valid 
certificate of conformity for the specific nonroad engine being 
transferred or be authorized to import the nonroad engine pursuant to 
Sec. 89.609 as of the transfer date. The transferee ICI must comply 
with all the requirements of Sec. 89.603, Sec. 89.604, and either 
Sec. 89.605 or Sec. 89.609, as applicable.
    (2) For the purpose of this subpart, the transferee ICI has 
``imported'' the nonroad engine as of the transfer date as designated in 
a written record that is signed by both ICIs.
    (3) The ICI that originally imported the nonroad engine is 
responsible for all requirements of this subpart from the actual date of 
importation until the date of transfer as designated in the written 
record. The transferee ICI is responsible for all requirements of this 
subpart beginning on the date of transfer.
    (4) A copy of the written record is to be submitted to the Engine 
Programs and Compliance Division of EPA within five working days of the 
transfer date.
    (d) Notwithstanding any other requirement of this subpart or U.S. 
Customs Service regulations, an ICI may also assume responsibility for 
the modification and testing of a nonconforming nonroad engine which was 
previously imported by another party. The ICI must be a holder of a 
currently valid certificate of conformity for that specific nonroad 
engine or authorized to import it pursuant to Sec. 89.609 at the time 
of assuming such responsibility.

[[Page 148]]

The ICI must comply with all the requirements of Sec. 89.603, Sec. 
89.604, and either Sec. 89.605 or Sec. 89.609, as applicable. For the 
purposes of this subpart, the ICI has ``imported'' the nonroad engine as 
of the date the ICI assumes responsibility for the modification and 
testing of the nonroad engine. The ICI must submit written notification 
to the Engine Programs and Compliance Division of EPA within 10 working 
days of the assumption of that responsibility.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57021, Oct. 23, 1998]



Sec. 89.605  Final admission of certified nonroad engines.

    (a) A nonroad engine may be finally admitted into the United States 
upon approval of the ICI's application to the Administrator. The 
application is made by completing EPA forms in accordance with EPA 
instructions. The application contains:
    (1) The information required in Sec. 89.604(a);
    (2) Information demonstrating that the nonroad engine has been 
modified 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 in 
accordance with the provisions of the ICI's certificate of conformity; 
presents to EPA a statement written by the applicable Original Engine 
Manufacturer that the Original Engine Manufacturer must provide to the 
ICI, and to EPA, information concerning production changes to the class 
of nonroad engines described in the ICI's application for certification; 
delivers to the Engine Programs and Compliance Division of EPA 
notification by the ICI of any production changes already implemented by 
the Original Engine Manufacturer at the time of application and their 
effect on emissions; and obtains from EPA written approval to use this 
demonstration option; or
    (ii) The ICI attests that the nonroad engine has been modified in 
accordance 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 engine 
imported under that certificate of conformity to demonstrate compliance 
with Federal emission requirements. The test is to be conducted at a 
laboratory located within the United States. Sequencing of the tests is 
determined by the date of importation of each nonroad engine beginning 
with the prototype nonroad engine used to obtain the applicable 
certificate of conformity. Should the ICI exceed a threshold of 300 
nonroad engines imported under the certificate of conformity without 
adjustments or other changes in accordance with paragraph (a)(3) of this 
section, the amount of required testing is reduced to every fifth 
nonroad engine.
    (3) The results of every emission test which the ICI conducted on 
the nonroad engine pursuant to paragraph (a)(2)(ii) of this section. 
Should a subject nonroad engine fail an emission test at any time, the 
following procedures are applicable:
    (i) The ICI may either:
    (A) Conduct one retest that involves no adjustment of the nonroad 
engine from the previous test (for example, adjusting the RPM, timing, 
air-to-fuel ratio, and so forth) other than adjustments to adjustable 
parameters that, upon inspection, were found to be out of tolerance. 
When such an allowable adjustment is made, the parameter may be reset 
only to the specified (that is, nominal) value (and not any other value 
within the tolerance band); or
    (B) Initiate a change in production (production change) under the 
provisions of subpart B of this part that causes the nonroad engine to 
meet 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 working days 
subsequent to the first emission test;
    (B) Should the subject nonroad engine fail the second emission test, 
then the ICI must initiate a change in production (a production change) 
under the provisions of subpart B of this part that causes the nonroad 
engine to meet federal emission requirements.
    (iii) If the ICI chooses to initiate a change in production (a 
production change) under the provisions of subpart B of this part that 
causes the nonroad

[[Page 149]]

engine to meet federal requirements, a change involving adjustments of 
adjustable nonroad engine parameters (for example, adjusting the RPM, 
timing, air/fuel ratio) represents a change in the specified (that is, 
nominal) value to be deemed acceptable by EPA.
    (iv) A production change made in accordance with this section is to 
be implemented on all subsequent nonroad engines imported under the 
certificate of conformity after the date of importation of the nonroad 
engine which gave rise to the production change.
    (v) Commencing with the first nonroad engine receiving the 
production change, every third nonroad engine imported under the 
certificate of conformity is to be emission tested to demonstrate 
compliance with federal emission requirements until, as in paragraph 
(a)(2)(ii) of this section, a threshold of 300 nonroad engines imported 
under the certificate of conformity is exceeded without adjustments or 
other changes in accordance with paragraph (a)(3)(i)(A) of this section, 
at which time the amount of required emission testing is reduced to 
every fifth nonroad engine.
    (vi) A report concerning these production changes is to be made to 
the Engine Programs and Compliance Division of EPA within ten working 
days of initiation of the production change. The cause of any failure of 
an emission test is to be identified, if known;
    (4) The applicable deterioration factor, if any;
    (5) The emission test results adjusted by the deterioration factor;
    (6) Other information that may be specified by applicable 
regulations or on the certificate of conformity under which the nonroad 
engine has been modified in order to assure compliance with requirements 
of the Act;
    (7) All information required under Sec. 89.610 related to 
maintenance, warranties, and labeling;
    (8) An attestation by the ICI that the ICI is responsible for the 
nonroad engine's compliance with federal emission requirements, 
regardless of whether the ICI owns the nonroad engine imported under 
this section;
    (9) The name, address, and telephone number of the person who the 
ICI prefers to receive EPA notification under Sec. 89.605(c);
    (10) An attestation by the ICI that all requirements of Sec. 89.607 
and Sec. 89.610 have been met; and
    (11) Other information as is deemed necessary by the Administrator.
    (b) EPA approval for final admission of a nonroad engine under this 
section is to be presumed not to have been granted if a requirement of 
this subpart has not been met. This includes, but is not limited to, 
properly modifying the nonroad engine to be in conformity in all 
material respects with the description in the application for 
certification or not complying with the provisions of Sec. 89.605(a)(2) 
or if the final emission test results, adjusted by the deterioration 
factor, if applicable, do not comply with applicable emission standards.
    (c) Except as provided in paragraph (b) of this section, EPA 
approval for final admission of a nonroad engine under this section is 
presumed to have been granted if the ICI does not receive oral or 
written notice from EPA to the contrary within 15 working days of the 
date that the Engine Programs and Compliance Division of EPA receives 
the ICI's application under paragraph (a) of this section. EPA notice of 
nonapproval may be made to any employee of the ICI. It is the 
responsibility of the ICI to ensure that the Engine Programs and 
Compliance Division of EPA receives the application and to confirm the 
date of receipt. During this 15 working day hold period, the nonroad 
engine is to be stored at a location where the Administrator has 
reasonable access to the nonroad engine for the Administrator's 
inspection. The storage is to be within 50 miles of the ICI's testing 
facility to allow the Administrator reasonable access for inspection and 
testing. A storage facility not meeting this criterion must be approved 
in writing by the Administrator prior to the submittal of the ICI's 
application under paragraph (a) of this section.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
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 an 
ICI's production nonroad engines comply with applicable emission 
requirements or requirements of this subpart, an EPA enforcement officer 
or authorized representative is authorized to conduct inspections and/or 
tests of nonroad engines imported by the ICI. The ICI must admit an EPA 
enforcement officer or authorized representative during operating hours 
to any of the following places upon demand and upon presentation of 
credentials:
    (1) Any facility where any nonroad engine imported by the ICI under 
this subpart was or is being modified, tested, or stored and
    (2) Any facility where any record or other document relating to 
modification, testing, or storage of the nonroad engine, or required to 
be kept by Sec. 89.607, is located. EPA may require inspection or 
testing of nonroad engines at the test facility used by the ICI or at an 
EPA-designated testing facility, with transportation and/or testing 
costs to be borne by the ICI.
    (b) Upon admission to any facility referred to in paragraph (a) of 
this section, an EPA enforcement officer or authorized representative is 
allowed during operating hours:
    (1) To inspect and monitor any part or aspect of activities relating 
to the ICI's modification, testing, and/or storage of nonroad engines 
imported under this subpart;
    (2) To inspect and make copies of record(s) or document(s) related 
to modification, testing, and storage of a nonroad engine, or required 
by Sec. 89.607; and
    (3) To inspect and photograph any part or aspect of the nonroad 
engine and any component used in the assembly thereof.
    (c) An EPA enforcement officer or authorized representative is to be 
furnished, by those in charge of a facility being inspected, with such 
reasonable assistance as the officer or representative may request to 
help discharge any function listed in this subpart. An ICI must make 
arrangements with those in charge of a facility operated for its benefit 
to furnish such reasonable assistance without charge to EPA. Reasonable 
assistance includes, but is not limited to, clerical, copying, 
interpretation and translation services, and the making available on 
request of personnel of the facility being inspected during their 
working hours to inform the EPA enforcement officer or authorized 
representative of how the facility operates and to answer any questions.
    (d) The requirements of paragraphs (a), (b), and (c) of this section 
apply whether or not the ICI owns or controls the facility in question. 
It is the ICI's responsibility to make such arrangements as may be 
necessary to assure compliance with paragraphs (a), (b), and (c) of this 
section. Failure to do so, or other failure to comply with paragraphs 
(a), (b), or (c), may result in sanctions as provided for in the Act or 
Sec. 89.612(e).
    (e) Duly designated enforcement officers are authorized to proceed 
ex parte to seek warrants authorizing the inspection or testing of the 
nonroad engines described in paragraph (a) of this section whether or 
not the enforcement officers first attempted to seek permission from the 
ICI or facility owner to inspect such nonroad engines.
    (f) The results of the Administrator's test under this section 
comprise the official test data for the nonroad engine for purposes of 
determining whether the nonroad engine should be permitted final entry 
under 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 of the 
provisions of this subpart must establish and maintain adequately 
organized and indexed records, correspondence and other applicable 
documents 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 final 
admission or exportation of a nonconforming nonroad engine imported by 
the ICI. These records include, but are not limited to:

[[Page 151]]

    (1) The declaration required by U.S. Bureau of Customs regulations.
    (2) Any documents or other written information required by a federal 
government agency to be submitted or retained in conjunction with the 
certification, importation or emission testing (if applicable) of 
nonroad engines;
    (3) All bills of sale, invoices, purchase agreements, purchase 
orders, principal or agent agreements, and correspondence between the 
ICI and the ultimate purchaser of each nonroad engine and between any 
agents of the above parties;
    (4) For nonroad engines imported by an ICI pursuant to Sec. 89.605 
or Sec. 89.609, documents providing parts identification data 
(including calibration changes and part numbers and location of such 
parts on each nonroad engine) associated with the emission control 
system installed on each nonroad engine demonstrating that such emission 
control system was properly installed on such nonroad engine;
    (5) For nonroad engines imported by an ICI pursuant to Sec. 89.605 
or Sec. 89.609, documents demonstrating that, where applicable, each 
nonroad engine was emission tested in accordance with subpart E of this 
part and part 86, subpart I of this chapter;
    (6) Documents providing evidence that the requirements of Sec. 
89.610 have been met;
    (7) Documents providing evidence of compliance with all relevant 
requirements of the Clean Air Act;
    (8) Documents providing evidence of the initiation of the 15 working 
day hold period (that is, evidence that the application submitted 
pursuant to Sec. 89.605(a) or Sec. 89.609(b) was received by EPA) for 
each nonroad engine imported pursuant to Sec. 89.605 or Sec. 89.609;
    (9) For nonroad engines owned by the ICI at the time of importation, 
documents providing evidence of the date of sale and date of delivery to 
the ultimate purchaser, together with the name, address, and telephone 
number of the ultimate purchaser for each nonroad engine imported 
pursuant to Sec. 89.605 or Sec. 89.609;
    (10) For nonroad engines not owned by the ICI at the time of 
importation, documents providing evidence and date of release to the 
owner (including owner's name, address, and telephone number) for each 
nonroad engine imported pursuant to Sec. 89.605 or Sec. 89.609;
    (11) Documents providing evidence of the date of original 
manufacture of the nonroad engine. The importer may substitute an 
alternate date in lieu of the date of original manufacture, provided 
that the substitution of such alternate date is approved in advance by 
the Administrator.
    (b) The ICI is responsible for ensuring the maintenance of records 
required by this section, regardless of whether or not facilities used 
by the ICI to comply with requirements of this subpart are under the 
control 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 Independent 
Commercial Importer (ICI) pursuant to Sec. 89.605 or Sec. 89.609 and 
finally admitted by EPA may be inspected and emission tested by EPA for 
the recall period specified in Sec. 89.104(b).
    (b) ICIs must maintain for eight years, and provide to EPA upon 
request, a list of owners or ultimate purchasers of all nonroad engines 
imported by the ICI under this subpart.
    (c) The Administrator must notify the ICI whenever the Administrator 
has determined that a substantial number of a class or category of the 
ICI's nonroad engines, although properly maintained and used, do not 
conform to the regulations prescribed under section 213 of the Act when 
in actual use throughout their useful lives. After such notification, 
the recall regulations at subpart H of this part govern the ICI's 
responsibilities. References to a manufacturer in the recall 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 nonroad 

engines.

    (a) A nonroad engine may be imported under this section by an 
Independent Commercial Importer (ICI) possessing a currently valid 
certificate of conformity only if:

[[Page 152]]

    (1) The nonroad engine is six original production years old or 
older; and
    (2) The ICI's name has not been placed on a currently effective EPA 
list of ICIs ineligible to import such modification/test nonroad 
engines, as described in paragraph (e) of this section; and
    (3) The ICI has a currently valid certificate of conformity for the 
same nonroad engine class and fuel type as the nonroad engine being 
imported.
    (b) A nonroad engine conditionally imported under this section may 
be finally admitted into the United States upon approval of the ICI's 
application by the Administrator. The application is to be made by 
completing EPA forms, in accordance with EPA instructions. The ICI 
includes in the application:
    (1) The identification information required in Sec. 89.604;
    (2) An attestation by the ICI that the nonroad engine has been 
modified and tested in accordance with the applicable emission tests as 
specified in Subpart B Sec. 89.119(a) of this part at a laboratory 
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 applicable 
deterioration factor;
    (6) All information required under Sec. 89.610 related to 
maintenance, warranties, and labeling;
    (7) An attestation by the ICI that the ICI is responsible for the 
nonroad engine's compliance with federal emission requirements, 
regardless of whether the ICI owns the nonroad engine imported under 
this section;
    (8) The applicable address and telephone number of the ICI, or the 
name, address, and telephone number of the person who the ICI prefers to 
receive EPA notification under Sec. 89.609(d);
    (9) An attestation by the ICI that all requirements of Sec. 89.607-
95 and Sec. 89.610 have been met; and
    (10) Such other information as is deemed necessary by the 
Administrator.
    (c) EPA approval for final admission of a nonroad engine under this 
section is presumed not to have been granted if any requirement of this 
subpart has not been met.
    (d) Except as provided in paragraph (c) of this section, EPA 
approval for final admission of a nonroad engine under this section is 
presumed to have been granted if the ICI does not receive oral or 
written notice from EPA to the contrary within 15 working days of the 
date that the Engine Programs and Compliance Division of EPA receives 
the ICI's application under paragraph (b) of this section. Such EPA 
notice of nonapproval may be made to any employee of the ICI. It is the 
responsibility of the ICI to ensure that the Engine Programs and 
Compliance Division of EPA receives the application and to confirm the 
date of receipt. During this 15 working day hold period, the nonroad 
engine is stored at a location where the Administrator has reasonable 
access to the nonroad engine for the Administrator's inspection. The 
storage is to be within 50 miles of the ICI's testing facility to allow 
the Administrator reasonable access for inspection and testing. A 
storage facility not meeting this criterion must be approved in writing 
by the Administrator prior to the submittal of the ICI's application 
under paragraph (b) of this section.
    (e) EPA list of ICIs ineligible to import nonroad engines for 
modification/test. EPA maintains a current list of ICIs who have been 
determined to be ineligible to import nonroad engines under this 
section. The determination of ineligibility is made in accordance with 
the criteria and procedures in Sec. 89.612(e) of this subpart.
    (f) Inspections. Prior to final admission, a nonroad engine imported 
under this section is subject to special inspections as described in 
Sec. 89.606 with these additional provisions:
    (1) If, in the judgment of the Administrator, a significant number 
of nonroad engines imported by an ICI fail to comply with emission 
requirements upon inspection or retest or if the ICI fails to comply 
with a provision of these regulations that pertain to nonroad engines 
imported pursuant to Sec. 89.609, the ICI may be placed on the EPA list 
of ICIs ineligible to import nonroad engines under this section as 
specified in paragraph (e) of this section and Sec. 89.612(e).

[[Page 153]]

    (2) An individual nonroad engine which fails a retest or inspection 
is to be repaired and retested, as applicable, to demonstrate compliance 
with emission requirements before final admission is granted by EPA.
    (3) Unless otherwise specified by EPA, the ICI bears the costs of 
all retesting under this subsection, including transportation.
    (g) In-use inspection and testing. A nonroad engine imported under 
this section may be tested or inspected by EPA at any time during the 
recall period specified in Sec. 89.104(b), in accordance with Sec. 
89.608(a). If, in the judgment of the Administrator, a significant 
number of properly maintained and used nonroad engines imported by the 
ICI pursuant to this section fail to meet emission requirements, the 
name of the ICI may be placed on the EPA list of ICIs ineligible to 
import nonroad engines under the modification/test provision as 
specified in paragraph (e) of this section and Sec. 89.612(e).

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57021, Oct. 23, 1998]



Sec. 89.610  Maintenance instructions, warranties, emission labeling.

    The provisions of this section are applicable to all nonroad engines 
imported under the provisions of Sec. 89.605 or Sec. 89.609.
    (a) Maintenance instructions. (1) The Independent Commercial 
Importer (ICI) must furnish to the purchaser, or to the owner of each 
nonroad engine imported under Sec. 89.605 or Sec. 89.609 of this 
subpart, written instructions for the maintenance and use of the nonroad 
engine by the purchaser or owner. Each application for final admission 
of a nonroad engine is to provide an attestation that such instructions 
have been or will be (if the ultimate purchaser is unknown) furnished to 
the purchaser or owner of such nonroad engine at the time of sale or 
delivery. The ICI must maintain 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 in a file 
containing the records for that nonroad engine.
    (3) The maintenance and use instructions are not to contain 
requirements more restrictive than those set forth in Sec. 89.109 
(Maintenance Instructions) and are to be in sufficient detail and 
clarity that a mechanic of average training and ability can maintain or 
repair the nonroad engine.
    (4) For each nonroad engine imported pursuant to Sec. 89.605 or 
Sec. 89.609, ICIs must furnish with each 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 to the 
ultimate purchaser or owner is to be copied and maintained in a file 
containing the records for that nonroad engine prior to submitting each 
application for final admission pursuant to Sec. 89.605(a) or Sec. 
89.609(b).
    (b) Warranties. (1) ICIs must submit to the Engine Programs and 
Compliance Division of EPA sample copies (including revisions) of any 
warranty documents required by this section prior to importing nonroad 
engines under this subpart.
    (2) ICIs must provide to nonroad engine owners emission warranties 
identical to those required by sections 207(a) of the Act. The warranty 
period for each nonroad engine is to commence on the date the nonroad 
engine is delivered by the ICI to the ultimate purchaser or owner.
    (3) ICIs must provide warranty insurance coverage by a prepaid 
mandatory service insurance policy underwritten by an independent 
insurance company. The policy is to:
    (i) Be subject to the approval of the Administrator if the insurance 
coverage is less than the required warranty;
    (ii) At a minimum, provide coverage for emission-related components 
installed or modified by the ICI and, to the maximum extent possible, 
the emission-related components installed by the OEM;
    (iii) Be transferable to each successive owner for the periods 
specified in Sec. 89.104(c); and

[[Page 154]]

    (iv) Provide that in the absence of an ICI's facility being 
reasonably available (that is, within 50 miles) for performance of 
warranty repairs, the warranty repairs may be performed anywhere.
    (4) ICIs must attest in each application for final admission that 
the warranty requirements have been met, that the mandatory insurance 
has been paid and is in effect, and that certificates and statements of 
the warranties have been or will be provided to the owner or ultimate 
purchaser. A copy of the warranties and evidence that the warranties are 
paid and in effect is to be maintained in a file containing the records 
for each nonroad engine prior to submitting each application for final 
admission pursuant to Sec. 89.605(a) or Sec. 89.609(b).
    (c) Emission labeling. (1) For each nonroad engine imported pursuant 
to Sec. 89.605 or Sec. 89.609, the ICI must affix a permanent legible 
label which identifies each nonroad engine and also satisfies the 
following:
    (i) The label meets all the requirements of Sec. 89.110 and 
contains the following statement ``This nonroad engine was originally 
produced in (month and year of original production). It has been 
imported and modified by (ICI's name, address, and telephone number) to 
conform to United States emission regulations applicable to the (year) 
model year.''
    (ii) If the nonroad engine is owned by the ICI at the time of 
importation, the label also states ``This nonroad engine is warranted 
for five years or 3000 hours of operation from the date of purchase, 
whichever first occurs.''
    (iii) If the nonroad engine is not owned by the ICI at the time of 
importation, the label states ``This nonroad engine is warranted for 
five years or 3000 hours of operation from the date of release to the 
owner, whichever first occurs.''
    (iv) For nonroad engines imported under Sec. 89.609, the label 
clearly states in bold letters that ``This nonroad engine has not been 
manufactured under a certificate of conformity but conforms to United 
States emission regulations under a modification/test program.'' For all 
nonroad engines imported pursuant to Sec. 89.605 or Sec. 89.609, the 
label contains the vacuum hose routing diagram applicable to the nonroad 
engines.
    (2) As part of the application to the Administrator for final 
admission of each individual nonroad engine under Sec. 89.609, the ICI 
must maintain a copy of the labels for each nonroad engine in a file 
containing the records for that nonroad engine prior to submitting each 
application for final admission. ICIs importing under Sec. 89.605 or 
Sec. 89.609 must attest to compliance with the preceding labeling 
requirements of this section in each application for final admission.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
57021, Oct. 23, 1998]



Sec. 89.611  Exemptions and exclusions.

    (a) Individuals, as well as ICIs, are eligible for importing nonroad 
engines into the United States under the provisions of this section, 
unless otherwise specified.
    (b) Notwithstanding other requirements of this subpart, a nonroad 
engine entitled to one of the temporary exemptions of this paragraph may 
be conditionally admitted into the United States if prior written 
approval for the conditional admission is obtained from the 
Administrator. Conditional admission is to be under bond. The 
Administrator may request that the U.S. Customs Service require a 
specific bond amount to ensure compliance with the requirements of the 
Act and this subpart. A written request for approval from the 
Administrator is to contain the identification required in Sec. 
89.604(a) (except for Sec. 89.604(a)(5)) and information that 
demonstrates that the importer is entitled to the exemption. 
Noncompliance with provisions of this section may result in the 
forfeiture of the total amount of the bond or exportation of the nonroad 
engine. The following temporary exemptions are permitted by this 
paragraph:
    (1) Exemption for repairs or alterations. A person may conditionally 
import under bond a nonconforming engine solely for purpose of repairs 
or alterations. The engine may not be operated in the United States 
other than for the sole purpose of repair or alteration or shipment to 
the point of repair or alteration and to the port of export. It

[[Page 155]]

may not be sold or leased in the United States and is to be exported 
upon completion of the repairs or alterations.
    (2) Testing exemption. A test nonroad engine may be conditionally 
imported by a person subject to the requirements of Sec. 89.905. A test 
nonroad engine may be operated in the United States provided that the 
operation is an integral part of the test. This exemption is limited to 
a period not exceeding one year from the date of importation unless a 
request is made by the appropriate importer concerning the nonroad 
engine in accordance with Sec. 89.905(f) for a subsequent one-year 
period.
    (3) Precertification exemption. A prototype nonroad engine for use 
in applying to EPA for certification pursuant to this subpart may be 
conditionally imported subject to applicable provisions of Sec. 89.906 
and the following requirements:
    (i) No more than one prototype nonroad engine for each engine family 
for which an importer is seeking certification is to be imported.
    (ii) The granting of precertification exemptions by the 
Administrator is discretionary. Normally, no more than three outstanding 
precertification exemptions are allowed for each importer. No 
precertification exemption is allowed if the importer requesting the 
exemption is in noncompliance with any requirement of this subpart until 
the noncompliance is corrected.
    (iii) Unless a certificate of conformity is issued for the prototype 
nonroad engine and the nonroad engine is finally admitted pursuant to 
the requirements of Sec. 89.605 within 180 days from the date of entry, 
the total amount of the bond is to be forfeited or the nonroad engine 
exported unless an extension is granted by the Administrator. A request 
for an extension is to be in writing and received by the Administrator 
prior to the date that the precertification exemption expires.
    (iv) Such precertification nonroad engine may not be operated in the 
United States other than for the sole purpose of the precertification 
exemption.
    (4) Display exemptions. (i) A nonroad engine intended solely for 
display may be conditionally imported subject to the requirements of 
Sec. 89.907.
    (ii) A display nonroad engine may be imported by any person for 
purposes related to a business or the public interest. Such purposes do 
not include collections normally inaccessible or unavailable to the 
public on a daily basis, display of a nonroad engine at a dealership, 
private use, or other purpose that the Administrator determines is not 
appropriate for display exemptions. A display nonroad engine may not be 
sold in the United States and may not be operated in the United States 
except for the operation incident and necessary to the display purpose.
    (iii) A temporary display exemption is granted for 12 months or for 
the duration of the display purpose, whichever is shorter. Two 
extensions of up to 12 months each are available upon approval by the 
Administrator. In no circumstances, however, may the total period of 
exemption exceed 36 months. The U.S. Customs Service bonds a temporary 
display exemption.
    (c) Notwithstanding any other requirement of this subpart, a nonroad 
engine may be finally admitted into the United States under this 
paragraph if prior written approval for such final admission is obtained 
from the Administrator. Conditional admission of these nonroad engines 
under this subpart is not permitted for the purpose of obtaining such 
written approval from the Administrator. A request for approval is to 
contain the identification information required in Sec. 89.604(a) 
(except for Sec. 89.604(a)(5)) and information that demonstrates that 
the importer is entitled to the exemption or exclusion. The following 
exemptions or exclusions are permitted by this paragraph:
    (1) National security exemption. A nonroad engine may be imported 
under the national security exemption found at Sec. 89.908.
    (2) Hardship exemption. The Administrator may exempt on a case-by-
case basis a nonroad engine from federal emission requirements to 
accommodate unforeseen cases of extreme hardship or extraordinary 
circumstances.
    (3) Exemption for nonroad engines identical to United States 
certified versions. (i)

[[Page 156]]

A person (including businesses) is eligible for importing a nonroad 
engine into the United States under the provisions of this paragraph. An 
exemption will be granted if the nonroad 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 a 
nonroad engine certified by the Original Engine Manufacturer (OEM) for 
sale in the United States or is proven to have been modified to be 
identical, in all material respects, to a nonroad engine certified by 
the OEM for sale in the United States according to complete written 
instructions provided by the OEM's United States representative, or his/
her designee.
    (ii) Proof of conformity. (A) Documentation submitted pursuant to 
this section for the purpose of proving conformity of individual nonroad 
engines is to contain sufficiently organized data or evidence 
demonstrating that the nonroad engine identified pursuant to Sec. 
89.604(a) is identical, in all material respects, to a nonroad engine 
identified in an OEM's application for certification.
    (B) If the documentation does not contain all the information 
required by this part, or is not sufficiently organized, EPA notifies 
the importer of any areas of inadequacy, and that the documentation does 
not receive further consideration until the required information or 
organization is provided.
    (C) If EPA determines that the documentation does not clearly or 
sufficiently demonstrate that a nonroad engine is eligible for 
importation, EPA notifies the importer in writing.
    (D) If EPA determines that the documentation clearly and 
sufficiently demonstrates that a nonroad engine is eligible for 
importation, EPA grants approval for importation and notifies the 
importer in writing. Notwithstanding any other requirement of this 
subpart, the notice constitutes approval for final admission into the 
United States.
    (d) Foreign diplomatic and military personnel may import a 
nonconforming nonroad engine without bond. At the time of admission, the 
importer must submit to the Administrator the written report required in 
Sec. 89.604(a) (except for information required by Sec. 89.604(a)(5)) 
and a statement from the U.S. Department of State confirming 
qualification for this exemption. The nonroad engine may not be sold in 
the United States and must be exported if the individual's diplomatic 
status is no longer applicable, as determined by the Department of 
State, unless subsequently brought into conformity in accordance with 
Sec. Sec. 89.605, 89.609, or 89.611(c)(3).
    (e) Competition exclusion. A nonconforming engine may be imported by 
any person provided the importer demonstrates to the Administrator that 
the engine is used to propel a vehicle used solely for competition and 
obtains prior written approval from the Administrator. A nonconforming 
engine imported pursuant to this paragraph may not be operated in the 
United States except for that operation incident and necessary for the 
competition purpose, unless subsequently brought into conformity with 
United States emission requirements in accordance with Sec. Sec. 
89.605, 89.609, or 89.611(c)(3).
    (f) Exclusions/exemptions based on date of original manufacture. (1) 
Notwithstanding any other requirements of this subpart, the following 
nonroad engines are excluded, as determined by the engine's gross power 
output, from the requirements of the Act in accordance with section 213 
of the Act and may be imported by any person:
    (i) All nonroad engines greater than or equal to 37 kW but less than 
75 kW originally manufactured prior to January 1, 1998.
    (ii) All nonroad engines greater than or equal to 75 kW but less 
than 130 kW originally manufactured prior to January 1, 1997.
    (iii) All nonroad engines greater than or equal to 130 kW but less 
than or equal to 560 kW originally manufactured prior to January 1, 
1996.
    (iv) All nonroad engines greater than 560 kW originally manufactured 
prior to January 1, 2000.
    (v) All nonroad engines greater than or equal to 19 kW but less than 
37 kW originally manufactured prior to January 1, 1999.

[[Page 157]]

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

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 
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 nonroad engine 
incorporated into a nonroad vehicle or nonroad equipment, which is not 
covered by a certificate of conformity other than in accordance with 
this subpart and the entry regulations of the U.S. Customs Service is 
prohibited. Failure to comply with this section is a violation of 
section 213(d) and section 203 of the Act.
    (b) Unless otherwise permitted by this subpart, during a period of 
conditional admission, the importer of a nonroad engine may not:
    (1) Register, license, or operate the nonroad engine in the United 
States;
    (2) Sell or offer the nonroad engine for sale;
    (3) Store the nonroad engine on the premises of a dealer (unless 
approved by the Administrator), owner, or purchaser;
    (4) Relinquish control of the nonroad engine to the owner or 
purchaser; or
    (5) Cause a nonroad engine to be altered in any manner subsequent to 
modification and testing, if applicable, for which an application for 
final admission is based and submitted to the Administrator, unless 
approved in advance by the Administrator.
    (c) A nonroad engine conditionally admitted pursuant to Sec. 89.604 
and not granted final admission within 120 days of such conditional 
admission, or within such additional time as the Administrator and the 
U.S. Customs Service may allow, is deemed to be unlawfully imported into 
the United States in violation of section 213(d) and section 203 of the 
Act, unless the nonroad engine has been delivered to the U.S. Customs 
Service for export or other disposition under applicable Customs laws 
and regulations. A nonroad engine not so delivered is subject to seizure 
by the U.S. Customs Service.
    (d) An importer who violates section 213(d) and section 203 of the 
Act is subject to the provisions of section 209 of the Act and is also 
subject to a civil penalty under section 205 of the Act of not more than 
$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 exemption provisions of 
Sec. 89.611(b) and, who fails to deliver the nonroad engine to the U.S. 
Customs Service is liable for liquidated damages in the amount of the 
bond required by applicable Customs laws and regulations. The maximum 
penalty value listed in this paragraph (d) is shown for calendar year 
2004. Maximum penalty limits for later years may be adjusted based on 
the Consumer Price Index. The specific regulatory provisions for 
changing the maximum penalties, published in 40 CFR part 19, reference 
the applicable U.S. Code citation on which the prohibited action is 
based.
    (e)(1) An ICI whose nonroad engines imported under Sec. 89.605 or 
Sec. 89.609 fail to conform to federal emission requirements after 
modification and/or testing or who fails to comply with applicable 
provisions of this subpart, may, in addition to any other applicable 
sanctions and penalties, be subject to any, or all, of the following 
sanctions:
    (i) The ICI's currently held certificates of conformity may be 
revoked or suspended;

[[Page 158]]

    (ii) The ICI may be deemed ineligible to apply for new certificates 
of conformity for up to three years; and
    (iii) The ICI may be deemed ineligible to import nonroad engines 
under Sec. 89.609 in the future and be placed on a list of ICIs 
ineligible to import nonroad engines under the provisions of Sec. 
89.609.
    (2) Grounds for the actions described in paragraph (e)(1) of this 
section include, but are not limited to, the following:
    (i) Action or inaction by the ICI or the laboratory performing the 
emission test on behalf of the ICI, which results in fraudulent, 
deceitful, or grossly inaccurate representation of any fact or condition 
which affects a nonroad engine's eligibility for admission to the United 
States under this subpart;
    (ii) Failure of a significant number of imported nonroad engines to 
comply with federal emission requirements upon EPA inspection or retest; 
or
    (iii) Failure by an ICI to comply with requirements of this subpart.
    (3) The following procedures govern any decision to suspend, revoke, 
or refuse to issue certificates of conformity under this subpart:
    (i) When grounds appear to exist for the actions described in 
paragraph (e)(1) of this section, the Administrator must notify the ICI 
in writing of any intended suspension or revocation of a certificate of 
conformity, proposed ineligibility to apply for new certificates of 
conformity, or intended suspension of eligibility to conduct 
modification/testing under Sec. 89.609, and the grounds for such 
action.
    (ii) Except as provided by paragraph (e)(3)(iv), the ICI must take 
the following actions before the Administrator will consider withdrawing 
notice of intent to suspend or revoke the ICI's certificate of 
conformity or to deem the ICI ineligible to apply for new certification 
or to deem the ICI ineligible to perform modification/testing under 
Sec. 89.609:
    (A) Submit a written report to the Administrator which identifies 
the reason for the noncompliance of the nonroad engine, describes the 
proposed remedy, including a description of any proposed quality control 
and/or quality assurance measures to be taken by the ICI to prevent the 
future occurrence of the problem, and states the date on which the 
remedies are to be implemented or
    (B) Demonstrate that the nonroad engine does in fact comply with 
applicable regulations in this chapter by retesting, if applicable, the 
nonroad engine in accordance with the applicable emission test specified 
in subpart E of this part.
    (iii) An ICI may request, within 15 calendar days of the 
Administrator's notice of intent to suspend or revoke the ICI's 
certificate of conformity or to deem the ICI ineligible to apply for new 
certificates or to deem the ICI ineligible to perform modification/
testing under Sec. 89.609, that the Administrator grant such ICI a 
hearing:
    (A) As to whether the tests, if applicable, have been properly 
conducted,
    (B) As to any substantial factual issue raised by the 
Administrator's proposed action.
    (iv) If, after the Administrator notifies an ICI of the intent to 
suspend or revoke the ICI's certificate of conformity or to deem the ICI 
ineligible to apply for new certificates or to deem the ICI ineligible 
to perform modification/testing under Sec. 89.609 and prior to any 
final suspension or revocation, the ICI demonstrates to the 
Administrator's satisfaction that the decision to initiate suspension or 
revocation of the certificate of conformity or eligibility to perform 
modification/testing under Sec. 89.609 was based on erroneous 
information, the Administrator will withdraw the notice of intent.
    (4) Hearings on suspensions and revocations of certificates of 
conformity or of eligibility to apply for new certificates or of 
eligibility to perform modification/testing under Sec. 89.609 will be 
held in accordance with the following:
    (i) The procedures prescribed by this section will apply whenever an 
ICI requests a hearing pursuant to paragraph (e)(3)(iii) of this 
section.
    (ii) Hearings under paragraph (e)(3)(iii) will be held in accordance 
with the procedures outlined in Sec. 86.614 of this chapter, where 
applicable, provided that where Sec. 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 it clearly 
appears from the data or other information contained in the request for 
a hearing, or submitted at the hearing, that no genuine and substantial 
question of fact exists with respect to the issue of whether the ICI 
failed to comply with this subpart, the Administrator will enter an 
order denying the request for a hearing, or terminating the hearing, and 
suspending or revoking the certificate of conformity and/or deeming the 
ICI ineligible to apply for new certificates or to perform modification/
testing under Sec. 89.609.
    (6) In lieu of requesting a hearing under paragraph (e)(3)(iii) of 
this section, an ICI may respond in writing to EPA's charges in the 
notice of intent to suspend or revoke. An ICI's written response must be 
received by EPA within 30 days of the date of EPA's notice of intent. No 
final decision to suspend or revoke will be made before that 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 as 
described in Sec. 89.7 apply.

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



                      Subpart H_Recall Regulations



Sec. 89.701  Applicability.

    The requirements of subpart H are applicable to all nonroad engines 
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 this part 
are subject to recall regulations specified in part 85, subpart S of 
this title, except for the items set forth in this section.
    (b) Reference to section 214 of the Clean Air Act in Sec. 85.1801 
is replaced by reference to section 216 of the Clean Air Act.
    (c) Reference to section 202 of the Act in Sec. 85.1802(a) is 
replaced by reference to section 213 of the Act.
    (d) Reference to ``family particulate emission limits as defined in 
Part 86 promulgated under section 202 of the Act'' in Sec. 85.1803(a) 
and Sec. 85.1805(a)(1) is replaced by reference to family emission 
limits as defined in part 89 promulgated under section 213 of the Act.
    (e) Reference to ``vehicles or engines'' throughout the 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 nonroad engines 
subject to the provisions of subpart A of part 89. The requirement to 
report emission-related defects affecting a given class or category of 
engines remains applicable for five years from the end of 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 this part 
are subject to emission defect reporting requirements specified in part 
85, subpart T of this chapter, except for the items set forth in this 
section.
    (b) Section 85.1901 is replaced by Sec. 89.801.
    (c) Reference to the Clean Air Act, 42 U.S.C. 1857 in Sec. 
85.1902(a) is replaced by reference to the Clean Air Act, 42 U.S.C. 
7401.
    (d) Reference to the ``approved Application for Certification 
required by 40 CFR 86.077-22 and like provisions of Part 85 and Part 86 
of Title 40 of the Code of Federal Regulations'' in Sec. 85.1902(b) is 
replaced by reference to the approved application for certification 
required by Sec. 89.115 and like provisions of part 89 of this chapter.

[[Page 160]]

    (e) Reference to section 202(d) of the Act in Sec. 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'' throughout the subpart is 
replaced by reference to ``engines.''



                     Subpart J_Exemption Provisions



Sec. 89.901  Applicability.

    The requirements of subpart J are applicable to all nonroad engines 
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 of Sec. 89.1006.
    Export exemption means an exemption granted under Sec. 89.1004(b) 
for the purpose of exporting new nonroad engines.
    National security exemption means an exemption which may be granted 
under Sec. 89.1004(b) for the purpose of national security.
    Manufacturer-owned nonroad engine means an uncertified nonroad 
engine owned and controlled by a nonroad engine manufacturer and used in 
a manner not involving lease or sale by itself or in a vehicle or piece 
of equipment employed from year to year in the ordinary course of 
business for product development, production method assessment, and 
market promotion purposes.
    Testing exemption means an exemption which may be granted under 
Sec. 89.1004(b) for the purpose of research investigations, studies, 
demonstrations or training, but not including national security.



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

    (a) For the purpose of determining the applicability of section 
216(10) of the Act, an internal combustion engine (including the fuel 
system) that is not used in a motor vehicle is deemed a nonroad engine 
if it meets the definition in subpart A of this part.
    (b) EPA will maintain a list of nonroad engines that have been 
determined to be excluded because they are used solely for competition. 
This list will be available to the public and may be obtained by writing 
to the following address: Chief, Selective Enforcement Auditing Section, 
Engine Programs and Compliance Division (6405-J), Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
    (c) Upon written request, EPA will make written determinations as to 
whether certain engines are or are not nonroad engines. Engines that are 
determined not to be nonroad engines are excluded from regulations 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 under Sec. 89.905.
    (b) Any nonroad engine manufacturer may request a national security 
exemption under Sec. 89.908.
    (c) For nonroad engine manufacturers, nonroad engines manufactured 
for export purposes are exempt without application, subject to the 
provisions of Sec. 89.909.
    (d) For eligible manufacturers, as determined by Sec. 89.906, 
manufacturer-owned nonroad engines are exempt without application, 
subject to the provisions of Sec. 89.906.
    (e) For any person, display nonroad engines are exempt without 
application, subject to the provisions of Sec. 89.907.



Sec. 89.905  Testing exemption.

    (a) Any person requesting a testing exemption must demonstrate the 
following:
    (1) That the proposed test program has a purpose which constitutes 
an appropriate basis for an exemption in accordance with this section;
    (2) That the proposed test program necessitates the granting of an 
exemption;
    (3) That the proposed test program exhibits reasonableness in scope; 
and
    (4) That the proposed test program exhibits a degree of control 
consonant

[[Page 161]]

with the purpose of the test program and EPA's monitoring requirements.
    (5) Paragraphs (b), (c), (d), and (e) of this section describe what 
constitutes a sufficient demonstration for each of the four identified 
elements.
    (b) With respect to the purpose of the proposed test program, an 
appropriate purpose would be research, investigations, studies, 
demonstrations, or training, but not national security. A concise 
statement 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 a 
practicable manner without performing or causing to be performed one or 
more of the prohibited acts under Sec. 89.1003. In appropriate 
circumstances, time constraints may be a sufficient basis for necessity, 
but the cost of certification alone, in the absence of extraordinary 
circumstances, is not a basis for necessity.
    (d) With respect to reasonableness, a test program must exhibit a 
duration of reasonable length and affect a reasonable number of engines. 
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 incorporate 
procedures consistent with the purpose of the test and be capable of 
affording EPA monitoring capability. As a minimum, required items of 
information 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 involved in 
the test;
    (5) The intended final disposition of the engines;
    (6) The manner in which the engine identification numbers will be 
identified, 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 testing 
exemption to cover nonroad engines intended for use in test programs 
planned or anticipated over the course of a subsequent one-year period. 
Unless otherwise required by the Director, Engine Programs and 
Compliance Division, a manufacturer requesting such an exemption need 
only furnish the information required by paragraphs (a)(1) and (d)(2) of 
this section along with a description of the record-keeping and control 
procedures that will be employed to assure that the engines are 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, any 
manufacturer-owned nonroad engine, as defined by Sec. 89.902, is exempt 
from Sec. 89.1003, without application, if the manufacturer complies 
with the following terms and conditions:
    (1) The manufacturer must establish, maintain, and retain the 
following adequately organized and indexed information on each exempted 
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 to these 
records to EPA authorized representatives as outlined in Sec. 89.506.
    (3) Unless the requirement is waived or an alternate procedure is 
approved by the Director, Engine Programs and Compliance Division, the 
manufacturer must permanently affix a label to each nonroad 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 cannot be removed without 
destruction or defacement,
    (iii) State in the English language and in block letters and 
numerals of a color that contrasts with the background of the label, the 
following information:
    (A) The label heading ``Emission Control Information;''

[[Page 162]]

    (B) Full corporate name and trademark of manufacturer;
    (C) Engine displacement, engine family identification, and model 
year of engine; or person of office to be contacted for further 
information about the engine;
    (D) The statement ``This nonroad engine is exempt from the 
prohibitions of 40 CFR 89.1003.''
    (4) No provision of paragraph (a)(3) of this section prevents a 
manufacturer from including any other information it desires on the 
label.
    (b) Any independent commercial importer that desires a 
precertification exemption pursuant to Sec. 89.611(b)(3) and is in the 
business of importing, modifying, or testing uncertified nonroad engines 
for resale under the provisions of subpart G of this part, must apply to 
the Director, Engine Programs and Compliance Division. The Director may 
require such independent commercial importer to submit information 
regarding the general nature of the fleet activities, the number of 
nonroad engines involved, and a demonstration that adequate record-
keeping procedures for control purposes 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 used 
solely for display purposes, will only be operated incident and 
necessary to the display purpose, and will not be sold unless an 
applicable certificate of conformity has been received or the engine has 
been finally admitted pursuant to subpart G of this part, no request for 
exemption of the engine is necessary.



Sec. 89.908  National security exemption.

    (a)(1) Any nonroad engine, otherwise subject to this part, which is 
used in a vehicle that exhibits substantial features ordinarily 
associated with military combat such as armor and/or permanently affixed 
weaponry and which will be owned and/or used by an agency of the federal 
government with responsibility for national defense, will be considered 
exempt from these regulations for purposes of national security. No 
request for exemption is necessary.
    (2) Manufacturers may request a national security exemption for any 
nonroad engine, otherwise subject to this part, which does not meet the 
conditions described in paragraph (a)(1) of this section. A manufacturer 
requesting a national security exemption must state the purpose for 
which the exemption is required and the request must be endorsed by an 
agency of the federal government charged with responsibility for 
national defense.
    (b) EPA will maintain a list of models of nonroad engines (and the 
vehicles which use them) that have been granted a national security 
exemption under paragraph (a)(2) of this section. This list will be 
available to the public and may be obtained by writing to the following 
address: Group Manager, Engine Compliance Programs Group, Engine 
Programs and Compliance Division (6403J) Environmental Protection 
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
    (c) Manufacturers must add a legible label, written in block letters 
in English, to each engine exempted under this section. The label must 
be permanently secured to a readily visible part of the engine needed 
for normal operation and not normally requiring replacement, such as the 
engine block. This label must include at least the following items:
    (1) The label heading ``EMISSION CONTROL INFORMATION''.
    (2) Your corporate name and trademark.
    (3) Engine displacement, engine family identification (as 
applicable), and model year of the engine or whom to contact for further 
information.
    (4) The statement ``THIS ENGINE HAS AN EXEMPTION FOR NATIONAL 
SECURITY UNDER 40 CFR 89.908.''.

[61 FR 52102, Oct. 4, 1996, as amended at 69 FR 39213, June 29, 2004]



Sec. 89.909  Export exemptions.

    (a) A new nonroad engine intended solely for export, and so labeled 
or tagged on the outside of the container and on the engine itself, is 
subject to the provisions of Sec. 89.1003, unless the importing country 
has new nonroad engine emission standards which differ from EPA 
standards.

[[Page 163]]

    (b) For the purpose of paragraph (a) of this section, a country 
having no standards, whatsoever, is deemed to be a country having 
emission standards which differ from EPA standards.
    (c) EPA will maintain a list of foreign countries that have in force 
nonroad emission standards identical to EPA standards and have so 
notified EPA. This list may be obtained by writing to the following 
address: Chief, Selective Enforcement Auditing Section, Manufacturers 
Operations Division (6405-J), Environmental Protection Agency, 1200 
Pennsylvania Ave., NW., Washington, DC 20460. New nonroad engines 
exported to such countries must comply with EPA certification 
regulations.
    (d) It is a condition of any exemption for the purpose of export 
under paragraph (a) of this section, that such exemption is void ab 
initio with respect to a new nonroad engine intended solely for export, 
where such nonroad engine is sold, or offered for sale, to an ultimate 
purchaser or otherwise distributed or introduced into commerce 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 made 
pursuant to Sec. 89.905 or Sec. 89.908, EPA determines it is 
appropriate to grant such an exemption, a memorandum of exemption is to 
be prepared and submitted to the person requesting the exemption. The 
memorandum is to set forth the basis for the exemption, its scope, and 
such terms and conditions as are deemed necessary. Such terms and 
conditions generally include, but are not limited to, agreements by the 
applicant to conduct the exempt activity in the manner described to EPA, 
create and maintain adequate records accessible to EPA at reasonable 
times, employ labels for the exempt engines setting forth the nature of 
the exemption, take appropriate measures to assure that the terms of the 
exemption are met, and advise EPA of the termination of the activity and 
the ultimate disposition of the engines.
    (b) Any exemption granted pursuant to paragraph (a) of this section 
is deemed to cover any subject engine only to the extent that the 
specified terms and conditions are complied with. A breach of any term 
or condition causes the exemption to be void ab initio with respect to 
any engine. Consequently, the causing or the performing of an act 
prohibited under Sec. 89.1003( a)(1) or (a)(3), other than in strict 
conformity with all terms and conditions of this exemption, renders the 
person to whom the exemption is granted, and any 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 CFR 
1068.201(i) to engines exempted or excluded under this subpart.

[59 FR 31335, June 17, 1994, as amended at 69 FR 39213, June 29, 2004]



Sec. 89.911  Submission of exemption requests.

    Requests for exemption or further information concerning exemptions 
and/or the exemption request review procedure should be addressed to: 
Chief, Selective Enforcement Auditing Section, Engine Programs and 
Compliance Division (6405-J), Environmental Protection 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 as 
described in Sec. 89.7 apply.



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

vehicle program?

    You may use the provisions of 40 CFR 1039.605 to introduce new 
nonroad engines into commerce if they are already certified to the 
requirements that apply to compression-ignition engines under 40 CFR 
parts 85 and 86. However, when using the provisions of 40 CFR 1039.605, 
references to this part 89 or sections in this part shall be used 
instead of references to 40 CFR part 1039 or sections in that part.

[70 FR 40447, July 13, 2005]

[[Page 164]]



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 new 
nonroad engines or equipment into commerce if the vehicle is already 
certified to the requirements that apply under 40 CFR parts 85 and 86. 
However, when using the provisions of 40 CFR 1039.610, references to 
this part 89 or sections in this part shall be used instead of 
references 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 to 
complete production of your engines at different facilities, as long as 
you maintain control of the engines until they are in their certified 
configuration. We may require you to take specific steps to ensure that 
such engines are in their certified configuration before reaching the 
ultimate purchaser. You may request an exemption under this section in 
your application for certification, or in a separate submission.

[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 to new marine 
engines used in lifeboats and rescue boats as described in 40 CFR 
94.914.

[73 FR 37194, June 30, 2008]



      Subpart K_General Enforcement Provisions and Prohibited Acts



Sec. 89.1001  Applicability.

    The requirements of subpart K are applicable to all nonroad engines 
subject to the provisions of subpart A of part 89, and to all nonroad 
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 the 
offering for sale, or the introduction, or delivery for introduction, 
into commerce, of any new nonroad engine manufactured after the 
applicable effective date under this part, 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.
    (ii) In the case of any person, except as provided in subpart G of 
this part, the importation into the United States of any new nonroad 
engine manufactured after the applicable effective date under this part, 
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 or copying 
of records or to fail to make reports or provide information required 
under Sec. 89.1004.
    (ii) For a person to fail or refuse to permit entry, testing, or 
inspection authorized under Sec. Sec. 89.129, 89.506 or 89.1004.
    (iii) For a person to fail or refuse to perform tests, or to have 
tests performed as required under Sec. Sec. 89.119 or 89.1004.
    (iv) For a person to fail to establish or maintain records as 
required under Sec. 89.1004.
    (3)(i) For a person to remove or render inoperative a device or 
element of design installed on or in a nonroad engine, vehicle or 
equipment in compliance with regulations under this part prior to its 
sale and delivery to the ultimate purchaser, or for a person knowingly 
to remove or render inoperative such a device or element of design after 
the sale and delivery to the ultimate purchaser; or
    (ii) For a person to manufacture, sell or offer to sell, or install, 
a part or component intended for use with, or as part of, a nonroad 
engine, vehicle or equipment, where a principal effect of the part or 
component is to bypass, defeat, or render inoperative a device or

[[Page 165]]

element of design installed on or in a nonroad engine in compliance with 
regulations issued under this part, and where the person knows or should 
know that the part or component is being offered for sale or installed 
for this use or put to such use; or
    (iii) For a person to deviate from the provisions of Sec. 89.130 
when rebuilding an engine (or rebuilding a portion of an engine or 
engine system). Such a deviation violates paragraph (a)(3)(i) of this 
section.
    (4) For a manufacturer of a new nonroad engine subject to standards 
prescribed under this part:
    (i) To sell, offer for sale, or introduce or deliver into commerce, 
a nonroad engine unless the manufacturer has complied with the 
requirements of Sec. 89.1007.
    (ii) To sell, offer for sale, or introduce or deliver into commerce, 
a nonroad engine unless a label or tag is affixed to the engine in 
accordance with Sec. 89.110.
    (iii) To fail or refuse to comply with the requirements of Sec. 
89.1008.
    (iv) Except as provided in Sec. 89.109, to provide directly or 
indirectly in any communication to the ultimate purchaser or a 
subsequent purchaser that the coverage of a warranty under the Act is 
conditioned upon use of a part, component, or system manufactured by the 
manufacturer or a person acting for the manufacturer or under its 
control, or conditioned upon service performed by such persons.
    (v) To fail or refuse to comply with the terms and conditions of the 
warranty under Sec. 89.1007.
    (5) For a person to circumvent or attempt to circumvent the 
residence time requirements of paragraph (2)(iii) of the nonroad engine 
definition in Sec. 89.2.
    (6) For a manufacturer of nonroad vehicles or equipment to 
distribute in commerce, sell, offer for sale, or introduce into commerce 
a nonroad vehicle or piece of equipment which contains an engine not 
covered by a certificate of conformity, except as otherwise allowed by 
this part.
    (b) For the purposes of enforcement of this part, the following 
apply:
    (1) Nothing in paragraph (a)(3) of this section is to be construed 
to require the use of manufacturer parts in maintaining or repairing a 
nonroad engine.
    (2) Actions for the purpose of repair or replacement of a device or 
element of design or any other item are not considered prohibited acts 
under Sec. 89.1003(a) if the action is a necessary and temporary 
procedure, the device or element is replaced upon completion of the 
procedure, and the action results in the proper functioning of the 
device or element of design.
    (3) Actions for the purpose of a conversion of a nonroad engine for 
use of a clean alternative fuel (as defined in Title II of the Act) are 
not considered prohibited acts under Sec. 89.1003(a) if:
    (i) the vehicle complies with the applicable standard when operating 
on the alternative fuel, and the device or element is replaced upon 
completion of the conversion procedure, and
    (ii) in the case of engines converted to dual fuel or flexible use, 
the action results in proper functioning of the device or element when 
the nonroad engine operates on conventional fuel.
    (4) Certified nonroad engines shall be used in all vehicles and 
equipment manufactured on or after the applicable model years in Sec. 
89.112 that are self-propelled, portable, transportable, or are intended 
to be propelled while performing their function, unless the manufacturer 
of the vehicle or equipment can prove that the vehicle or equipment will 
be used in a manner consistent with paragraph (2) of the definition of 
nonroad engine in Sec. 89.2. After the date on which a new standard 
takes effect, nonroad vehicle and equipment manufacturers may continue 
to use nonroad engines built prior to this date that are not certified 
to the standard until inventories of those engines are depleted; 
however, stockpiling of such nonroad engines will be considered a 
violation of this section.
    (5)-(6) [Reserved]
    (7) A new nonroad engine intended solely to replace a nonroad engine 
in a piece of nonroad equipment, where the engine requiring replacement 
is not certified or is certified to emission standards that are less 
stringent than those in effect when the replacement engine is built, 
shall not be subject to the prohibitions of paragraph (a)(1) of this 
section or to the requirements of

[[Page 166]]

Sec. 89.105 and paragraph (b)(4) of this section, provided that:
    (i) The engine manufacturer has ascertained that no engine produced 
by itself or by the manufacturer of the engine that is being replaced, 
if different, and certified to the requirements of this subpart, is 
available with the appropriate physical or performance characteristics 
to repower the equipment; and
    (ii) The engine manufacturer or its agent takes ownership and 
possession of the engine being replaced or confirms that the engine has 
been destroyed; and
    (iii) If the engine being replaced was not subject to any emission 
standards under this part, the replacement engine must have a permanent 
label with your corporate name and trademark and the following language, 
or similar alternate language approved by the Administrator: THIS ENGINE 
DOES NOT COMPLY WITH FEDERAL NONROAD OR ON-HIGHWAY EMISSION 
REQUIREMENTS. SALE OR INSTALLATION OF THIS ENGINE FOR ANY PURPOSE OTHER 
THAN AS A REPLACEMENT ENGINE FOR AN ENGINE MANUFACTURED PRIOR TO JANUARY 
1 [INSERT APPROPRIATE YEAR] IS A VIOLATION OF FEDERAL LAW SUBJECT TO 
CIVIL PENALTY.
    (iv) If the engine being replaced was subject to emission standards 
less stringent than those in effect when you produce the replacement 
engine, the replacement engine must have a permanent label with your 
corporate name and trademark and the following language, or similar 
alternate language approved by the Administrator:
    THIS ENGINE COMPLIES WITH U.S. EPA NONROAD EMISSION REQUIREMENTS FOR 
[Identify the appropriate emission standards (by model year, tier, or 
emission levels) for the replaced engine] ENGINES UNDER 40 CFR 
89.1003(b)(7). SELLING OR INSTALLING THIS ENGINE FOR ANY PURPOSE OTHER 
THAN TO REPLACE A [Identify the appropriate emission standards (by model 
year, tier, or emission levels) for the replaced engine] ENGINE MAY BE A 
VIOLATION OF FEDERAL LAW SUBJECT TO CIVIL PENALTY.
    (v) If the old engine was subject to emission standards less 
stringent than those in effect when you produce the replacement engine, 
you must make the replacement engine in a configuration identical in all 
material respects to the old engine. You may alternatively make the 
replacement engine in a configuration identical in all material respects 
to another certified engine of the same or later model year, as long as 
the engine is not certified with a family emission limit higher than 
that of the engine being replaced.
    (vi) Engines sold pursuant to the provisions of this paragraph 
(b)(7) will neither generate nor use emission credits and will not be 
part of any accounting under the averaging, banking and trading program.
    (vii) In cases where an engine is to be imported for replacement 
purposes under the provisions of this paragraph (b)(7), the term 
``engine manufacturer'' shall not apply to an individual or other entity 
that does not possess a current Certificate of Conformity issued by EPA 
under this part; and
    (viii) The provisions of this section may not be used to circumvent 
emission standards that apply to new engines under this part.

[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; 73 FR 59179, 
Oct. 8, 2008]



Sec. 89.1004  General enforcement provisions.

    (a) Information collection provisions. (1) Every manufacturer of new 
nonroad engines and other persons subject to the requirements of this 
part must establish and maintain records, perform tests where such 
testing is not otherwise reasonably available under this part, make 
reports and provide information the Administrator may reasonably require 
to determine whether the manufacturer or other person has acted or is 
acting in compliance with this part or to otherwise carry out the 
provisions of this part, and must, upon request of an officer or 
employee duly designated by the Administrator, permit the officer or 
employee at reasonable times to have access to and copy such records. 
The manufacturer shall

[[Page 167]]

comply in all respects with the requirements of subpart I of this part.
    (2) For purposes of enforcement of this part, an officer or employee 
duly designated by the Administrator, upon presenting appropriate 
credentials, is authorized:
    (i) To enter, at reasonable times, any establishment of the 
manufacturer, or of any person whom the manufacturer engaged to perform 
any activity required under paragraph (a) (1) of this section, for the 
purposes of inspecting or observing any activity conducted pursuant to 
paragraph (a)(1) of this section, and
    (ii) To inspect records, files, papers, processes, controls, and 
facilities used in performing an activity required by paragraph (a)(1) 
of this section, by the manufacturer or by a person whom the 
manufacturer engaged to perform the activity.
    (b) Exemption provision. The Administrator may exempt a new nonroad 
engine from Sec. 89.1003 upon such terms and conditions as the 
Administrator may find necessary for the purpose of export, research, 
investigations, studies, demonstrations, or training, or for reasons of 
national security.
    (c) Importation provision. (1) A new nonroad engine, vehicle, or 
equipment offered for importation or imported by a person in violation 
of Sec. 89.1003 is to be refused admission into the United States, but 
the Secretary of the Treasury and the Administrator may, by joint 
regulation, provide for deferring a final determination as to admission 
and authorizing the delivery of such a nonroad engine offered for import 
to the owner or consignee thereof upon such terms and conditions 
(including the furnishing of a bond) as may appear to them appropriate 
to insure that the nonroad engine will be brought into conformity with 
the standards, requirements, and limitations applicable to it under this 
part.
    (2) If a nonroad engine is finally refused admission under this 
paragraph, the Secretary of the Treasury shall cause disposition thereof 
in accordance with the customs laws unless it is exported, under 
regulations prescribed by the Secretary, within 90 days of the date of 
notice of the refusal or additional time as may be permitted pursuant to 
the regulations.
    (3) Disposition in accordance with the customs laws may not be made 
in such manner as may result, directly or indirectly, in the sale, to 
the ultimate consumer, of a new nonroad engine that fails to comply with 
applicable standards of the Administrator under this part.
    (d) Export provision. A new nonroad engine intended solely for 
export, and so labeled or tagged on the outside of the container and on 
the engine itself, shall be subject to the provisions of Sec. 89.1003, 
except that if the country that is to receive the engine has emission 
standards that differ from the standards prescribed under subpart B of 
this part, then the engine must comply with 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 to 
restrain 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 in any 
district may run into any other district.



Sec. 89.1006  Penalties.

    (a) Violations. A violation of the requirements of this subpart is a 
violation of the applicable provisions of the Act, including sections 
213(d) and 203, and is subject to the penalty provisions thereunder.
    (1) A person who violates Sec. 89.1003(a)(1), (a)(4), or (a)(6), or 
a manufacturer or dealer who violates Sec. 89.1003(a)(3)(i), is subject 
to a civil penalty of not more than $32,500 for each violation.
    (2) A person other than a manufacturer or dealer who violates Sec. 
89.1003(a)(3)(i) or any person who violates Sec. 89.1003(a)(3)(ii) is 
subject to a civil penalty of not more 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 respect to each 
nonroad engine.

[[Page 168]]

    (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 of violation.
    (6) The maximum penalty values listed in this section are shown for 
calendar year 2004. Maximum penalty limits for later years may be 
adjusted based on the Consumer Price Index. The specific regulatory 
provisions for changing the maximum penalties, published in 40 CFR part 
19, reference the applicable U.S. Code citation on which the prohibited 
action is based.
    (b) Civil actions. The Administrator may commence a civil action to 
assess and recover any civil penalty under paragraph (a) of this 
section.
    (1) An action under this paragraph may be brought in the district 
court of the United States for the district in which the defendant 
resides or has the Administrator's principal place of business, and the 
court has jurisdiction to assess a civil penalty.
    (2) In determining the amount of a civil penalty to be assessed 
under this paragraph, the court is to take into account the gravity of 
the violation, the economic benefit or savings (if any) resulting from 
the violation, the size of the violator's business, the violator's 
history of compliance with Title II of the Act, action taken to remedy 
the violation, the effect of the penalty on the violator's ability to 
continue in business, and such other matters as justice may require.
    (3) In any such action, subpoenas for witnesses who are required to 
attend a district court in any district may run into any other district.
    (c) Administrative assessment of certain penalties--(1) 
Administrative penalty authority. In lieu 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 sought against each violator in a penalty 
assessment proceeding shall not exceed $270,000, unless the 
Administrator and the Attorney General jointly determine that a matter 
involving a larger penalty amount is appropriate for administrative 
penalty assessment. Any such determination by the Administrator and the 
Attorney General is not subject to judicial review. Assessment of a 
civil penalty shall be by an order made on the record after opportunity 
for a hearing held in accordance with the procedures found at part 22 of 
this chapter. The Administrator 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 any civil 
penalty assessed under this paragraph, the Administrator shall take into 
account the gravity of the violation, the economic benefit or savings 
(if any) resulting from the violation, the size of the violator's 
business, the violator's history of compliance with Title II of the Act, 
action taken to remedy the violation, the effect of the penalty on the 
violator's ability to continue in business, and such other matters as 
justice may require.
    (3) Effect of administrator's action. (i) Action by the 
Administrator under this paragraph does not affect or limit the 
Administrator's authority to enforce any provisions of the Act; except 
that any violation with respect to which the Administrator has commenced 
and is diligently prosecuting an action under this paragraph, or for 
which the Administrator has issued a final order not subject to further 
judicial review and for which the violator has paid a penalty assessment 
under this paragraph shall not be the subject of a civil penalty action 
under paragraph (b) of this section.
    (ii) No action by the Administrator under this paragraph shall 
affect a person's obligation to comply with a section of this part.
    (4) Finality of order. An order issued under this subsection is to 
become final 30 days after its issuance unless a petition for judicial 
review is filed under paragraph (c)(5) of this section.
    (5) Judicial review. A person against whom a civil penalty is 
assessed in accordance with this subsection may seek review of the 
assessment in the

[[Page 169]]

United States District Court for the District of Columbia or for the 
district in which the violation is alleged to have occurred, in which 
such person resides, or where the person's principal place of business 
is located, within the 30-day period beginning on the date a civil 
penalty order is issued. The person shall simultaneously send a copy of 
the filing by certified mail to the Administrator and the Attorney 
General. The Administrator shall file in the court within 30 days a 
certified copy, or certified index, as appropriate, of the record on 
which the order was issued. The court is not to set aside or remand any 
order issued in accordance with the requirements of this paragraph 
unless substantial evidence does not exist in the record, taken as a 
whole, to support the finding of a violation or unless the 
Administrator's assessment of the penalty constitutes an abuse of 
discretion, and the court is not to impose additional civil penalties 
unless the Administrator's assessment of the penalty constitutes an 
abuse of discretion. In any proceedings, the United States may seek to 
recover civil penalties assessed under this section.
    (6) Collection. (i) If any person fails to pay an assessment of a 
civil penalty imposed by the Administrator as provided in this part 
after the order making the assessment has become final or after a court 
in an action brought under paragraph (c)(5) of this section has entered 
a final judgment in favor of the Administrator, the Administrator shall 
request that the Attorney General bring a civil action in an appropriate 
district court to recover the amount assessed (plus interest at rates 
established pursuant to section 6621(a)(2) of the Internal Revenue Code 
of 1986 from the date of the final order or the date of final judgment, 
as the case may be). In such an action, the validity, amount, and 
appropriateness of the penalty is not subject to review.
    (ii) A person who fails to pay on a timely basis the amount of an 
assessment of a civil penalty as described in paragraph (c)(6)(i) of 
this section shall be required to pay, in addition to that amount and 
interest, the United States' enforcement expenses, including attorney's 
fees and costs for collection proceedings, and a quarterly nonpayment 
penalty for each quarter during which the failure to pay persists. The 
nonpayment penalty is an amount equal to ten percent of the aggregate 
amount of that person's penalties and nonpayment penalties which are 
unpaid as of the beginning of such quarter.

[59 FR 31335, June 17, 1994, as amended at 70 FR 40447, July 13, 2005]



Sec. 89.1007  Warranty provisions.

    (a) The manufacturer of each nonroad engine must warrant to the 
ultimate purchaser and each subsequent purchaser that the engine is 
designed, built, and equipped so as to conform at the time of sale with 
applicable regulations under section 213 of the Act, and is free from 
defects in materials and workmanship which cause such engine to fail 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 or 
rebuilder of the part may certify according to Sec. 85.2112 that use of 
the part will not result in a failure of the engine to comply with 
emission standards promulgated in this part.
    (c) For the purposes of this section, the owner of any nonroad 
engine warranted under this part is responsible for the proper 
maintenance of the engine. Proper maintenance includes replacement and 
service, at the owner's expense at a service establishment or facility 
of the owner's choosing, of all parts, items, or devices related to 
emission control (but not designed for emission control) under the terms 
of the last 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.

[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, and 
engines manufactured during model years 1996 and after:
    (1) If the Administrator determines that a substantial number of any 
class

[[Page 170]]

or category of engines, although properly maintained and used, do not 
conform to the regulations prescribed under section 213 of the Act when 
in actual use throughout their recall period (as defined under Sec. 
89.104(b)), the Administrator shall immediately notify the manufacturer 
of such nonconformity and require the manufacturer to submit a plan for 
remedying the nonconformity of the engines with respect to which such 
notification is given.
    (i) The manufacturer's plan shall provide that the nonconformity of 
any such engines which are properly used and maintained will be remedied 
at the expense of the manufacturer.
    (ii) If the manufacturer disagrees with such determination of 
nonconformity and so advises the Administrator, the Administrator shall 
afford the manufacturer and other interested persons an opportunity to 
present their views and evidence in support thereof at a public hearing. 
Unless, as a result of such hearing, the Administrator withdraws such 
determination of nonconformity, the Administrator shall, within 60 days 
after the completion of such hearing, order the manufacturer to provide 
prompt notification of such nonconformity in accordance with paragraph 
(a)(2) of this section. The manufacturer shall comply in all respects 
with the requirements of subpart G of this part.
    (2) Any notification required to be given by the manufacturer under 
paragraph (a)(1) of this section with respect to any class or category 
of engines shall be given to dealers, ultimate purchasers, and 
subsequent purchasers (if known) in such manner and containing such 
information as required in subparts H and I of this part.
    (3)(i) The manufacturer shall furnish with each new nonroad engine 
written instructions for the proper maintenance and use of the engine by 
the ultimate purchaser as required under Sec. 89.109. The manufacturer 
shall provide in boldface type on the first page of the written 
maintenance instructions notice that maintenance, replacement, or repair 
of the emission control devices and systems may be performed by any 
nonroad engine repair establishment or individual using any nonroad 
engine part which has been certified as provided in Sec. 89.1007(a).
    (ii) The instruction under paragraph (3)(i) of this section must not 
include any condition on the ultimate purchaser's using, in connection 
with such engine, any component or service (other than a component or 
service provided without charge under the terms of the purchase 
agreement) which is identified by brand, trade, or corporate name. 
Subject instructions also must not directly or indirectly distinguish 
between service performed by the franchised dealers of such 
manufacturer, or any other service establishments with which such 
manufacturer has a commercial relationship, and service performed by 
independent nonroad engine repair facilities with which such 
manufacturer has no commercial relationship.
    (iii) The prohibition of paragraph (a)(3)(ii) of this section may be 
waived by the Administrator if:
    (A) The manufacturer satisfies the Administrator that the engine 
will function properly only if the component or service so identified is 
used in connection with such engine, and
    (B) The Administrator finds that such a waiver is in the public 
interest.
    (iv) In addition, the manufacturer shall indicate by means of a 
label or tag permanently affixed to the engine that the engine is 
covered by a certificate of conformity issued for the purpose of 
assuring achievement of emission standards prescribed under section 213 
of the Act. This label or tag shall also contain information relating to 
control of emissions as prescribed under Sec. 89.110.
    (b) The manufacturer bears all cost obligation a dealer incurs as a 
result of a requirement imposed by paragraph (a) of this section. The 
transfer of any such cost obligation from a manufacturer to a dealer 
through franchise or other agreement is prohibited.
    (c) If a manufacturer includes in an advertisement a statement 
respecting the cost or value of emission control devices or systems, the 
manufacturer shall set forth in the statement the cost or value 
attributed to these devices or systems by the Secretary of Labor 
(through the Bureau of Labor Statistics). The Secretary of Labor,

[[Page 171]]

and his or her representatives, has the same access for this purpose to 
the books, documents, papers, and records of a manufacturer as the 
Comptroller General has to those of a recipient of assistance for 
purposes 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, is to 
be made only if the owner of such vehicle or engine voluntarily permits 
such inspection to be made, except as may be provided by any state or 
local inspection program.



Sec. 89.1009  What special provisions apply to branded engines?

    A manufacturer identifying the name and trademark of another company 
on the emission control information label, as provided by Sec. 
89.110(b)(2), must comply with the provisions of 40 CFR 1039.640.

[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--prohibited controls.
90.111 Requirement of certification--prohibition of defeat devices.
90.112 Requirement of certification--adjustable parameters.
90.113 In-use testing program for Phase 1 engines.
90.114 Requirement of certification--engine information label.
90.115 Requirement of certification--supplying production engines upon 
          request.
90.116 Certification procedure--determining engine displacement, engine 
          class, and engine families.
90.117 Certification procedure--test engine selection.
90.118 Certification procedure--service accumulation and usage of 
          deterioration factors.
90.119 Certification procedure--testing.
90.120 Certification procedure--use of special test procedures.
90.121 Certification procedure--recordkeeping.
90.122 Amending the application and certificate of conformity.
90.123 Denial, revocation of certificate of conformity.
90.124 Request for hearing.
90.125 Hearing procedures.
90.126 Right of entry and access.
90.127 Fuel line permeation from nonhandheld engines and equipment.
90.128 Installation instructions.
90.129 Fuel tank permeation from handheld engines and equipment.

   Subpart C_Certification Averaging, Banking, and Trading Provisions

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 with emission 
          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.
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.

[[Page 172]]

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 frequency table.
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 system description.
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--gasoline fueled engines.
90.420 CVS concept of exhaust gas sampling system.
90.421 Dilute gaseous exhaust sampling and analytical system 
          description.
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--gasoline fueled 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 passing and failing 
          criteria for selective enforcement audits.
90.511 Suspension and revocation of certificates of conformity.
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 Plans for 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.
90.615 Model year restrictions related to imported engines and 
          equipment.

         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.

[[Page 173]]

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 of conformity.
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, record retention.
90.806 Responsibility under other legal provisions preserved.
90.807 Disclaimer of production warranty applicability.
90.808 Ordered recall provisions.

  Subpart J_Exclusion and Exemption of Nonroad Engines From Regulations

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 precertification exemption.
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 for large SI 
          engines.

      Subpart K_Prohibited Acts and General Enforcement Provisions

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.
90.1007 Bonding requirements related to compliance, enforcement, and 
          warranty assurance.

        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 ultimate purchaser.

                   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 otherwise noted.



                            Subpart A_General



Sec. 90.1  Applicability.

    (a) This part applies to new nonroad spark-ignition engines and 
vehicles with gross power output at or below 19 kilowatts (kW) used for 
any purpose, unless we exclude them under paragraph (d) of this section.
    (b) In certain cases, the regulations in this part 90 also apply to 
new engines with a gross power output above 19 kW that would otherwise 
be covered by 40 CFR part 1048 or 1051. See 40 CFR 1048.615 or 
1051.145(a)(3) for provisions related to this allowance.
    (c) In certain cases, the regulations in this part 90 apply to new 
engines below 50 cc used in motorcycles that are motor vehicles. See 40 
CFR 86.447-2006 for provisions related to this allowance.
    (d) The following nonroad engines and vehicles are not subject to 
the provisions of this part:
    (1) Engines that are certified to meet the requirements of 40 CFR 
part 1051 or are otherwise subject to 40 CFR part 1051 (for example, 
engines used in snowmobiles and all-terrain vehicles). This part 
nevertheless applies to engines used in recreational vehicles if the 
manufacturer uses the provisions of 40 CFR 1051.145(a)(3) to exempt them 
from the requirements of 40 CFR part 1051. Compliance with the 
provisions of this part is a required condition of that exemption.

[[Page 174]]

    (2) Engines used in highway motorcycles. See 40 CFR part 86, subpart 
E.
    (3) Propulsion marine engines. See 40 CFR part 91. This part applies 
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 part 1048 
or are otherwise subject to 40 CFR part 1048, subject to the provisions 
of Sec. 90.913.
    (6) Hobby engines.
    (7) Engines that are used exclusively in emergency and rescue 
equipment where no certified engines are available to power the 
equipment safely and practically, but not including generators, 
alternators, compressors or pumps used to provide remote power to a 
rescue tool. The equipment manufacturer bears the responsibility to 
ascertain on an annual basis and maintain documentation available to the 
Administrator that no appropriate certified engine is available from any 
source.
    (8) Engines that are subject to emission standards under 40 CFR part 
1054. See 40 CFR 1054.1 to determine when part 1054 applies. Note that 
certain requirements and prohibitions apply to engines built on or after 
January 1, 2010 if they are installed in equipment that will be used 
solely for competition, as described in 40 CFR 1054.1 and 40 CFR 1068.1; 
those provisions apply instead of the provisions of this part 90.
    (e) Engines subject to the provisions of this subpart are also 
subject 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 2 
engines as defined in this subpart.
    (f) Certain text in this part is identified as pertaining to Phase 1 
or Phase 2 engines. Such text pertains only to engines of the specified 
Phase. If no indication of Phase is given, the text pertains to all 
engines, regardless of Phase.
    (g) This part also applies to engines under 50 cc used in 
motorcycles that are motor vehicles if the manufacturer uses the 
provisions of 40 CFR 86.447-2006 to meet the emission standards in this 
part instead of the requirements of 40 CFR part 86. In this case, 
compliance with the provisions of this part is a required condition 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; 73 FR 59179, Oct. 8, 
2008]



Sec. 90.2  Effective dates.

    (a) This subpart applies to nonroad spark-ignition engines at or 
below 19 kW effective with the 1997 model year.
    (b) Notwithstanding paragraph (a) of this section, this subpart 
applies to class V engines, as specified in Sec. 90.116(b)(5), that are 
preempted from regulation in California by section 209(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 greater than or 
equal to 5,000 rpm and with no installed speed governor are not subject 
to the provisions of this part through the 2005 model year. Starting 
with the 2006 model year, all the requirements of this part apply to 
engines used in these vehicles if they are not included in the scope of 
40 CFR part 1051.
    (d) Engines used in emergency and rescue equipment as described in 
Sec. 90.1(d)(7) are subject to the provisions of this part through 
December 31, 2009. Starting January 1, 2010 the provisions in 40 CFR 
1054.660 apply instead of those in Sec. 90.1(d)(7).
    (e) Engines imported for personal use are subject to the provisions 
of Sec. 90.611 through December 31, 2009. Starting January 1, 2010 the 
provisions in 40 CFR 1054.630 apply instead of those in Sec. 90.611.

[60 FR 34598, July 3, 1995, as amended at 67 FR 68339, Nov. 8, 2002; 73 
FR 59179, Oct. 8, 2008]



Sec. 90.3  Definitions.

    The following definitions apply to part 90. All terms not defined 
herein have the meaning given them in the Act.
    Act means the Clean Air Act, as amended, 42 U.S.C. 7401 et seq.
    Adjustable parameter means any device, system, or element of design

[[Page 175]]

which is physically capable of being adjusted (including those which are 
difficult to access) and which, if adjusted, may affect emissions or 
engine performance during emission testing or normal in-use operation.
    Administrator means the Administrator of the Environmental 
Protection Agency or his or her authorized representative.
    Aftertreatment means the passage of exhaust gases through a device 
or system such as a catalyst whose purpose is to chemically alter the 
gases prior to their release to the atmosphere.
    Aircraft means any vehicle capable of sustained air travel above 
treetop heights.
    Amphibious vehicle means a vehicle with wheels or tracks that is 
designed primarily for operation on land and secondarily for operation 
in water.
    Auxiliary emission control device (AECD) means any element of design 
that senses temperature, vehicle speed, engine RPM, transmission gear, 
or any other parameter for the purpose of activating, modulating, 
delaying, or deactivating the operation of any part of the emission 
control system.
    Certification means, with respect to new nonroad engines, obtaining 
a certificate of conformity for an engine family complying with the 
nonroad engine emission standards and requirements specified in this 
part.
    DF or df means deterioration factor.
    Eligible production or U.S. production means Phase 2 engines 
produced for purposes of being used in the United States, and includes 
any engine exported and subsequently imported in a new piece of 
equipment, but excludes any engine introduced into commerce, by itself 
or in a piece of equipment, for use in a state that has established its 
own emission requirements applicable to such engines pursuant to a 
waiver granted by EPA under section 209(e) of the Clean Air Act.
    Emission control system means any device, system, or element of 
design which controls or reduces the emission of substances from an 
engine.
    Engine as used in this part, refers to nonroad engine.
    Engine family means a group of engines, as specified in Sec. 
90.116.
    Engine manufacturer means any person engaged in the manufacturing or 
assembling of new nonroad engines or the importing of such engines for 
resale, or who acts for and is under the control of any such person in 
connection with the distribution of such engines. Engine manufacturer 
does not include any dealer with respect to new nonroad engines received 
by such person in commerce.
    EPA enforcement officer means any officer, employee, or authorized 
representative of the U.S. Environmental Protection Agency so designated 
in writing by the Administrator (or by his or her designee).
    Equipment manufacturer means a manufacturer of equipment using 
engines covered by the provisions of this Part who does not also 
manufacture engines covered by the provisions of this Part.
    Exhaust emissions means matter emitted into the atmosphere from any 
opening downstream from the exhaust port of a nonroad engine.
    Family Emission Limit or FEL means an emission level that is 
declared by the manufacturer to serve in lieu of an emission standard 
for the purposes of certification, production line testing, and 
Selective Enforcement Auditing for engines participating in the 
averaging, banking and trading program. A declared FEL will also serve 
in lieu of an emission standard where the manufacturer elects to perform 
voluntary in-use testing under this part. An FEL must be expressed to 
the same number of decimal places as the applicable emission standard.
    Fuel line has the meaning given in 40 CFR 1054.801.
    Fuel system means all components involved in the transport, 
metering, and mixture of the fuel from the fuel tank to the combustion 
chamber(s) including the following: fuel tank, fuel tank cap, fuel pump, 
fuel lines, oil injection metering system, carburetor or fuel injection 
components, and all fuel system vents.
    Good engineering judgment has the meaning given in 40 CFR 1068.30. 
See 40 CFR 1068.5 for the administrative process we use to evaluate good 
engineering judgment.

[[Page 176]]

    Gross power means the power measured at the crankshaft or its 
equivalent, the engine being equipped only with the standard accessories 
(such as oil pumps, coolant pumps, and so forth) necessary for its 
operation on the test bed.
    Handheld equipment engine means a nonroad engine that meets the 
requirements specified in Sec. 90.103(a)(2)(I) through (v).
    HC+NOX means total hydrocarbons plus oxides of nitrogen.
    Hobby engines means engines used in reduced-scale models of vehicles 
that are not capable of transporting a person (for example, model 
airplanes).
    Marine engine means a nonroad engine that is installed or intended 
to be installed on a marine vessel. This includes a portable auxiliary 
marine engine only if its fueling, cooling, or exhaust system is an 
integral part of the vessel. There are two kinds of marine engines:
    (1) Propulsion marine engine means a marine engine that moves a 
vessel through the water or directs the vessel's movement.
    (2) Auxiliary marine engine means a marine engine not used for 
propulsion.
    Marine vessel has the meaning given in 1 U.S.C. 3, except that it 
does not include amphibious vehicles. The definition in 1 U.S.C. 3 very 
broadly includes every craft capable of being used as a means of 
transportation on water.
    Maximum engine power means the maximum value of gross power at rated 
speed.
    Model year (MY) means the manufacturer's annual new model production 
period which includes January 1 of the calendar year, ends no later than 
December 31 of the calendar year, and does not begin earlier than 
January 2 of the previous calendar year. Where a manufacturer has no 
annual new model production period, model year means calendar year.
    New, for the purposes of this part, means a nonroad engine or 
nonroad vehicle the equitable or legal title to which has never been 
transferred to an ultimate purchaser. Where the equitable or legal title 
to the engine or vehicle is not transferred to an ultimate purchaser 
until after the engine or vehicle is placed into service, then the 
engine or vehicle will no longer be new after it is placed into service. 
A nonroad engine or vehicle is placed into service when it is used for 
its functional purposes. With respect to imported nonroad engines or 
nonroad vehicles, the term ``new'' means an engine or vehicle that is 
not covered by a certificate of conformity issued under this part at the 
time of importation, and that is manufactured after the effective date 
of a regulation issued under this part which is applicable to such 
engine or vehicle (or which would be applicable to such engine or 
vehicle had it been manufactured for importation into the United 
States).
    New Class I engine family means any group of engines that employ a 
design that is different from engine families that the engine 
manufacturer has previously certified, and does not include any engine 
family certified on the basis of carryover data or any engine family 
that differs from another engine family solely as a result of a running 
change.
    NMHC+NOX means nonmethane hydrocarbons plus oxides of 
nitrogen.
    Nonroad engine means:
    (1) Except as discussed in paragraph (2) of this definition, any 
internal combustion engine:
    (i) In or on a piece of equipment that is self-propelled or serves a 
dual purpose by both propelling itself and performing another function 
(such as garden tractors, off-highway mobile cranes, and bulldozers); or
    (ii) In or on a piece of equipment that is intended to be propelled 
while performing its function (such as lawnmowers and string trimmers); 
or
    (iii) That, by itself or in or on a piece of equipment, is portable 
or transportable, meaning designed to be and capable of being carried or 
moved from one location to another. Indicia of transportability include, 
but are not limited to, wheels, skids, carrying handles, dolly, trailer, 
or platform.
    (2) An internal combustion engine is not a nonroad engine if:
    (i) The engine is used to propel a motor vehicle or a vehicle used 
solely for competition, or is subject to standards promulgated under 
section 202 of the Act; or

[[Page 177]]

    (ii) The engine is regulated by a federal New Source Performance 
Standard promulgated under section 111 of the Act; or
    (iii) The engine otherwise included in paragraph (1)(iii) of this 
definition remains or will remain at a location for more than 12 
consecutive months or a shorter period of time for an engine located at 
a seasonal source. A location is any site at a building, structure, 
facility, or installation. Any engine (or engines) that replaces an 
engine at a location and that is intended to perform the same or similar 
function as the engine replaced will be included in calculating the 
consecutive time period. An engine located at a seasonal source is an 
engine that remains at a seasonal source during the full annual 
operating period of the seasonal source. A seasonal source is a 
stationary source that remains in a single location on a permanent basis 
(i.e., at least two years) and that operates at that single location 
approximately three months (or more) each year. This paragraph does not 
apply to an engine after the engine is removed from the location.
    Nonroad vehicle means a vehicle that is powered by a nonroad engine 
as defined in this section and that is not a motor vehicle or a vehicle 
used solely for competition. Nonroad vehicle also includes equipment 
that is powered by nonroad engines.
    Nonroad vehicle manufacturer means any person engaged in the 
manufacturing or assembling of new nonroad vehicles or importing such 
vehicles for resale, or who acts for and is under the control of any 
such person in connection with the distribution of such vehicles. A 
nonroad vehicle manufacturer does not include any dealer with respect to 
new nonroad vehicles received by such person in commerce.
    Operating hours means:
    (1) For engine storage areas or facilities, all times during which 
personnel other than custodial personnel are at work in the vicinity of 
the storage area or facility and have access to it.
    (2) For all other areas or facilities, all times during which an 
assembly line is in operation or all times during which testing, 
maintenance, service accumulation, production or compilation of records, 
or any other procedure or activity related to certification testing, to 
translation of designs from the test stage to the production stage, or 
to engine manufacture or assembly is being carried out in a facility.
    Overhead valve engine means an otto-cycle, four stroke engine in 
which the intake and exhaust valves are located above the combustion 
chamber within the cylinder head. Such engines are sometimes 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 the regulations 
in this part to the standard levels defined for Phase 1.
    Phase 2 engine means any handheld and nonhandheld engine that was 
produced under a certificate of conformity under the regulations in this 
part to the standards defined for Phase 2 engines.
    Presentation of credentials means the display of the document 
designating a person as an EPA enforcement officer or EPA authorized 
representative.
    Recreational means, for purposes of this part, relating to a vehicle 
intended by the vehicle manufacturer to be operated primarily for 
pleasure.
    Round, rounded or rounding means, unless otherwise specified, that 
numbers will be rounded according to ASTM-E29-93a, which is incorporated 
by reference in this part pursuant to Sec. 90.7.
    Scheduled maintenance means any adjustment, repair, removal, 
disassembly, cleaning, or replacement of components or systems required 
by the manufacturer to be performed on a periodic basis to prevent part 
failure or vehicle or engine malfunction, or those actions anticipated 
as necessary to correct an overt indication of malfunction or failure 
for which periodic maintenance is not appropriate.
    Side valve engine means an otto-cycle, four stroke engine in which 
the intake and exhaust valves are located to the side of the cylinder, 
not within the cylinder head. Such engines are sometimes referred to as 
``L-head'' engines.
    Small volume engine family means any handheld engine family or any

[[Page 178]]

nonhandheld engine family whose eligible production in a given model 
year are projected at the time of certification to be no more than 5,000 
engines.
    Small volume engine manufacturer means, for nonhandheld engines, any 
engine manufacturer whose total eligible production of nonhandheld 
engines are projected at the time of certification of a given model year 
to be no more than 10,000 nonhandheld engines. For handheld engines, the 
term small volume engine manufacturer means any engine manufacturer 
whose total eligible production of handheld engines are projected at the 
time of certification of a given model year to be no more than 25,000 
handheld engines.
    Small volume equipment manufacturer means, for nonhandheld 
equipment, any equipment manufacturer whose production of nonhandheld 
equipment subject to regulation under this part or powered by engines 
regulated under this part, does not exceed 5,000 pieces for a given 
model year or annual production period excluding that equipment intended 
for introduction into commerce for use in a state that has established 
its own emission requirements applicable to such equipment or engines in 
such equipment, pursuant to a waiver granted by EPA under section 209(e) 
of the Clean Air Act. For handheld equipment, the term small volume 
equipment manufacturer has the same meaning except that it is limited to 
25,000 pieces of handheld equipment rather than 5,000 pieces of 
nonhandheld equipment.
    Small volume equipment model means, for nonhandheld equipment, any 
unique model of equipment whose production subject to regulations under 
this part or powered by engines regulated under this part, does not 
exceed 500 pieces for a given model year or annual production period 
excluding that equipment intended for introduction into commerce for use 
in a state that has established its own emission requirements applicable 
to such equipment or engines in such equipment, pursuant to a waiver 
granted by EPA under section 209(e) of the Clean Air Act. For handheld 
equipment, the term small volume equipment model has the same meaning 
except that it is limited to 5,000 pieces of handheld equipment, rather 
than 500 pieces of nonhandheld equipment.
    Test engine means the engine or group of engines that a manufacturer 
uses during certification to determine compliance with emission 
standards.
    Ultimate purchaser means, with respect to any new nonroad engine or 
new nonroad vehicle, the first person who in good faith purchases such 
new nonroad engine or vehicle for purposes other than resale.
    United States means the States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, Guam, American Samoa, and the U.S. Virgin Islands.
    Used solely for competition means exhibiting features that are not 
easily removed and that would render its use other than in competition 
unsafe, impractical, or highly unlikely.
    Warranty period means the period of time the engine or part is 
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 FR 40448, July 
13, 2005; 73 FR 59179, Oct. 8, 2008]



Sec. 90.4  Treatment of confidential information.

    (a) Any manufacturer may assert that some or all of the information 
submitted pursuant to this part is entitled to confidential treatment as 
provided by part 2, subpart B of this chapter.
    (b) Any claim of confidentiality must accompany the information at 
the time it is submitted to EPA.
    (c) To assert that information submitted pursuant to this subpart is 
confidential, a manufacturer must indicate clearly the items of 
information claimed confidential by marking, circling, bracketing, 
stamping, or otherwise specifying the confidential information. 
Furthermore, EPA requests, but does not require, that the submitter also 
provide a second copy of its submittal from which all confidential 
information has been deleted. If a need arises to publicly release 
nonconfidential information, EPA will assume that the submitter has 
accurately deleted

[[Page 179]]

the confidential information from this second copy.
    (d) If a claim is made that some or all of the information submitted 
pursuant to this subpart is entitled to confidential treatment, the 
information covered by that confidentiality claim will be disclosed by 
the Administrator only to the extent and by means of the procedures set 
forth in part 2, subpart B of this chapter.
    (e) Information provided without a claim of confidentiality at the 
time of submission may be made available to the public by EPA without 
further notice to the submitter, in accordance with Sec. 
2.204(c)(2)(i)(A) of this chapter.



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 of the 
subpart. Tables are numbered consecutively by order of appearance in the 
appendix. The table title will indicate the topic.
    (b) Figures for each subpart appear in an appendix at the end of the 
subpart. Figures are numbered consecutively by order of appearance in 
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. The incorporation by 
reference was approved by the Director of the Federal Register in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be 
inspected at U.S. EPA Air and Radiation Docket, room M-1500, 401 M St., 
SW., Washington D.C. 20460, or at the National Archives and Records 
Administration (NARA). For information on the availability of 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 material that 
has been incorporated by reference in this part.
    (1) ASTM material. The following table sets forth material from the 
American Society for Testing and Materials which has been incorporated 
by reference. The first column lists the number and name of the 
material. The second column lists the section(s) of this part, other 
than Sec. 90.7, in which the matter is referenced. The second column is 
presented for information only and may not be all inclusive. Copies of 
these materials may be obtained from American Society for Testing and 
Materials, 1916 Race St., Philadelphia, PA 19103.

------------------------------------------------------------------------
         Document number and name             40 CFR part 90 reference
------------------------------------------------------------------------
ASTM D86-93:
    Standard Test Method for Distillation  Appendix A to subpart D,
     of Petroleum Products.                 Table 3.
ASTM D1319-89:
    Standard Test Method for Hydrocarbon   Appendix A to subpart D,
     Types in Liquid Petroleum Products     Table 3.
     by Fluorescent Indicator Adsorption.
ASTM D2622-92:
    Standard Test Method for Sulfur in     Appendix A to subpart D,
     Petroleum Products by X-ray            Table 3.
     Spectrometry.
ASTM D2699-92:

[[Page 180]]

 
    Standard Test Method for Knock         Appendix A to subpart D,
     Characteristics of Motor Fuels by      Table 3.
     the Research Method.
ASTM D2700-92:
    Standard Test Method for Knock         Appendix A to subpart D,
     Characteristics of Motor and           Table 3.
     Aviation Fuels by the Motor Method.
ASTM D3231-89:
    Standard Test Method for Phosphorus    Appendix A to subpart D,
     in Gasoline.                           Table 3.
ASTM D3606-92:
    Standard Test Method for               Appendix A to subpart D,
     Determination of Benzene and Toluene   Table 3.
     in Finished 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:
    Standard Practice for Using            90.116; 90.509.
     Significant Digits in Test Data to
     Determine Conformance with
     Specifications.
------------------------------------------------------------------------

    (2) SAE material. The following table sets forth material from the 
Society of Automotive Engineers which has been incorporated by 
reference. The first column lists the number and name of the material. 
The second column lists the section(s) of this part, other than Sec. 
90.7, in which the matter is referenced. The second column is presented 
for information only and may not be all inclusive. Copies of these 
materials may be obtained from Society of Automotive Engineers 
International, 400 Commonwealth Dr., Warrendale, PA 15096-0001.

------------------------------------------------------------------------
         Document number and name             40 CFR part 90 reference
------------------------------------------------------------------------
SAE J1930 September 1991, Electrical/      90.114
 Electronic Systems Diagnostic Terms,
 Definitions, Abbreviations and Acronyms.
SAE Paper 770141, Optimization of a Flame  90.316
 Ionization Detector for Determination of
 Hydrocarbon in Diluted Automotive
 Exhausts, Glenn D. Reschke, 1977.
------------------------------------------------------------------------



        Subpart B_Emission Standards and Certification Provisions



Sec. 90.101  Applicability.

    (a) The requirements of this subpart B are applicable to all nonroad 
engines and vehicles subject to the provisions of subpart A of this 
part.
    (b) In a given model year, you may ask us to approve the use of 
procedures for certification, labeling, reporting and recordkeeping, or 
other administrative requirements specified in 40 CFR part 1054 or 1068 
instead of the comparable procedures specified in this part 90. We may 
approve the request as long as it does not prevent us from ensuring that 
you fully comply with the intent of this part.

[73 FR 59179, Oct. 8, 2008]



Sec. 90.102  Definitions.

    The definitions in subpart A of part 90 apply to this subpart. All 
terms not defined herein or in subpart A have the meaning given them in 
the Act. The following definitions also apply to this subpart.
    Attitudinal control means the operator regulates either the 
horizontal or vertical position of the equipment, or both.
    Carry means the operator completely bears the weight of the 
equipment, including the engine.
    Support means that the operator holds the equipment in position so 
as to prevent it from falling, slipping or sinking. It is not necessary 
for the entire weight of the equipment to be borne by the operator.



Sec. 90.103  Exhaust emission standards.

    (a) Exhaust emissions for new Phase 1 and Phase 2 nonroad spark 
ignition engines at or below 19 kilowatts (kW), shall not exceed the 
following levels. Throughout this part, NMHC+NOX standards 
are applicable only to natural gas fueled engines at the option of the 
manufacturer, in lieu of HC+NOX standards.

[[Page 181]]



                                   Table 1--Phase 1 Exhaust Emission Standards
                                            [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, Class I-B, and Class I Engine Exhaust Emission Standards
                                            [grams per kilowatt-hour]
----------------------------------------------------------------------------------------------------------------
          Engine class                HC+NOX         NMHC+NOX           CO                Effective date
----------------------------------------------------------------------------------------------------------------
I...............................            16.1            14.8             610  August 1, 2007; in addition,
                                                                                   any Class I engine family
                                                                                   initially produced on or
                                                                                   after August 1, 2003 must
                                                                                   meet the Phase 2 Class I
                                                                                   standards before they may be
                                                                                   introduced into commerce.
I-A.............................              50  ..............             610  2001 Model Year.
I-B.............................              40              37             610  2001 Model Year.
----------------------------------------------------------------------------------------------------------------


                                        Table 3--Phase 2 Class II Engine Exhaust Emission Standards by Model Year
                                                                [grams per kilowatt-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 Handheld Exhaust 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 exhaust 
emission standards. Boundaries for each class are indicated in Sec. 
90.116(b).
    (2) Emission standards for classes III, IV, V may be used only if an 
engine meets at least one of the following requirements:
    (i) The engine must be used in a piece of equipment that is carried 
by the operator throughout the performance of its intended function(s);
    (ii) The engine must be used in a piece of equipment that must 
operate multipositionally, such as upside down or sideways, to complete 
its intended function(s);
    (iii) The engine must be used in a piece of equipment for which the 
combined engine and equipment dry weight is under 14 kilograms, no more 
than two wheels are present on the equipment, and at least one of the 
following attributes is also present:
    (A) The operator must alternately provide support or carry the 
equipment throughout the performance of its intended function(s);

[[Page 182]]

    (B) The operator must provide support or attitudinal control for the 
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 a 
combined engine and equipment dry weight under 20 kilograms;
    (v) The engine must be used in a recreational application, with a 
combined total vehicle dry weight under 20 kilograms;
    (vi) Where a piece of equipment otherwise meeting the requirements 
of paragraph (a)(2)(iii) or (a)(2)(iv) of this section exceeds the 
applicable weight limit, emission standards for class III, IV or V, as 
applicable, may still apply if the equipment exceeds the weight limit by 
no more than the extent necessary to allow for the incremental weight of 
a four stroke engine or the incremental weight of a two stroke engine 
having enhanced emission control acceptable to the Administrator. Any 
manufacturer utilizing this provision to exceed the subject weight 
limitations shall maintain and make available to the Administrator upon 
request, documentation to substantiate that the exceedance of either 
weight limitation is a direct result of application of a four stroke or 
enhanced two stroke engine having the same, less or very similar power 
to two stroke engines that could otherwise be used to power the 
equipment and remain within the weight limitations.
    (3) Notwithstanding paragraph (a)(2) of this section, two stroke 
engines used to power lawnmowers or other nonhandheld equipment may meet 
Phase 1 Class III, IV or V standards and requirements, as appropriate, 
through model year 2002 subject to the provisions of Sec. 90.107(e), 
(f) and (h). Such engines shall not be included in any computations of 
Phase 2 averaging, banking, or trading credits or eligible production.
    (4) Notwithstanding paragraph (a)(2) of this section, two-stroke 
engines used to power snowthrowers may meet class III, IV, or V 
standards.
    (5) Notwithstanding paragraph (a)(2) of this section, engines used 
exclusively to power products which are used exclusively in wintertime, 
such as snowthrowers and ice augers, at the option of the engine 
manufacturer, need not certify to or comply with standards regulating 
emissions of HC, NOX. HC+NOX or 
NMHC+NOX. as applicable. If the manufacturer exercises the 
option to certify to standards regulating such emissions, such engines 
must meet such standards. If the engine is to be used in any equipment 
or vehicle other than an exclusively wintertime product such as a 
snowthrower or ice auger, it must be certified to the applicable 
standard 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, at their 
option, certify their engine families as Phase 1 engines until the 2010 
model year for nonhandheld engine families excluding Class I-A and Class 
I-B engine families, until the 2008 model year for Class III and Class 
IV engine families, and until the 2010 model year for Class V engine 
families. Such engines shall not exceed the applicable Phase 1 standards 
and are excluded from the averaging, banking and trading program and any 
related credit calculations. Beginning with the 2010 model year for 
nonhandheld engine families, the 2008 model year for Class III and Class 
IV engine families, and the 2010 model year for Class V engine families, 
these engines must meet the applicable Phase 2 standards.
    (7) In lieu of certifying to the applicable Phase 2 standards, 
manufacturers of small volume engine families, as defined in this part 
may, at their option, certify their small volume engine families as 
Phase 1 engines until the 2010 model year for nonhandheld engine 
families excluding Class I-A and Class I-B engine families, until the 
2008 model year for Class III and Class IV engine families, and until 
the 2010 model year for Class V engine families. Such engines shall not 
exceed the applicable Phase 1 standards and are excluded from the 
averaging, banking and trading program and any related credit 
calculations. Beginning with the 2010 model year for nonhandheld engine 
families, the 2008 model year for Class

[[Page 183]]

III and Class IV engine families, and the 2010 model year for Class V 
engine families, these engines must meet the applicable Phase 2 
standards.
    (8) Notwithstanding the standards shown in Table 3 of this section, 
the HC+NOX (NMHC+NOX) standard for Phase 2 Class 
II side valve engine families with annual production of 1000 or less 
shall be 24.0 g/kW-hr (22.0 g/kW-hr) for model years 2010 and later. 
Engines produced subject to this provision may not exceed this standard 
and are excluded from the averaging, banking and trading program and any 
related credit calculations.
    (b) Exhaust emissions will be measured using the procedures set 
forth 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 FR 24305, 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 1 engines 
only. Paragraphs (d) through (h) of this section apply only to Phase 2 
engines.
    (a) If all test engines representing an engine family have emissions 
less than or equal to each emission standard in a given engine 
displacement class, that family complies with that class of emission 
standards.
    (b) If any test engine representing an engine family has emissions 
greater than any one emission standard in a given engine displacement 
class, that family will be deemed not in compliance with that class of 
emission standards.
    (c) If catalysts are used in an engine family, the engine 
manufacturer must affirm that catalyst durability has been confirmed on 
the basis of the evaluation procedure that is specified in subpart E of 
this part.
    (d) The exhaust emission standards (FELs, where applicable) for 
Phase 2 engines set forth in this part apply to the emissions of the 
engines for their full useful lives as determined pursuant to Sec. 
90.105.
    (e) For all Phase 2 engines, if all test engines representing an 
engine family have emissions, when properly tested according to 
procedures in this part, less than or equal to each Phase 2 emission 
standard (FEL, where applicable) in a given engine class and given model 
year, when multiplicatively adjusted by the deterioration factor 
determined in this section, that family complies with that class of 
emission standards for purposes of certification. If any test engine 
representing an engine family has emissions adjusted multiplicatively by 
the deterioration factor determined in this section, greater than any 
one emission standard (FEL, where applicable) for a given displacement 
class, that family does not comply with that class of emission 
standards.
    (f) Each engine manufacturer must comply with all provisions of the 
averaging, banking and trading program outlined in subpart C of this 
part for each engine family participating in that program.
    (g)(1) Small volume engine manufacturers and small volume engine 
families may, at their option, take deterioration factors for 
HC+NOX (NMHC+NOX) and CO from Table 1 or Table 2 
of this paragraph (g), or they may calculate deterioration factors for 
HC+NOX (NMHC+NOX) and CO according to the process 
described in paragraph (h) of this section. For technologies that are 
not addressed in Table 1 or Table 2 of this paragraph (g), the 
manufacturer may ask the Administrator to assign a deterioration factor 
prior to the time of certification. The provisions of this paragraph (g) 
do not apply to Class I-A and Class I-B engines.
    (2) Table 1 follows:

[[Page 184]]



      Table 1: Nonhandheld Engine HC+NOX (NMHC+NOX) and CO Assigned Deterioration Factors for Small Volume
                                 Manufacturers and Small Volume Engine Families
----------------------------------------------------------------------------------------------------------------
                                           Side valve engines      Overhead valve
                                         ----------------------        engines
              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 the formula in Sec.
                                                                                         90.104(g)(4).
Class II................................           1.6     1.1           1.4     1.1  ..........................
----------------------------------------------------------------------------------------------------------------

    (3) Table 2 follows:

 Table 2--Handheld Engine HC+NOX and CO Assigned Deterioration Factors for Small Volume Manufacturers and Small
                                             Volume Engine Families
----------------------------------------------------------------------------------------------------------------
                                       Two-stroke engines \1\      Four-stroke engines
            Engine class             ----------------------------------------------------      Engines with
                                         HC+NOX         CO         HC+NOX         CO          aftertreatment
----------------------------------------------------------------------------------------------------------------
Class III...........................          1.1          1.1          1.5          1.1  Dfs must be calculated
                                                                                           using the formula in
                                                                                           Sec.  90.104(g)(4).
Class IV............................          1.1          1.1          1.5          1.1
Class V.............................          1.1          1.1          1.5         1.1
----------------------------------------------------------------------------------------------------------------
\1\ Two-stroke technologies to which these assigned deterioration factors apply include conventional two-
  strokes, compression wave designs, and stratified scavenging designs.

    (4) Formula for calculating deterioration factors for engines with 
aftertreatment:

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 shown in 
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 for all 
classes of engines.

    (h)(1) Manufacturers shall obtain an assigned df or calculate a df, 
as appropriate, for each regulated pollutant for all Phase 2 engine 
families. Such dfs shall be used for certification, production line 
testing, and Selective Enforcement Auditing.
    (2) For engines not using assigned dfs from Table 1 or Table 2 of 
paragraph (g) of this section, dfs shall be determined as follows:
    (i) On at least one test engine representing the configuration 
chosen 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 to Sec. 
90.117, conduct full Federal test procedure emission testing pursuant to 
the regulations of subpart E of this part at the number of hours 
representing stabilized emissions pursuant to Sec. 90.118. If more than 
one engine is tested, average the results and round to the same number 
of decimal places contained in the applicable standard, expressed to one 
additional significant figure;
    (ii) Conduct such emission testing again following aging the engine. 
The aging procedure should be designed to allow the manufacturer to 
appropriately predict the in-use emission deterioration expected over 
the useful life of the engine, taking into account the type of wear and 
other deterioration mechanisms expected under typical consumer use which 
could affect emissions performance. If more than one engine is tested, 
average the results and round to the same number of decimal places 
contained in the applicable standard, expressed to one additional 
significant figure;
    (iii) Divide the full useful life emissions (average emissions, if 
applicable) for each regulated pollutant by the stabilized emissions 
(average emissions, if applicable) and round to two significant figures. 
The resulting number

[[Page 185]]

shall be the df, unless it is less than 1.0, in which case the df shall 
be 1.0.
    (iv) At the manufacturer's option additional emission test points 
can be scheduled between the stabilized emission test point and the full 
useful life test period. If intermediate tests are scheduled, the test 
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-half of full 
useful life (plus or minus 2 hours). For each pollutant 
HC+NOX (NMHC+NOX) and CO, a line must be fitted to 
the data points treating the initial test as occurring at hour zero, and 
using the method of least-squares. The deterioration factor is the 
calculated emissions durability period divided by the calculated 
emissions at zero hours.
    (3) EPA may reject a df if it has evidence that the df is not 
appropriate for that family within 30 days of receipt from the 
manufacturer. The manufacturer must retain actual emission test data to 
support its choice of df and furnish that data to the Administrator upon 
request. Manufacturers may request approval by the Administrator of 
alternate procedures for determining deterioration. Any submitted df not 
rejected by EPA within 30 days shall be deemed to have been approved.
    (4) Calculated deterioration factors may cover families and model 
years in addition to the one upon which they were generated if the 
manufacturer submits a justification acceptable to the Administrator in 
advance of certification that the affected engine families can be 
reasonably expected to have similar emission deterioration 
characteristics.
    (5) Engine families that undergo running changes need not generate a 
new df if the manufacturer submits a justification acceptable to the 
Administrator concurrent with the running change that the affected 
engine families can be reasonably expected to have similar emission 
deterioration 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 life category 
for each engine family at the time of certification as described in this 
section. Such category shall be the category which most closely 
approximates the expected useful lives of the equipment into which the 
engines are anticipated to be installed as determined by the engine 
manufacturer. Manufacturers shall retain data appropriate to support 
their choice of useful life category for each engine family. Such data 
shall be furnished to the Administrator upon request.
    (1) For nonhandheld engines: Manufacturers shall select a useful 
life category from Table 1 of this section at the time of certification. 
Engines with gross power output greater than 19 kW that have an engine 
displacement less than or equal to one liter that optionally certify 
under this part as allowed in Sec. 90.1(a), must certify to a useful 
life period of 1,000 hours.
    (2) Table 1 follows:

     Table 1: Useful Life Categories for Nonhandheld 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 life 
category from Table 2 of this paragraph (a) at the time of 
certification.
    (4) Table 2 follows:

      Table 2: Useful Life Categories for Handheld 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 life category, 
for a given engine family, may include but are not limited to:
    (i) Surveys of the life spans of the equipment in which the subject 
engines are installed;
    (ii) Engineering evaluations of field aged engines to ascertain when 
engine performance deteriorates to the point

[[Page 186]]

where usefulness and/or reliability is impacted to a degree sufficient 
to necessitate overhaul 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, of 
specific 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), every manufacturer of 
new engines produced during or after model year 1997 must obtain a 
certificate of conformity covering such engines; however, engines 
manufactured during an annual production period beginning prior to 
September 1, 1996 are not required to be certified.
    (2) Except as required in paragraph (b)(3) of this section, Class II 
engines manufactured during an annual production period beginning prior 
to September 1, 2000 are not required to meet Phase 2 requirements.
    (b)(1) The annual production period begins either when an engine 
family is first produced or on January 2 of the calendar year preceding 
the year for which the model year is designated, whichever date is 
later. The annual production period ends either when the last engine is 
produced or on December 31 of the calendar year for which the model year 
is named, whichever date is sooner.
    (2) Notwithstanding paragraph (b)(1) of this section, annual 
production periods beginning prior to September 1, 1996 may not exceed 
12 months in length.
    (3) Manufacturers who commence an annual production period for a 
Class II engine family between January 1, 2000 and September 1, 2000 
must meet Phase 2 requirements for that family only if that production 
period will exceed 12 months in length.
    (c) Except as provided in paragraph (d) of this section, a 
certificate of conformity is deemed to cover the engines named in such 
certificate and produced during the annual production period, as defined 
in paragraph (b) of this section.
    (d) Except as provided in paragraph (e) of this section, the 
certificate of conformity must be obtained from the Administrator prior 
to selling, offering for sale, introducing into commerce, or importing 
into the United States the new engine. Engines produced prior to the 
effective date of a certificate of conformity may also be covered by the 
certificate, once it is effective, if the following conditions are met:
    (1) The engines conform in all respects to the engines described in 
the application for the certificate of conformity.
    (2) The engines are not sold, offered for sale, introduced into 
commerce, or delivered for introduction into commerce prior to the 
effective date of the certificate of conformity.
    (3) EPA is notified prior to the beginning of production when such 
production will start, and EPA is provided a full opportunity to inspect 
and/or test the engines during and after their production. EPA must have 
the opportunity to conduct SEA production line testing as if the 
vehicles had been produced after the effective date of the certificate.
    (e) Engines that are certified by EPA prior to January 2, 1996 for 
model year 1997 may be delivered for introduction into commerce prior to 
January 2, 1996 once a certificate of conformity has been issued.
    (f) Engines imported by an original equipment manufacturer after 
December 31 of the calendar year for which the model year is named are 
still covered by the certificate of conformity as long as the production 
of the engine was completed before December 31 of that year.

[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 to 
the Administrator a completed application for a certificate of 
conformity.
    (b) The application must be approved and signed by the authorized 
representative of the manufacturer.

[[Page 187]]

    (c) The application must be updated and corrected by amendment as 
provided in Sec. 90.122 to accurately reflect the manufacturer's 
production.
    (d) Required content. Each application must include the following 
information:
    (1) A description of the basic engine design including, but not 
limited to, the engine family specifications;
    (2) An explanation of how the emission control system operates, 
including a detailed description of all emission control system 
components (Detailed component calibrations are not required to be 
included; they must be provided if requested, however.), each auxiliary 
emission control device (AECD), and all fuel system components to be 
installed on any production or test engine(s);
    (3) Proposed test engine(s) selection and the rationale for the test 
engine(s) selection;
    (4) Special or alternate test procedures, if applicable;
    (5) The service accumulation period necessary to break in the test 
engine(s) and stabilize emission levels;
    (6) A description of all adjustable operating parameters including 
the following:
    (i) The nominal or recommended setting and the associated production 
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 to establish 
each physically adjustable range;
    (v) Information relating to why the physical limits or stops used to 
establish the physically adjustable range of each parameter, or any 
other means used to inhibit adjustment, are effective in preventing 
adjustment of parameters to settings outside the manufacturer's intended 
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 part numbers; 
the altitude ranges at which the kits must be installed on or removed 
from the engine for proper emissions and engine performance; statements 
to be included in the owner's manual for the engine/equipment 
combination (and other maintenance related literature) that: declare the 
altitude ranges at which the kit must be installed or removed; and state 
that the operation of the engine/equipment at an altitude that differs 
from that at which it was certified, for extended periods of time, may 
increase emissions; and a statement that an engine with the altitude kit 
installed will meet each emission standard throughout its useful life 
(the rationale for this 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 test engine;
    (9) A statement that the test engine(s), as described in the 
manufacturer's application for certification, has been tested in 
accordance with the applicable test procedures, utilizing the fuels and 
equipment required under subparts D and E of this part, and that on the 
basis of such tests the engine(s) conforms to the requirements of this 
part;
    (10) An unconditional statement certifying that all engines in the 
engine family comply with all requirements of this part and the Clean 
Air Act;
    (11) This paragraph (d)(11) is applicable only to Phase 2 engines.
    (i) Engine manufacturers participating in the averaging, banking and 
trading program as described in subpart C of this part shall declare the 
applicable Family Emission Limit (FEL) for HC+NOX 
(NMHC+NOX).
    (ii) Provide the applicable useful life as determined under Sec. 
90.105;
    (12) A statement indicating whether you expect the engine family to 
contain only nonroad engines, only stationary engines, or both;
    (13) Identification of an agent for service located in the United 
States. Service on this agent constitutes service on you or any of your 
officers or employees for any action by EPA or otherwise by the United 
States related to the requirements of this part; and
    (14) For imported engines, identification of the following starting 
with the 2010 model year:

[[Page 188]]

    (i) The port(s) at which the manufacturer has imported engines over 
the previous 12 months.
    (ii) The names and addresses of the agents authorized to import the 
engines.
    (iii) The location of test facilities in the United States where the 
manufacturer can test engines if EPA selects them for testing under a 
selective enforcement audit, as specified in subpart F of this part.
    (e)(1) In addition to the information specified in paragraph (d) of 
this section, manufacturers of two-stroke lawnmower engines must submit 
with their application for a certificate of conformity:
    (i) For model year 1997, information establishing the highest number 
of two-stroke lawnmower engines produced in a single annual production 
period from 1992 through 1994. This number will be known as the 
production baseline.
    (ii) For model years 1998 through 2002, information documenting the 
previous year's production and projected production for the current 
year.
    (2) In model year 1997, two-stroke lawnmower engine manufacturers 
may produce up to 100 percent of their production baseline established 
under paragraph (e)(1)(i) of this section.
    (3) In model year 1998, two-stroke lawnmower engine manufacturers 
may produce up to 75 percent of their production baseline.
    (4) From model years 1999 through 2002, two-stroke lawnmower engine 
manufacturers may produce up to 50 percent of their production baseline.
    (5) In model year 2003, two-stroke lawnmower engine manufacturers 
must meet class I or II standards specified in Sec. 90.103(a). If in 
model year 2003 those standards have been superseded by Phase 2 
standards, two-stroke lawnmower engine manufacturers must meet the Phase 
2 standards that are equivalent to the class I or II standards.
    (f) At the Administrator's request, the manufacturer must supply 
such additional information as may be required to evaluate the 
application including, but not limited to, projected nonroad engine 
production.
    (g)(1) The Administrator may modify the information submission 
requirements of paragraph (d) of this section, provided that all of the 
information specified therein is maintained by the engine manufacturer 
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 this section whether or 
not such information is actually submitted to the Administrator for any 
particular model year.
    (3) The Administrator may review an engine manufacturer's records at 
any time. At the Administrator's discretion, this review may take place 
either at the manufacturer's facility or at another facility designated 
by the Administrator.
    (h)(1) The Administrator may, upon receipt of a written request from 
an equipment manufacturer, accompanied by sufficient documentation, 
permit two stroke engines produced for nonhandheld equipment other than 
lawnmowers to meet the standards specified in Sec. 90.103(a)(3) under 
the schedule outlined in paragraph (e) of this section. The equipment 
manufacturer must demonstrate to the satisfaction of the Administrator 
that:
    (i) Four stroke engines for such equipment are not available with 
suitable physical or performance characteristics; and
    (ii) The equipment can not be converted to use four stroke engines 
without substantial redesign for which additional lead time is necessary 
to avoid economic hardship.
    (2) The Administrator may waive the phase-in percentages of 
paragraphs (e)(3) and (e)(4) of this section for engines used in low 
volume nonhandheld equipment other than lawnmowers where the equipment 
manufacturer demonstrates to the satisfaction of the Administrator that 
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 FR 24307, Apr. 
25, 2000; 73 FR 3612, Jan. 18, 2008; 73 FR 59180, Oct. 8, 2008]

[[Page 189]]



Sec. 90.108  Certification.

    (a) If, after a review of the manufacturer's submitted application, 
information obtained from any inspection, and such other information as 
the Administrator may require, the Administrator determines that the 
application is complete and that the engine family meets the 
requirements of this part and the Clean Air Act, the Administrator shall 
issue a certificate of conformity.
    (b) The Administrator shall give a written explanation when 
certification is denied. The manufacturer may request a hearing on a 
denial. (See Sec. 90.124 for procedure.)
    (c) For certificates issued for engine families included in the 
averaging, banking and trading program as described in subpart C of this 
part:
    (1) Failure to comply with all applicable averaging, banking and 
trading provisions in this part will be considered to be a failure to 
comply with the terms and conditions upon which the certificate was 
issued, and the certificate may be determined to be void ab initio.
    (2) The manufacturer shall bear the burden of establishing to the 
satisfaction of the Administrator that the conditions upon which the 
certificate was granted were satisfied or waived.
    (d) The Administrator may, upon request by a manufacturer, waive any 
requirement of this part otherwise necessary for the issuance of a 
certificate. The Administrator may set such conditions in a certificate 
as he or she deems appropriate to assure that the waived requirements 
are either satisfied or are demonstrated, for the subject engines, to be 
inappropriate, irrelevant or met by the application of a different 
requirement under this chapter. The Administrator may indicate on such 
conditional certificates that failure to meet these conditions may 
result in suspension or revocation or the voiding ab 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'' means the housing 
for the crankshaft and other related internal parts.
    (c) Notwithstanding paragraph (a) of this section, the Administrator 
will allow open crankcases for engines used exclusively to power 
snowthrowers based upon a manufacturer's demonstration that all 
applicable emission standards will be met by the engine for the 
combination of emissions from the crankcase, and exhaust emissions 
measured using the procedures in subpart E of this part. This 
demonstration may be made based upon best engineering judgment. Upon 
request of the Administrator, the manufacturer must provide an 
explanation of any procedure or methodology used to determine that the 
total CO emissions from the crankcase and the exhaust are below the 
applicable 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 with emission 
standards if such device, system, or element of design will 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 an 
unreasonable risk to public health, welfare, or safety while operating. 
For example, this would apply if the engine emits a noxious or toxic 
substance it would otherwise not emit that contributes to such an 
unreasonable risk.

[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 operation outside 
normal emission test

[[Page 190]]

conditions and reduces emission control effectiveness.
    (1) Defeat device includes any auxiliary emission control device 
(AECD) that reduces the effectiveness of the emission control system 
under conditions which may reasonably be expected to be encountered in 
normal operation and use unless such conditions are included in the test 
procedure.
    (2) Defeat device does not include such items which either operate 
only during engine starting or are necessary to protect the engine (or 
vehicle in which it is installed) against damage or accident during its 
operation.



Sec. 90.112  Requirement of certification--adjustable parameters.

    (a) Engines equipped with adjustable parameters must comply with all 
requirements of this subpart for any specification within the physically 
available range.
    (b) An operating parameter is not considered adjustable if it is 
permanently sealed by the manufacturer or otherwise not normally 
accessible using ordinary tools.
    (c) The Administrator may require that adjustable parameters be set 
to any specification within the adjustable range during certification or 
a selective enforcement audit to determine compliance with 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 testing 
provisions for Phase 2 engines are found in subpart M of this part. At 
the time of certification the engine manufacturer may propose which 
engine families should be included in an in-use test program. EPA will 
approve a manufacturer's test program if the selected engine families 
represent an adequate consideration of the elements listed in paragraphs 
(b) and (c) of this section.
    (b) Number of engines to be tested. The number of engines to be 
tested by a manufacturer is determined by the following method:
    (1) For an engine manufacturer with total projected annual 
production of more than 75,000 engines destined for the United States 
market for that model year, the minimum number of engines to be tested 
may 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 of 
small SI engines destined for the United States market for that model 
year by 50,000, and round to the nearest whole number;
    (ii) Test five engines each from 25 percent of all engine families 
certified in that model year; and
    (iii) Test three engines each from 50 percent of all engine families 
certified in that model year.
    (2) An engine manufacturer with total projected annual production of 
75,000 engines or less destined for the United States market for that 
model year may test a minimum of two engines.
    (c) Criteria for selecting test engines. An engine manufacturer may 
select test engines from engine families utilizing the following 
criteria and in the order specified:
    (1) Engine families using emission control technology which most 
likely 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 versus overhead 
valve engines);
    (5) Engine families using emission control technology specifically 
installed 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 not been 
included in prior model year in-use testing programs as required by 
these provisions.
    (d) Collection of in-use engines. An engine manufacturer may procure 
in-use engines which have been operated for between half and three-
quarters of the engine's advertised (or projected) useful life. All 
testing may be completed within three years from the date the 
certificate is first issued for an engine family undergoing in-use 
testing.

[[Page 191]]

    (1) Test engines may be procured from sources not associated with 
the engine manufacturer or vehicle manufacturer, except that with prior 
approval of the Administrator, an engine manufacturer with annual sales 
of less than 50,000 engines may obtain in-use engines associated with 
itself or its vehicle manufacturer.
    (2) A test engine should have a maintenance history representative 
of actual in-use conditions.
    (i) A manufacturer may question the end user regarding the 
accumulated usage, maintenance, operating conditions, and storage of the 
test engines.
    (ii) Documents used in the procurement process may be maintained as 
required in Sec. 90.121.
    (3) Maintenance and testing of test engines. (i) The manufacturer 
may perform minimal set-to-spec maintenance on a test engine. 
Maintenance may include only that which is listed in the owner's 
instructions for engines with the amount of service and age of the 
acquired test engine.
    (ii) Documentation of all maintenance and adjustments may be 
maintained and retained as required by Sec. 90.121.
    (4) One valid emission test may be conducted for each in-use engine.
    (5) If a selected in-use engine fails to comply with any applicable 
certification emission standard, the manufacturer may determine the 
reason for noncompliance. The manufacturer may report all determinations 
for noncompliance in its annual in-use test result report as described 
below.
    (e) In-use test program reporting. The manufacturer may submit to 
the Administrator by January 30 of each calendar year all emission 
testing results generated from in-use testing. The following information 
may 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) 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 to a 
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 manufacture a 
permanent and legible label identifying each nonroad engine. The label 
must meet the following requirements:
    (1) Be attached in such a manner that it cannot be removed without 
destroying or defacing the label;
    (2) Be durable and readable for the entire engine life;
    (3) Be secured to an engine part necessary for normal engine 
operation 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 person 
after the engine is installed in the vehicle.
    (b) If the nonroad vehicle obscures the label on the engine, the 
nonroad vehicle manufacturer must attach a supplemental label so that 
this label is readily visible to the average person. The supplemental 
label must:
    (1) Be attached in such a manner that it cannot be removed without 
destroying or defacing the label;
    (2) Be secured to a vehicle part necessary for normal operation and 
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 engine 
manufacturer;
    (3) The statement, ``This (specify vehicle or engine, as applicable) 
is certified to operate on (specify operating fuel(s));''
    (4) Identification of the Exhaust Emission Control System 
(Abbreviations may be used and must conform to the nomenclature and 
abbreviations provided in the Society of Automotive Engineers procedure 
J1930, ``Electrical/

[[Page 192]]

Electronic Systems Diagnostic Terms, Definitions, Abbreviations and 
Acronyms,'' September 1991. This procedure has been incorporated by 
reference. See Sec. 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 REGS FOR [MODEL 
YEAR].'';
    (8) EPA standardized engine family designation;
    (9) Engine displacement [in cubic centimeters];
    (10) Other information concerning proper maintenance and use or 
indicating compliance or noncompliance with other standards may be 
indicated on the label;
    (11) For Phase 2 engines, the useful life category as determined by 
the manufacturer pursuant to Sec. 90.105. Such useful life category 
shall be shown by one of the following statements to be appended to the 
statement required under paragraph (c)(7) of this section:
    (i) ``EMISSIONS COMPLIANCE PERIOD: [useful life] HOURS''; or
    (ii) ``EMISSIONS COMPLIANCE PERIOD: CATEGORY [fill in C, B or A as 
indicated and appropriate from the tables in Sec. 90.105], REFER TO 
OWNER'S MANUAL FOR FURTHER INFORMATION'';
    (d) If there is insufficient space on the engine (or on the vehicle 
where a supplemental label is required under paragraph (b) of this 
section) to accommodate a label including all the information required 
in paragraph (c) of this section, the manufacturer may delete or alter 
the label as indicated in this paragraph. The information deleted 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 specified elsewhere on 
the engine.
    (2) Exclude the information required by paragraph (c)(6) of this 
section, if the date the engine was manufactured is stamped on the 
engine.
    (e) The Administrator may, upon request, waive or modify the label 
content 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 of paragraph 
(c)(11)(ii) of this section must provide in the documents intended to be 
conveyed to the ultimate purchaser, the statement:
    (1) For nonhandheld engines: The Emissions Compliance Period 
referred to on the Emissions Compliance label indicates the number of 
operating hours for which the engine has been shown to meet Federal 
emission requirements. For engines less than 66 cc, Category C=50 hours, 
B=125 hours, and A=300 hours. For engines equal to or greater than 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 referred 
to on the Emissions Compliance label indicates the number of operating 
hours for which the engine has been shown to meet Federal emission 
requirements. Category C=50 hours, B=125 hours, and A=300 hours.
    (3) The manufacturer must provide, in the same document as the 
statement in paragraph (f)(1) or (f)(2) of this section, a statement of 
the engine's displacement or an explanation of how to readily determine 
the engine's displacement. The Administrator may approve alternate 
language to the statement in paragraph (f)(1) or (f)(2) of this section, 
provided that the alternate language provides the ultimate purchaser 
with a clear description of the number of hours represented by each of 
the three letter categories for the subject engine's displacement.
    (g) Manufacturers may add appropriate features to prevent 
counterfeit labels. For example, manufacturers may include the engine's 
unique identification number on the label.

[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; 73 FR 59180, Oct. 8, 
2008]



Sec. 90.115  Requirement of certification--supplying production engines upon 

request.

    Upon the Administrator's request, the manufacturer must supply a 
reasonable number of production engines

[[Page 193]]

for testing and evaluation. These engines must be representative of 
typical production and supplied for testing at such time and place and 
for such reasonable periods 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 engine 
values and rounded to the nearest whole cubic centimeter in accordance 
with ASTM E29-93a. This procedure has been incorporated by reference. 
See Sec. 90.7.
    (1) Class I-A--nonhandheld equipment engines less than 66 cc in 
displacement;
    (2) Class I-B--nonhandheld equipment engines greater than or equal 
to 66 cc but less than 100 cc in displacement;
    (3) Class I--nonhandheld equipment engines greater than or equal to 
100 cc but less than 225 cc in displacement;
    (4) Class II--nonhandheld equipment engines greater than or equal to 
225 cc in displacement;
    (5) Class III--handheld equipment engines less than 20 cc in 
displacement,
    (6) Class IV--handheld equipment engines equal or greater than 20 cc 
but less than 50 cc in displacement, and
    (7) Class V--handheld equipment engines equal to or greater than 50 
cc in displacement.
    (c) The manufacturer's product line will be divided into groupings 
of engine families as specified by paragraph (d) of this section.
    (d) To be classed in the same engine family, engines must be 
identical in all of the following applicable respects:
    (1) The combustion cycle;
    (2) The cooling mechanism;
    (3) The cylinder configuration (inline, vee, opposed, bore spacings, 
and so forth);
    (4) The number of cylinders;
    (5) The engine class. Engines of different displacements that are 
within 15 percent of the largest displacement may be included within the 
same engine family as long as all the engines are in the same class;
    (6) The location of valves, where applicable, with respect to the 
cylinder (e.g. side valves or overhead valves);
    (7) The number of catalytic converters, location, volume and 
composition;
    (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 the 
respects listed in paragraph (d) of this section may be further divided 
into different engine families if the Administrator determines that they 
may be expected to have different emission characteristics. This 
determination is based upon the consideration of features such as:
    (1) [Reserved]
    (2) The combustion chamber configuration;
    (3) The intake and exhaust timing method of actuation (poppet valve, 
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 into engine 
families based upon the criteria listed in paragraph (d) of this 
section, the Administrator will establish families for those engines 
based upon the features most related to their emission characteristics.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15239, Mar. 30, 1999; 65 
FR 24308, Apr. 25, 2000; 73 FR 59180, Oct. 8, 2008]



Sec. 90.117  Certification procedure--test engine selection.

    (a) For Phase 1 engines, the manufacturer must select, from each 
engine family, a test engine that the manufacturer determines to be most 
likely to exceed the emission standard. For Phase 2 engines, the 
manufacturer must select, from each engine family, a test engine of a 
configuration that the manufacturer determines to be most likely to 
exceed the HC+NOX (NMHC+NOX) Family Emission Limit 
(FEL), or HC+NOX (NMHC+NOX) standard if no FEL is 
applicable.

[[Page 194]]

    (b) The test engine must be constructed to be representative of 
production 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 of 

deterioration factors.

    (a)(1) The test engine must be operated with all emission control 
systems operating properly for a period sufficient to stabilize 
emissions.
    (2) The period sufficient to stabilize emissions may not exceed 12 
hours.
    (b) No maintenance, other than recommended lubrication and filter 
changes, may be performed during service accumulation without the 
Administrator's approval.
    (c) Service accumulation is to be performed in a manner using good 
engineering judgment to ensure that emissions are representative of 
production engines.
    (d) The manufacturer must maintain, and provide to the Administrator 
if requested, records stating the rationale for selecting a service 
accumulation period less than 12 hours and records describing the method 
used to accumulate hours on the test engine(s).
    (e) For purposes of establishing whether Phase 2 engines comply with 
applicable exhaust emission standards or FELs, the test results for each 
regulated pollutant as measured pursuant to Sec. 90.119 shall be 
multiplied by the applicable df determined under Sec. 90.104 (g) or 
(h). The product of the two numbers shall be rounded to the same number 
of decimal places contained in the applicable standard, and compared 
against the applicable 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 the test engine 
using the specified test procedures and appropriate test cycle. All test 
results must be reported to the Administrator.
    (1) The test procedure to be used is detailed in Subpart E of this 
part.
    (i) Class I and II engines must use the test cycle that is 
appropriate for their application. Engines that operate only at 
intermediate speed must use Test Cycle A, which is described in table 2 
of appendix A to subpart E of this part. Engines that operate only at 
rated speed must use Test Cycle B, which is described in table 2 of 
appendix A to subpart E of this part. If an engine family includes 
engines 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 after 
certification, the engine must be tested using the most appropriate test 
cycle based on the engine's installed governor.
    (ii) Class I-A, III, IV, and V engines must use Test Cycle C 
described in subpart E of this part.
    (2) Emission test equipment provisions are described in subpart D of 
this part.
    (b) Administrator testing. (1) The Administrator may require that 
any one or more of the test engines be submitted to the Administrator, 
at such place or places as the Administrator may designate, for the 
purposes of conducting emission tests. The Administrator may specify 
that testing will be conducted at the manufacturer's facility, in which 
case instrumentation and equipment specified by the Administrator must 
be made available by the manufacturer for test operations. Any testing 
conducted at a manufacturer's facility must be scheduled by the 
manufacturer as promptly as possible.
    (2)(i) Whenever the Administrator conducts a test on a test engine, 
the results of that test will, unless subsequently invalidated by the 
Administrator, comprise the official data for the engine and the 
manufacturer's data will not be used in determining compliance with 
emission standards.
    (ii) Prior to the performance of such test, the Administrator may 
adjust or cause to be adjusted any adjustable parameter of the test 
engine which the Administrator has determined to be subject to 
adjustment for certification testing, to any setting within the 
physically adjustable range of that parameter, to determine whether such 
engine

[[Page 195]]

conforms to applicable emission standards.
    (iii) For those engine parameters which the Administrator has not 
determined to be subject to adjustment for certification testing, the 
test engine presented to the Administrator for testing will be 
calibrated within the production tolerances applicable to the 
manufacturer specification shown on the engine label or in the owner's 
manual, as specified in the application for certification.
    (c) Use of carryover test data. In lieu of testing, the manufacturer 
may submit, with the Administrator's approval, emission test data used 
to certify substantially similar engine families in previous years. This 
``carryover'' test data is only allowable if the data shows the test 
engine would fully comply with the emission standards for the applicable 
class.
    (d) Scheduled maintenance during testing. No scheduled maintenance 
may be performed during testing of the engine.
    (e) Unscheduled maintenance on test engines. (1) Manufacturers may 
not perform any unscheduled engine, emission control system, or fuel 
system adjustment, repair, removal, disassembly, cleaning, or 
replacement on a test engine without the advance approval of the 
Administrator.
    (2) The Administrator may approve unscheduled maintenance if:
    (i) A preliminary determination has been made that a part failure or 
system malfunction, or the repair of such failure or malfunction, does 
not render the engine unrepresentative of engines in use, and does not 
require direct access to the combustion chamber; and
    (ii) A determination has been made that the need for maintenance or 
repairs is indicated by an overt malfunction such as persistent misfire, 
engine stall, overheating, fluid leakage, or loss of oil pressure.
    (3) Emission measurements may not be used as a means of determining 
the need for unscheduled maintenance under paragraph (e)(2) of this 
section.
    (4) The Administrator must have the opportunity to verify the extent 
of any overt indication of part failure (for example, misfire, stall), 
or an activation of an audible and/or visual signal, prior to the 
manufacturer performing any maintenance related to such overt indication 
or signal.
    (5) Unless approved by the Administrator prior to use, engine 
manufacturers may not use any equipment, instruments, or tools to 
identify malfunctioning, maladjusted, or defective engine components 
unless the same or equivalent equipment, instruments, or tools are 
available at dealerships and other service outlets and are used in 
conjunction with scheduled maintenance on such components.
    (6) If the Administrator determines that part failure or system 
malfunction occurrence and/or repair rendered the engine 
unrepresentative of production engines, the engine cannot be used as a 
test engine.
    (7) Unless waived by the Administrator, complete emission tests are 
required before and after any engine maintenance which may reasonably be 
expected to affect emissions.
    (f) Engine failure. A manufacturer may not use as a test engine any 
engine which incurs major mechanical failure necessitating disassembly 
of the engine. This prohibition does not apply to failures which 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 Administrator may 
establish special test procedures for any engine that the Administrator 
determines is not susceptible to satisfactory testing under the 
specified test procedures set forth in subpart E of this part.
    (b)(1) Use of alternate test procedures by an engine manufacturer. A 
manufacturer may elect to use an alternate test procedure provided that 
it yields results equal to the results from the specified test procedure 
in subpart E, its use is approved in advance by the Administrator, and 
the basis for equivalent results with the specified test procedure is 
fully described in the manufacturer's application.
    (2) An engine manufacturer electing to use alternate test procedures 
is solely responsible for the results obtained.

[[Page 196]]

The Administrator may reject data generated under test procedures which 
do not correlate with data generated under the specified procedures.
    (3) A manufacturer may elect to use the test procedures in 40 CFR 
part 1065 as an alternate test procedure without getting advance 
approval by the Administrator or meeting the other conditions of 
paragraph (b)(1) of this section. The manufacturer must identify in its 
application for certification that the engines were tested using the 
procedures in 40 CFR part 1065. For any EPA testing with Phase 1 or 
Phase 2 engines, EPA will use the manufacturer's selected procedures for 
mapping engines, generating duty cycles, and applying cycle-validation 
criteria. For any other parameters, EPA may conduct testing using either 
of the specified procedures.
    (4) Where we specify mandatory compliance with the procedures of 40 
CFR part 1065, manufacturers may elect to use the procedures specified 
in 40 CFR part 86, subpart N, as an alternate test procedure without 
advance approval by the Administrator.
    (c) Optional procedures approved during Phase 1 can be carried over 
to Phase 2, following advance approval by the Administrator, to the 
extent the alternate procedure continues to yield results equal to the 
results from the specified test procedures in subpart E of this part.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15239, Mar. 30, 1999; 70 
FR 40448, July 13, 2005; 73 FR 59180, Oct. 8, 2008]



Sec. 90.121  Certification procedure--recordkeeping.

    (a) The engine manufacturer must maintain the following adequately 
organized records:
    (1) Copies of all applications filed with the Administrator;
    (2) A copy of all data obtained through the in-use testing program; 
and
    (3) A detailed history of each test engine used for certification 
including the following:
    (i) A description of the test engine's construction, including a 
general description of the origin and buildup of the engine, steps taken 
to insure that it is representative of production engines, description 
of components specially built for the test engine, and the origin and 
description of all emission-related components;
    (ii) A description of the method used for engine 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), and 
reason(s) for such maintenance;
    (iv) A description of all emission tests performed including routine 
and standard test documentation, as specified in subpart E of this part, 
date(s), and the purpose of each test;
    (v) A description of all tests performed to diagnose engine or 
emission control performance, giving the date and time of each and the 
reason(s) for the test; and
    (vi) A description of any significant event(s) affecting the engine 
during the period covered by the history of the test engine but not 
described by an entry under one of the previous paragraphs of this 
section.
    (b) Routine emission test data, such as those reporting test cell 
temperature and relative humidity at start and finish of test and raw 
emission results from each mode or test phase, must be retained for a 
period of one year after issuance of all certificates of conformity to 
which they relate. All other information specified in paragraph (a) of 
this section must be retained for a period of eight years after issuance 
of all certificates of conformity to which they relate.
    (c) Records may be kept in any format and on any media, provided 
that, at the Administrator's request, organized, written records in 
English are promptly supplied by the manufacturer.
    (d) The manufacturer must supply, at the Administrator's request, 
copies of any engine maintenance instructions or explanations issued by 
the manufacturer.



Sec. 90.122  Amending the application and certificate of conformity.

    (a) The engine manufacturer must notify the Administrator when 
either an engine is to be added to a certificate

[[Page 197]]

of conformity, an FEL is to be changed, or changes are to be made to a 
product line covered by a certificate of conformity. Notification occurs 
when the manufacturer submits an amendment to the original application 
prior to either producing such engines or making such changes to a 
product line.
    (b) The amendment must request that the engine manufacturer's 
existing certificate of conformity be amended and 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 test engine 
is or is not still appropriate.
    (c) The Administrator may require the engine manufacturer to perform 
tests on an engine representing the engine to be added or changed.
    (d) Decision by Administrator. (1) Based on the submitted amendment 
and data derived from such testing as the Administrator may require or 
conduct, the Administrator must determine whether the proposed addition 
or change would still be covered by the certificate of conformity then 
in effect.
    (2) If the Administrator determines that the new or changed 
engine(s) meets the requirements of this subpart and the Act, the 
appropriate certificate of conformity will be amended.
    (3) If the Administrator determines that the proposed amendment 
would not be covered by the certificate of conformity, the Administrator 
must provide a written explanation to the engine manufacturer of his or 
her decision not to amend the certificate. The manufacturer may request 
a hearing on a denial.
    (4) If the Administrator determines that a revised FEL meets the 
requirements of this subpart and the Act, the appropriate certificate of 
conformity will be amended, or a new certificate will be issued to 
reflect the revised FEL. The certificate of conformity is revised 
conditional upon compliance with Sec. 90.207(b).
    (e)(1) Alternatively, an engine manufacturer may make changes in or 
additions to production engines concurrently with amending the 
application for an engine family as set forth in paragraph (a) and (b) 
of this section. In these circumstances the manufacturer may implement 
the production change without EPA pre-approval provided the request for 
change together with all supporting emission test data, related 
engineering evaluations, and other supporting documentation is received 
at EPA within three working days of implementing the change. Such 
changes are ultimately still subject to the provisions of paragraphs (c) 
and (d) of this section.
    (2) If, after a review, the Administrator determines that additional 
testing or information is required, the engine manufacturer must provide 
required test data or information within 30 days or cease production of 
the affected engines.
    (3) If the Administrator determines that the affected engines do not 
meet applicable requirements, the Administrator will notify the engine 
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, the Administrator 
determines that the test engine does not meet applicable standards and 
requirements, the Administrator will notify the manufacturer in writing, 
setting forth the basis for this determination.
    (b) Notwithstanding the fact that engines described in the 
application may comply with all other requirements of this subpart, the 
Administrator may deny the issuance of or revoke a previously issued 
certificate of conformity if the Administrator finds any one of the 
following infractions to be substantial:
    (1) The engine manufacturer submits false or incomplete information;

[[Page 198]]

    (2) The engine manufacturer denies an EPA enforcement officer or EPA 
authorized representative the opportunity to conduct authorized 
inspections;
    (3) The engine manufacturer fails to supply requested information or 
amend its application to include all engines being produced;
    (4) The engine manufacturer renders inaccurate any test data which 
it submits or otherwise circumvents the intent of the Act or this part; 
or
    (5) The engine manufacturer denies an EPA enforcement officer or EPA 
authorized representative reasonable assistance (as defined in Sec. 
90.506).
    (c) If a manufacturer knowingly commits an infraction specified in 
paragraph (b)(1) or (b)(4) of this section or knowingly commits any 
fraudulent act which results in the issuance of a certificate of 
conformity, the Administrator may deem such certificate void ab initio.
    (d) When the Administrator denies or revokes a certificate of 
conformity, the engine manufacturer will be provided a written 
determination. The manufacturer may request a hearing on the 
Administrator's decision.
    (e) Any revocation of a certificate of conformity extends no further 
than to forbid the introduction into commerce of those engines 
previously covered by the certification which are still in the 
possession of the engine manufacturer, except in cases of such fraud or 
other misconduct that makes the certification void ab initio.



Sec. 90.124  Request for hearing.

    (a) An engine manufacturer may request a hearing on the 
Administrator's denial or revocation of a certificate of conformity.
    (b) The engine manufacturer's request must be filed within 30 days 
of the Administrator's decision, be in writing, and set forth the 
manufacturer's objections to the Administrator's decision and data to 
support the objections.
    (c) If, after review of the request and supporting data, the 
Administrator finds that the request raises a substantial and factual 
issue, the Administrator will provide the engine manufacturer a hearing.



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 a new 
engine or engine family subject to certification testing under this 
subpart must admit or cause to be admitted to any applicable facilities 
during operating hours any EPA enforcement officer or EPA authorized 
representative as provided in Sec. 90.506.



Sec. 90.127  Fuel line permeation from nonhandheld engines and equipment.

    The following permeation standards apply to new nonhandheld engines 
and equipment with respect to fuel lines:
    (a) Emission standards and related requirements. New nonhandheld 
engines and equipment with a date of manufacture of January 1, 2009 or 
later that run on a volatile liquid fuel (such as gasoline) must meet 
the emission standards specified in paragraph (a)(1) or (a)(2) of this 
section as follows:
    (1) New nonhandheld engines and equipment must use only fuel lines 
that meet a permeation emission standard of 15 g/m\2\/day when measured 
according to the test procedure described in 40 CFR 1060.515.
    (2) Alternatively, new nonhandheld engines and equipment must use 
only fuel lines that meet standards that apply for these engines and 
equipment in California for the same model year (see 40 CFR 1060.810). 
This may involve SHED-based measurements for equipment or testing with 
fuel lines alone. If this involves SHED-based measurements, all elements 
of the emission control system must remain in place for fully assembled 
engines and equipment.
    (3) The emission standards in this section apply with respect to 
discrete fuel line segments of any length. Compliance may also be 
demonstrated using aggregated systems that include multiple sections of 
fuel line with connectors, and fittings. The standard applies with 
respect to the total permeation emissions divided by the wetted internal 
surface area of the assembly.

[[Page 199]]

Where it is not practical to determine the wetted internal surface area 
of the assembly, the internal surface area per unit length of the 
assembly may be assumed to be equal to the ratio of internal surface 
area per unit length of the hose section of the assembly.
    (4) The emission standards in this section apply over a useful life 
of five years.
    (5) Starting with the 2010 model year, fuel lines must be labeled in 
a permanent and legible manner with one of the following approaches:
    (i) By meeting the labeling requirements that apply for these 
engines and equipment in California.
    (ii) By identifying the certificate holder's corporate name or 
trademark, or the fuel line manufacturer's corporate name or trademark, 
and the fuel line's permeation level. For example, the fuel line may 
identify the emission standard from this section, the applicable SAE 
classification, or the family number identifying compliance with 
California standards. A continuous stripe or other pattern may be added 
to help identify the particular type or grade of fuel line.
    (6) The requirements of this section do not apply to auxiliary 
marine engines.
    (b) Certification requirements. Fuel lines subject to the 
requirements in this section must be covered by a certificate of 
conformity. Fuel line manufacturers or equipment manufacturers may apply 
for certification. Certification under this section must be based on 
emission data using the appropriate procedures that demonstrate 
compliance with the standard, including any of the following:
    (1) Emission data demonstrating compliance with fuel line permeation 
requirements for model year 2008 equipment sold in California. You may 
satisfy this requirement by presenting an approved Executive Order from 
the California Air Resources Board showing that the fuel lines meet the 
applicable standards in California. This may include an Executive Order 
from the previous model year if a new certification is pending.
    (2) Emission data demonstrating a level of permeation control that 
meets any of the following industry standards:
    (i) R11A specifications in SAE J30 as described in 40 CFR 1060.810.
    (ii) R12 specifications in SAE J30 as described in 40 CFR 1060.810.
    (iii) Category 1 specifications in SAE J2260 as described in 40 CFR 
1060.810.
    (iv) Emission data demonstrating compliance with the fuel line 
permeation standards in 40 CFR 1051.110.
    (c) Prohibitions. (1) Except as specified in paragraph (c)(2) of 
this section, introducing engines or equipment into U.S. commerce 
without meeting all the requirements of this section violates Sec. 
90.1003(a)(1).
    (2) It is not a violation to introduce your engines into U.S. 
commerce if equipment manufacturers add fuel lines when installing your 
engines in their equipment. However, you must give equipment 
manufacturers any appropriate instructions so that fully assembled 
equipment will meet all the requirements in this section, as described 
in Sec. 90.128.

[73 FR 59180, Oct. 8, 2008]



Sec. 90.128  Installation instructions.

    (a) If you sell an engine for someone else to install in a piece of 
nonroad equipment, give the engine installer instructions for installing 
it consistent with the requirements of this part. Include all 
information necessary to ensure that an engine will be installed in its 
certified configuration. In particular, describe the steps needed to 
control evaporative emissions, as described in Sec. 90.127. This may 
include information related to the delayed requirements for small-volume 
equipment manufacturers.
    (b) You do not need installation instructions for engines you 
install in your own equipment.
    (c) Provide instructions in writing or in an equivalent format. For 
example, you may post instructions on a publicly available Web site for 
downloading or printing. If you do not provide the instructions in 
writing, explain in your application for certification how you will 
ensure that each installer is informed of the installation requirements.
    (d) Equipment manufacturers failing to follow the engine 
manufacturer's

[[Page 200]]

emission-related installation instructions will be considered in 
violation of Sec. 90.1003.

[73 FR 59181, Oct. 8, 2008]



Sec. 90.129  Fuel tank permeation from handheld engines and equipment.

    The permeation standards of this section apply to certain new 
handheld engines and equipment with respect to fuel tanks. For the 
purposes of this section, fuel tanks do not include fuel caps.
    (a) Emission standards and related requirements. (1) New handheld 
engines and equipment with a date of manufacture of January 1, 2009 or 
later that run on a volatile liquid fuel (such as gasoline) and have 
been certified to meet applicable fuel tank permeation standards in 
California must meet one of the following emission standards:
    (i) Engines and equipment must use only fuel tanks that meet a 
permeation emission standard of 2.0 g/m2/day when measured according to 
the applicable test procedure specified by the California Air Resources 
Board.
    (ii) Engines and equipment must use only fuel tanks that meet the 
fuel tank permeation standards in 40 CFR 1060.103.
    (iii) Engines and equipment must use only fuel tanks that meet 
standards that apply for these engines in California for the same model 
year. This may involve SHED-based measurements for equipment or testing 
with fuel tanks alone. If this involves SHED-based measurements, all 
elements of the emission-control system must remain in place for fully 
assembled engines and equipment.
    (2) Engine and equipment manufacturers may generate or use emission 
credits to show compliance with the requirements of this section under 
the averaging program as described in 40 CFR part 1054, subpart H.
    (3) The emission standards in this section apply over a useful life 
of two years.
    (4) Equipment must be labeled in a permanent and legible manner with 
one of the following approaches:
    (i) By meeting the labeling requirements that apply for equipment in 
California.
    (ii) By identifying the certificate holder's corporate name or 
trademark, or the fuel tank manufacturer's corporate name or trademark. 
Also include the family number identifying compliance with California 
standards or state: ``THIS FUEL TANK COMPLIES WITH U.S. EPA STANDARDS.'' 
This label may be applied to the fuel tank or it may be combined with 
the emission control information label required in Sec. 90.114. If the 
label information is not on the fuel tank, the label must include a part 
identification number that is also permanently applied to the fuel tank.
    (5) The requirements of this section do not apply to engines or 
equipment with structurally integrated nylon fuel tanks (as defined in 
40 CFR 1054.801).
    (b) Certification requirements. Fuel tanks subject to the 
requirements in this section must be covered by a certificate of 
conformity. Fuel tank manufacturers or equipment manufacturers may apply 
for certification. Certification under this section must be based on 
emission data using the appropriate procedures that demonstrate 
compliance with the standard. You may satisfy this requirement by 
presenting an approved Executive Order from the California Air Resources 
Board showing that the fuel tanks meet the applicable standards in 
California. This may include an Executive Order from the previous model 
year for cases where new certification based on carryover of emission 
data from the previous model year is pending.
    (c) Prohibitions. Introducing equipment into U.S. commerce without 
meeting all the requirements of this section violates Sec. 
90.1003(a)(1).

[73 FR 59181, Oct. 8, 2008]



   Subpart C_Certification Averaging, Banking, and Trading Provisions

    Source: 64 FR 15239, Mar. 30, 1999, unless otherwise noted.



Sec. 90.201  Applicability.

    (a) The requirements of this subpart C are applicable to all Phase 2 
spark-ignition engines subject to the provisions of subpart A of this 
part except

[[Page 201]]

as provided in Sec. 90.103(a). These provisions are not applicable to 
any Phase 1 engines. Participation in the averaging, banking and trading 
program is voluntary, but if a manufacturer elects to participate, it 
must do so in compliance with the regulations set forth in this subpart. 
The provisions of this subpart are applicable for HC+NOX 
(NMHC+NOX) emissions but not for CO emissions.
    (b) See 40 CFR 1054.740 for special provisions for using emission 
credits generated under this part 90 from Phase 2 engines to demonstrate 
compliance with engines certified under 40 CFR part 1054.
    (c) To the extent specified in 40 CFR part 60, subpart JJJJ, 
stationary engines certified under this part and subject to the 
standards of 40 CFR part 60, subpart JJJJ, may participate in the 
averaging, banking and trading program described in this subpart.

[73 FR 59181, Oct. 8, 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 between engine 
families within a given manufacturer's product line.
    Banking means the retention of emission credits by the manufacturer 
generating the emission credits or obtaining such credits through 
trading, for use in future model year averaging or trading as permitted 
in this part.
    Emission credits represent the amount of emission reduction or 
exceedance, by an engine family, below or above the applicable 
HC+NOX (NMHC+NOX) emission standard, respectively. 
FELs below the standard create ``positive credits,'' while FELs above 
the standard create ``negative credits.'' In addition, ``projected 
credits'' refer to emission credits based on the projected applicable 
production volume of the engine family. ``Reserved credits'' are 
emission credits generated within a model year waiting to be reported to 
EPA at the end of the model year. ``Actual credits'' refer to emission 
credits based on actual applicable production volume as contained in the 
end-of-year reports submitted to EPA. Some or all of these credits may 
be revoked if EPA review of the end-of-year reports or any subsequent 
audit action(s) reveals problems or errors of any nature with credit 
computations.
    Trading means the exchange of emission credits between 
manufacturers.



Sec. 90.203  General provisions.

    (a) The certification averaging, banking, and trading provisions for 
HC+NOX and NMHC+NOX emissions from eligible 
engines are described in this subpart.
    (b) An engine family may use the averaging, banking and trading 
provisions for HC+NOX and NMHC+NOX emissions if it 
is subject to regulation under this part with certain exceptions 
specified in paragraph (c) of this section. HC+NOX and 
NMHC+NOX credits shall be interchangeable subject to the 
limitations on credit generation, credit usage, and other provisions 
described in this subpart.
    (c) A manufacturer shall not include in its calculation of credit 
generation and may exclude from its calculation of credit usage, any new 
engines:
    (1) Which are intended to be exported, unless the manufacturer has 
reason or should have reason to believe that such engines have been or 
will be imported in a piece of equipment; or
    (2) Which are subject to state engine emission standards pursuant to 
a waiver granted by EPA under section 209(e) of the Act, unless the 
manufacturer demonstrates to the satisfaction of the Administrator that 
inclusion of these engines in averaging, banking and trading is 
appropriate.
    (d) For an engine family using credits, a manufacturer may, at its 
option, include its entire production of that engine family in its 
calculation of credit usage for a given model year.
    (e) (1) A manufacturer may certify engine families at Family 
Emission Limits (FELs) above or below the applicable emission standard 
subject to the limitation in paragraph (f) of this section, provided the 
summation of the manufacturer's projected balance of credits from all 
calculations and credit transactions for all engine classes in a given 
model year is greater than or equal to zero, as determined under

[[Page 202]]

Sec. 90.207. Notwithstanding the previous sentence, a manufacturer may 
project a negative balance of credits as allowed under Sec. 
90.207(c)(2).
    (2) A manufacturer of an engine family with an FEL exceeding the 
applicable emission standard must obtain positive emission credits 
sufficient to address the associated credit shortfall via averaging, 
banking, or trading.
    (3) A nonhandheld engine family with an FEL below the applicable 
emission standard may generate positive emission credits for averaging, 
banking, or trading, or a combination thereof. A handheld engine family 
with an FEL below the applicable emission standard may generate positive 
emission credits for averaging or trading. A handheld engine family 
meeting the requirements of Sec. 90.205(a)(4) or (5), whichever is 
applicable, may generate 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 the 
family in question if the manufacturer elects to recertify to a higher 
FEL. Credits may not be used to remedy a nonconformity determined by an 
SEA, except that the Administrator may permit the use of credits to 
address a nonconformity determined by an SEA where the use of such 
credits is one component of a multi-part remedy for the previously 
produced engines and the remedy, including the use of credits and the 
quantity of credits being used, is such that the Administrator is 
satisfied that the manufacturer has strong and lasting incentive to 
accurately verify its new engine emission levels and will set or reset 
its FELs for current and future model years so that production line 
compliance is assured.
    (5) In the case of a production line testing (PLT) failure pursuant 
to subpart H of this part, a manufacturer may revise the FEL based upon 
production line testing results obtained under subpart H of this part 
and upon Administrator approval pursuant to Sec. 90.122(d). The 
manufacturer may use credits to cover both past production and 
subsequent production of the engines as needed as allowed under Sec. 
90.207(c)(1).
    (f) No Phase 2 engine family may have a HC + NOX FEL that 
is greater than 32.2 g/kW-hr for Class I engines, 94 g/kW-hr for Class 
I-A engines, 50 g/kW-hr for Class I-B engines, 26.8 g/kW-hr for Class II 
engines, 336 g/kW-hr for Class III engines, 275 g/kW-hr for Class IV 
engines, or 186 g/kW-hr for Class V engines.
    (g)(1) Credits generated in a given model year by an engine family 
subject to the Phase 2 emission requirements may only be used in 
averaging, banking or trading, as appropriate, for any other engine 
family for which the Phase 2 requirements are applicable. Credits 
generated 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 that the 
production weighted average FEL for HC+NOX (including 
NMHC+NOX FELs), for all of the manufacturer's Class II 
engines, will not exceed 13.6 g/kW-hr for the 2005 model year, 13.1 g/
kW-hr for the 2006 model year and 12.6 g/kW-hr for the 2007 and each 
subsequent Phase 2 model year. Such demonstration shall be subject to 
the review and approval of the Administrator, shall be provided at the 
time of the first Class II certification of that model year and shall be 
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 270 days 
after the end of the model year. Except as provided in Sec. 90.207(c), 
an engine family generating negative credits for which the manufacturer 
does not obtain or generate an adequate number of positive credits by 
that date from the same or previous model year engines will violate the 
conditions of the certificate of conformity. The certificate of 
conformity may be voided ab initio 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 the 
applicable

[[Page 203]]

emission standard must be offset by positive credits from engine 
families having FELs below the applicable emission standard, as allowed 
under the provisions of this subpart. Averaging of credits in this 
manner is used to determine compliance under Sec. 90.207(b). A 
manufacturer may have a negative balance of credits as allowed under 
Sec. 90.207(c)(2).
    (b) Cross-class averaging of credits is allowed across all classes 
of nonroad spark-ignition engines at or below 19 kW.
    (c) Credits used in averaging for a given model year may be obtained 
from credits generated in the same model year by another engine family, 
credits banked in previous model years, or credits of the same or 
previous model year obtained through trading subject to the provisions 
of Sec. 90.205(a). Credits generated under the previously available 
``Optional transition year averaging, banking, and trading program for 
Phase 2 handheld engines'' of Sec. Sec. 90.212 through 90.220, since 
repealed, may also be used in averaging. The restrictions of this 
paragraph notwithstanding, credits from a given model year may be used 
to address credit needs of previous model year engines as allowed under 
Sec. 90.207(c).
    (d) The use of credits generated under the early banking provisions 
of Sec. 90.205(b) is subject to regulations under this 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 I engine 
family with an FEL below the applicable emission standard for a given 
model year may bank credits in that model year for use in averaging and 
trading. For new Class I engine families initially produced during the 
period starting August 1, 2003 through July 31, 2007, a manufacturer of 
a Class I engine family with an FEL below the applicable emission 
standard for a given model year may bank credits in that model year for 
use in averaging and trading.
    (2) Beginning with the 2000 model year, a manufacturer of a Class I-
A or Class I-B engine family with an FEL below the applicable emission 
standard for a given model year may bank credits in that model year for 
use in averaging and trading.
    (3) Beginning with the 2001 model year, a manufacturer of a Class II 
engine family with an FEL below the applicable emission standard for a 
given model year may bank credits in that model year for use in 
averaging and trading.
    (4) For the 2002 model year, a manufacturer of a Class III or Class 
IV engine family may bank credits for use in future model year averaging 
and trading from only those Class III or Class IV engine families with 
an FEL at or below 72 g/kW-hr. Beginning with the 2003 model year, a 
manufacturer of a Class III or Class IV engine family with an FEL below 
the applicable emission standard may generate credits for use in future 
model year averaging and trading.
    (5) Beginning with the 2004 model year, a manufacturer of a Class V 
engine family with an FEL below the applicable emission standard may 
generate credits for use in future model year averaging and trading.
    (6) Negative credits may be banked only according to the 
requirements under Sec. 90.207(c).
    (b)(1) For Class I engine families initially produced during the 
period 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 such Class I engines 
shall be calculated against a HC + NOX level of 20.5 g/kW-hr 
and may continue to be calculated against the 20.5 g/kW-hr level until 
August 1, 2007.
    (2) Beginning with the 1999 model year and prior to the applicable 
date listed in paragraph (a) of this section for Class II engines, a 
manufacturer may bank early credits for all Class II engines with 
HC+NOX FELs below 12.1 g/kW-hr. All early credits for Class 
II engines shall be calculated against a HC+NOX level of 18.0 
g/kW-hr.
    (3) Beginning with the 2000 model year and prior to the applicable 
date listed in paragraph (a) of this section for Class III engines, a 
manufacturer may bank early credits for all Class III engines with 
HC+NOX FELs below 72 g/

[[Page 204]]

kW-hr. All early credits for Class III engines shall be calculated 
against a HC+NOX level of 238 g/kW-hr.
    (4) Beginning with the 2000 model year and prior to the applicable 
date listed in paragraph (a) of this section for Class IV engines, a 
manufacturer may bank early credits for all Class IV engines with 
HC+NOX FELs below 72 g/kW-hr. All early credits for Class IV 
engines shall be calculated against a HC+NOX level of 196 g/
kW-hr.
    (5) Beginning with the 2000 model year and prior to the applicable 
date listed in paragraph (a) of this section for Class V engines, a 
manufacturer may bank early credits for all Class V engines with 
HC+NOX FELs below 87 g/kW-hr. All early credits for Class V 
engines shall be calculated against a HC+NOX level of 143 g/
kW-hr.
    (6) Engines certified under the early banking provisions of this 
paragraph are subject to all of the requirements of this part applicable 
to Phase 2 engines.
    (c) A manufacturer may bank actual credits only after the end of the 
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 certification process for 
banking will be considered reserved and may be redesignated for trading 
or averaging in the end-of-year report and final report.
    (d) Credits declared for banking from the previous model year that 
have not been reviewed by EPA may be used in averaging or trading 
transactions. However, such credits may be revoked at a later time 
following EPA review of the end-of-year report or any subsequent audit 
actions.

[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 with other 
engine manufacturers in trading, subject to the trading restriction 
specified in Sec. 90.207(c)(2).
    (b) Credits for trading can be obtained from credits banked in 
previous model years or credits generated during the model year of the 
trading transaction.
    (c) Traded credits can be used for averaging, banking, or further 
trading transactions, subject to Sec. 90.205(a).
    (d) Traded credits are subject to the limitations on use for past 
model years, as set forth in Sec. 90.204(c).
    (e) In the event of a negative credit balance resulting from a 
transaction, both the buyer and the seller are liable, except in cases 
involving fraud. Certificates of all engine families participating in a 
negative trade may be voided ab initio pursuant to Sec. 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 emission 

standards.

    (a) For each engine family, HC+NOX [NMHC+NOX] 
certification emission credits (positive or negative) are to be 
calculated according to the following equation and rounded to the 
nearest gram. Consistent units are to be used throughout the equation.

Credits = Productionx(Standard--FEL)xPowerxUseful lifexLoad Factor

Where:

Production = eligible production as defined in this part. Annual 
production projections are used to project credit availability for 
initial certification. Eligible production volume is used in determining 
actual credits for end-of-year compliance determination.
Standard = the current and applicable Small SI engine HC+NOX 
(NMHC+NOX) emission standard in grams per kilowatt hour as 
determined in Sec. 90.103 or, for early credits, the applicable 
emission level as specified in Sec. 90.205(b).
FEL = the family emission limit for the engine family in grams per 
kilowatt hour.
Power = the maximum modal power of the certification test engine, in 
kilowatts, as calculated from the applicable federal test procedure as 
described in this part.
Useful Life = the useful life in hours corresponding to the useful life 
category for which the engine family was certified.
Load Factor = 47 percent (i.e., 0.47) for Test Cycle A and Test Cycle B, 
and 85 percent (i.e., 0.85) for Test Cycle C. For approved alternate 
test procedures, the load factor must be calculated according to the 
following formula:

[[Page 205]]

[GRAPHIC] [TIFF OMITTED] TN05AP99.000

Where:

%MTT modei = percent of the maximum FTP torque for mode i.
%MTS modei = percent of the maximum FTP engine rotational 
speed for mode i.
WF modei = the weighting factor for mode i.

    (b) Manufacturer compliance with the emission standards is 
determined on a corporate average basis at the end of each model year. A 
manufacturer is in compliance when the sum of positive and negative 
emission credits it holds is greater than or equal to zero, except that 
the sum of positive and negative credits may be less than zero as 
allowed under paragraph (c) of this section.
    (c)(1) If, as a result of production line testing as required in 
subpart H of this part, an engine family is determined to be in 
noncompliance pursuant to Sec. 90.710, the manufacturer may raise its 
FEL for past and future production as necessary. Further, a manufacturer 
may carry a negative credit balance (known also as a credit deficit) for 
the subject class and model year and for the next three model years. The 
credit deficit may be no larger than that created by the nonconforming 
family. If the credit deficit still exists after the model year 
following the model year in which the nonconformity occurred, the 
manufacturer must obtain and apply credits to offset the remaining 
credit deficit at a rate of 1.2 grams for each gram of deficit within 
the next two model years. The provisions of this paragraph are subject 
to the limitations in paragraph (d) of this section.
    (c)(2) For model years 2004 through 2007, an engine manufacturer who 
certifies at least one Class V engine family in a given model year may 
carry forward a credit deficit for four model years, but must not carry 
such deficit into the fifth year, provided the deficit is attributable 
to negative credits from its Class V engine families, subject to the 
following provisions:
    (i) Credit deficits are permitted for model years 2004 through 2007 
but cannot occur for more than two consecutive model years for a given 
manufacturer;
    (ii)(A) If an engine manufacturer calculates that it has a credit 
deficit for a given model year, it must obtain sufficient credits from 
engine families produced by itself or another manufacturer in a model 
year no later than the fourth model year following the model year for 
which it calculated the credit deficit. (Example: if a manufacturer 
calculates that it has a credit deficit for the 2004 model year, it must 
obtain sufficient credits to offset that deficit from its own production 
or that of other manufacturers' 2008 or earlier model year engine 
families.);
    (B) An engine manufacturer carrying the deficit into the first model 
year following the year in which it was generated must generate or 
obtain credits to offset that deficit and apply them to the deficit at a 
rate of 1:1. An engine manufacturer carrying the deficit into the second 
and third model years must generate or obtain credits to offset that 
deficit and apply them to the deficit at a rate of 1.1:1 (i.e., deficits 
carried into the second and third model year must be repaid with credits 
equal to 110 percent of the deficit). Deficits carried into the fourth 
model year must be offset by credits at a rate of 1.2:1 (i.e., 120 
percent of the deficit);
    (iii) An engine manufacturer who has a credit deficit may use 
credits from any class of spark-ignition nonroad engines at or below 19 
kilowatts generated or obtained through averaging, banking or trading to 
offset the credit deficit; and,
    (iv) An engine manufacturer must not bank credits for future use or 
trade credits to another engine manufacturer during a model year in 
which it has generated a deficit or into which it has carried a deficit.
    (d) Regulations elsewhere in this part notwithstanding, if an engine 
manufacturer experiences two or more production line testing failures 
pursuant to the regulations in subpart H of this

[[Page 206]]

part in a given model year, the manufacturer may raise the FEL of 
previously produced engines only to the extent that such engines 
represent no more than 10 percent of the manufacturer's total eligible 
production for that model year, as determined on the date when the FEL 
is adjusted. For any additional engine families determined to be in 
noncompliance, the manufacturer must conduct offsetting projects 
approved 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 to Sec. 
90.708(c).
    (f) Except as allowed at paragraph (c) of this section, when a 
manufacturer is not in compliance with the applicable emission standard 
by the date 270 days after the end of the model year, considering all 
credit calculations and transactions completed by then, the manufacturer 
will be in violation of the regulations in this part and EPA may, 
pursuant to Sec. 90.123, void ab initio the certificates of engine 
families for which the manufacturer has not obtained sufficient positive 
emission credits.
    (g) Credit deficits. (1) Manufacturers must offset any deficits for 
a given model year by the reporting deadline for the fourth model year 
following the model year in which the deficits were generated as 
required in paragraph (c)(2) of this section. Manufacturers may offset 
deficits by generating credits or acquiring credits generated by another 
manufacturer.
    (2)(i) Failure to meet the requirements of paragraph (c)(2) of this 
section within the required timeframe for offsetting deficits will be 
considered to be a failure to satisfy the conditions upon which the 
certificate(s) was issued and the individual noncomplying engines not 
covered by the certificate must be determined according to this section.
    (ii) If deficits are not offset within the specified time period, 
the number of engines which could not be covered in the calculation to 
show compliance with the fleet average HC+NOX standard in the 
model year in which the deficit occurred and thus are not covered by the 
certificate must be calculated using the methodology described in 
paragraph (g)(2)(iii) of this section.
    (iii) EPA will determine the engines for which the condition on the 
certificate was not satisfied by designating engines in the Class V 
engine family with the highest HC+NOX FELs first and 
continuing progressively downward through the Class V engine families 
until a number of engines having a credit need, as calculated under 
paragraph (a) of this section, equal to the remaining deficit is 
reached. If this calculation determines that only a portion of engines 
in a Class V engine family contribute to the deficit situation, then EPA 
will designate a subset of actual engines in that engine family as not 
covered by the certificate, starting with the last engine produced and 
counting backwards. EPA may request additional information from the 
manufacturer that would help identify the actual engine not covered by 
the certificate.
    (iv) In determining the engine count, EPA will calculate the mass of 
credits based on the factors identified in paragraph (a) of this 
section.
    (3) If a manufacturer is purchased by, merges with or otherwise 
combines with another manufacturer, the manufacturer continues to be 
responsible for offsetting any deficits outstanding within the required 
time period. Any failure to offset the deficits will be considered to be 
a violation of paragraph (g)(1) of this section and may subject the 
manufacturer to an enforcement action for sale of engines not covered by 
a certificate, pursuant to paragraph (g)(2) of this section.
    (4) If a manufacturer that has a deficit ceases production of 
handheld engines, the manufacturer will be considered immediately in 
violation of paragraph (g)(1) of this section and may be subject to an 
enforcement action for sale of engines not covered by a certificate, 
pursuant to paragraph (g)(2) of this section
    (5) For purposes of calculating the statute of limitations, a 
violation of the requirements of paragraph (g)(1) of this section, a 
failure to satisfy the conditions upon which a certificate(s) was issued 
and hence a sale of engines not covered by the certificate, all

[[Page 207]]

occur upon the expiration of the deadline for offsetting deficits 
specified in paragraph (g)(1) of this section.

[64 FR 15239, Mar. 30, 1999; 64 FR 16526, Apr. 5, 1999, as amended 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 is 
requested will not, to the best of the manufacturer's belief, cause the 
manufacturer to be in noncompliance under Sec. 90.207(b) when all 
credits are calculated for the manufacturer's engine families.
    (2) Declare an FEL for each engine family for HC+NOX 
(NMHC+NOX). The FEL must have the same number of significant 
digits as the emission standard.
    (3) Indicate the projected number of credits generated/needed for 
this family; the projected applicable eligible annual production volume, 
and the values required to calculate credits as given in Sec. 90.207.
    (4) Submit calculations in accordance with Sec. 90.207 of projected 
emission credits (positive or negative) based on annual production 
projections for each family.
    (5) (i) If the engine family is projected to have negative emission 
credits, state specifically the source (manufacturer/engine family or 
reserved) of the credits necessary to offset the credit deficit 
according to projected annual production.
    (ii) If the engine family is projected to generate credits, state 
specifically (manufacturer/engine family or reserved) where the 
projected annual credits will be applied.
    (iii) The manufacturer may supply the information required by this 
section in the form of a spreadsheet detailing the manufacturer's annual 
production plans and the credits generated or consumed by each engine 
family.
    (b) All certificates issued are conditional upon manufacturer 
compliance with the provisions of this subpart both during and after the 
model year of production.
    (c) Failure to comply with all provisions of this subpart will be 
considered to be a failure to satisfy the conditions upon which the 
certificate was issued, and the certificate may be determined to be void 
ab initio pursuant to Sec. 90.123.
    (d) The manufacturer bears the burden of establishing to the 
satisfaction of the Administrator that the conditions upon which the 
certificate was issued were satisfied or waived.
    (e) Projected credits based on information supplied in the 
certification application may be used to obtain a certificate of 
conformity. However, any such credits may be revoked based on review of 
end-of-year reports, follow-up audits, and any other verification steps 
considered appropriate by the Administrator.



Sec. 90.209  Maintenance of records.

    (a) The manufacturer must establish, maintain, and retain the 
following adequately organized and indexed records for each engine 
family:
    (1) EPA engine family identification code;
    (2) Family Emission Limit (FEL) or FELs where FEL changes have been 
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 engines that 
constitute eligible production as defined in Sec. 90.3 for each FEL.
    (b) Any manufacturer producing an engine family participating in 
trading reserved credits must maintain the following records on an 
annual 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 in Sec. 
90.207;
    (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.
    (c) The manufacturer must retain all records required to be 
maintained under this section for a period of eight years from the due 
date for the end-of-model year report. Records may be retained as hard 
copy or reduced to

[[Page 208]]

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 is retained.
    (d) Nothing in this section limits the Administrator's discretion in 
requiring the manufacturer to retain additional records, or submit 
information not specifically required by this section, if otherwise 
permitted by law.
    (e) Pursuant to a request made by the Administrator, the 
manufacturer must submit to the Administrator the information that the 
manufacturer is required to retain.
    (f) EPA may, pursuant to Sec. 90.123, void ab initio a certificate 
of conformity for an engine family for which the manufacturer fails to 
retain the records required in this section or 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 to 
calculate credits as given in Sec. 90.207, and the number of credits 
generated/required. Manufacturers must also submit how and where credit 
surpluses were dispersed (or are to be banked) and/or how and through 
what means credit deficits were met. Copies of contracts related to 
credit trading must be included or supplied by the broker, if 
applicable. The report must include a calculation of credit balances to 
show that the credit summation for all engines is equal to or greater 
than zero (or less than zero in cases of negative credit balances as 
permitted in Sec. 90.207(c)). For model year 2005 and later, the report 
must include a calculation of the production weighted average 
HC+NOX (including NMHC+NOX) FEL for Class II 
engine families to show compliance with the provisions of Sec. 
90.203(g)(2).
    (b) The calculation of eligible production for end-of-year and final 
reports must be based on engines produced for the United States market, 
excluding engines which are subject to state emission standards pursuant 
to a waiver granted by EPA under section 209(e) of the Act. Upon advance 
written request, the Administrator will consider other methods to track 
engines for credit calculation purposes that provide high levels of 
confidence that eligible production or sales are accurately counted.
    (c)(1)End-of-year reports must be submitted within 90 days of the 
end of the model year to: Manager, Engine Compliance Programs Group 
(6403-J), U.S. Environmental Protection Agency, Washington, DC 20460.
    (2) Unless otherwise approved by the Administrator, final reports 
must 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 final 
reports in the specified time for any engines subject to regulation 
under this part is a violation of Sec. 90.1003(a)(2) and section 213(d) 
of the Clean Air Act for each engine.
    (e) A manufacturer generating credits for banking only who fails to 
submit end-of-year reports in the applicable specified time period (90 
days after the end of the model year) may not use the credits until such 
reports are received and reviewed by EPA. Use of projected credits 
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 corrected in the 
final report.
    (g) If EPA or the manufacturer determines that a reporting error 
occurred on an end-of-year or final report previously submitted to EPA 
under this section, the manufacturer's credits and credit calculations 
must be recalculated. Erroneous positive credits will be void except as 
provided in paragraph (h) of this section. Erroneous negative credit 
balances may be adjusted by EPA.
    (h) If EPA review determines a reporting error in the manufacturer's 
favor (that is, resulting in an increased credit balance) or if the 
manufacturer discovers such an error within 270 days of the end of the 
model year, EPA shall restore the credits for use by the manufacturer.

[[Page 209]]

    (i) For 2007 and later model years, include in your end-of-year and 
final reports an accounting to show a separate balance of emission 
credits for handheld and nonhandheld engines. Use your best judgment to 
differentiate your current balance of banked credits for handheld and 
nonhandheld engines. You may exchange handheld and nonhandheld credits 
to demonstrate compliance with the requirements of this part 90. 
However, emission credits you generate for banking under this part 90 
will be restricted for engines subject to the requirements of 40 CFR 
part 1054.

[64 FR 15239, Mar. 30, 1999, as amended at 73 FR 59181, Oct. 8, 2008]



Sec. 90.211  Request for hearing.

    An engine manufacturer may request a hearing on the Administrator's 
voiding of the certificate under Sec. Sec. 90.203(h), 90.206(e), 
90.207(f), 90.208(c), or 90.209(f), pursuant to Sec. 90.124. The 
procedures of Sec. 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 to 
perform exhaust emission tests on new nonroad spark-ignition engines and 
vehicles subject to the provisions of subpart A of this part. Certain 
text in this subpart is identified as pertaining to Phase 1 or Phase 2 
engines. Such text pertains only to engines of the specified Phase. If 
no indication of Phase is given, the text pertains to all engines, 
regardless of Phase.
    (b) Exhaust gases, either raw or dilute, are sampled while the test 
engine is operated using a steady state test cycle on an engine 
dynamometer. The exhaust gases receive specific component analysis 
determining concentration of pollutant. Emission concentrations are 
converted to mass emission rates in grams per hour based on either fuel 
flow, fuel flow and engine intake air flow, or exhaust volume flow. 
Weighted emission rates are reported as grams per brake-kilowatt hour 
(g/kW-hr). See subpart E of this part for a complete description of the 
test procedure.
    (c) Additional information about system design, calibration 
methodologies, and so forth, for raw gas sampling can be found in 40 CFR 
part 1065. Examples for system design, calibration methodologies, and so 
forth, for dilute exhaust gas sampling can be found in 40 CFR part 1065.
    (d) For Phase 2 Class I, Phase 2 Class I-B, and Phase 2 Class II 
natural gas fueled engines, use the procedures of 40 CFR part 1065 to 
measure nonmethane hydrocarbon (NMHC) exhaust emissions from Phase 2 
Class I, Phase 2 Class I-B, and Phase 2 Class II natural 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. The following 
definitions also apply to this subpart.
    Intermediate speed means the engine speed which is 85 percent of the 
rated speed.
    Natural gas means a fuel whose primary constituent is methane.
    Rated speed means the speed at which the manufacturer specifies 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 to this 
subpart.
    (b) The symbols in Table 1 in Appendix A of this subpart apply to 
this subpart.



Sec. 90.304  Test equipment overview.

    (a) All engines subject to this subpart are tested for exhaust 
emissions. Engines are operated on dynamometers meeting the 
specification given in Sec. 90.305.
    (b) The exhaust is tested for gaseous emissions using a raw gas 
sampling system as described in Sec. 90.414 or a constant volume 
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.

[[Page 210]]

    (c) Analyzers used are a non-dispersive infrared (NDIR) absorption 
type for carbon monoxide and carbon dioxide analysis; paramagnetic 
(PMD), zirconia (ZRDO), or electrochemical type (ECS) for oxygen 
analysis; a flame ionization (FID) or heated flame ionization (HFID) 
type for hydrocarbon analysis; and a chemiluminescent detector (CLD) or 
heated chemiluminescent detector (HCLD) for oxides of nitrogen analysis.



Sec. 90.305  Dynamometer specifications and calibration accuracy.

    (a) Dynamometer specifications. The dynamometer test stand and other 
instruments for measurement of speed and power output must meet the 
engine speed and torque accuracy requirements shown in Table 2 in 
Appendix A of this subpart. The dynamometer must be capable of 
performing the test cycle described in Sec. 90.410.
    (b) Dynamometer calibration accuracy. (1) The dynamometer test stand 
and other instruments for measurement of power output must meet the 
calibration frequency shown in Table 2 in Appendix A of this subpart.
    (2) A minimum of three calibration weights for each range used is 
required. The weights must be equally spaced and traceable to within 0.5 
percent of National Institute for Standards and Testing (NIST) weights. 
Laboratories located in foreign countries may certify calibration 
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 a 
distance into a torque must be used in a horizontal position for 
horizontal shaft dynamometers (five degrees). For 
vertical shaft dynamometers, a pulley system may be used to convert the 
dynamometer's horizontal loading into the vertical plane.
    (2) Calculate the indicated torque (IT) for each calibration weight 
to be used by:

IT=Moment Arm (meters) x Calibration Weight (Newtons)

    (3) Attach each calibration weight specified in Sec. 90.305(b)(2) 
to the moment arm at the calibration distance determined in paragraph 
(a)(2) of this section. Record the power 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 the calculated 
torque.
    (6) If the measured torque is not within two percent of the 
calculated torque, adjust or repair the system. Repeat steps in 
paragraphs (a)(1) through (a)(6) of this section with the adjusted or 
repaired system.
    (b) Option. A master load-cell or transfer standard may be used to 
verify the torque measurement system.
    (1) The master load-cell and read out system must be calibrated 
using 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 spaced torque 
values as indicated by the master load-cell for each in-use range used.
    (4) The in-use torque measurement must be within two percent of the 
torque measured by the master system for each load used.
    (5) If the in-use torque is not within two percent of the master 
torque, 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 flywheel torque 
transducer calibration, but may be used to span the transducer prior to 
engine testing.
    (d) Other engine dynamometer system calibrations such as speed are 
performed as specified by the dynamometer manufacturer or as dictated by 
good engineering practice.



Sec. 90.307  Engine cooling system.

    An engine cooling system is required with sufficient capacity to 
maintain the engine at normal operating temperatures as prescribed by 
the engine manufacturer. Auxiliary fan(s) may be used to maintain 
sufficient engine cooling during engine dynamometer operation.

[[Page 211]]



Sec. 90.308  Lubricating oil and test fuels.

    (a) Lubricating oil. Use the engine lubricating oil which meets the 
engine manufacturer's specifications for a particular engine and 
intended usage.
    (1) Manufacturers must use engine lubricants representative of 
commercially available engine lubricants.
    (2) For 2-stroke engines, the fuel/oil mixture ratio must be that 
which is recommended by the manufacturer.
    (b) Test Fuels--Certification. (1) The manufacturer must use 
gasoline having the specifications, or substantially equivalent 
specifications approved by the Administrator, as specified in Table 3 in 
Appendix A of this subpart for exhaust emission testing of gasoline 
fueled engines. As an option, manufacturers may use the fuel specified 
in 40 CFR part 1065, subpart H, for gasoline-fueled engines.
    (2) Alternative fuels, such as natural gas, propane, and methanol, 
used for exhaust emission testing and service accumulation of 
alternative fuel spark-ignition engines must be representative of 
commercially available alternative fuels.
    (i) The manufacturer shall recommend the alternative fuel to be used 
for certification testing and engine service accumulation in accordance 
with paragraph (b)(3) of this section.
    (ii) The Administrator shall determine the alternative fuel to be 
used for testing and engine service accumulation, taking into 
consideration 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 to show 
that only the designated fuel would be used in customer service; and
    (iii) Fuel specifications are approved in writing by the 
Administrator prior to the start of testing.
    (c) Test fuels--service accumulation and aging. Unleaded gasoline 
representative of commercial gasoline generally available through retail 
outlets must be used in service accumulation and aging for gasoline-
fueled spark-ignition engines. As an alternative, the certification test 
fuels specified under paragraph (b) of this section may be used for 
engine service accumulation and aging. Leaded fuel may not be used 
during service accumulation or aging.

[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 engine 
intake system (i.e., the air cleaner, for most engines.)
    (b) The temperature measurements must be accurate to within 2 [deg]C.



Sec. 90.310  Engine intake air humidity measurement.

    This section refers to engines which are supplied with intake air 
other than the ambient air in the test cell (i.e., air which has been 
pumped directly to the engine air intake system). For engines which use 
ambient test cell air for the engine intake air, the ambient test cell 
humidity measurement may be used.
    (a) Humidity conditioned air supply. Air that has had its absolute 
humidity altered is considered humidity-conditioned air. For this type 
of intake air supply, the humidity measurements must be made within the 
intake air supply system and after the humidity conditioning has taken 
place.
    (b) Unconditioned air supply. Humidity measurements in unconditioned 
intake air supply systems must be made in the intake air stream entering 
the supply system. Alternatively, the humidity measurements can be 
measured within the intake air supply stream.



Sec. 90.311  Test conditions.

    (a) General requirements. (1) Ambient temperature levels encountered 
by the test engine throughout the test sequence may not be less than 20 
[deg]C or more than 30 [deg]C. All engines must be installed on the test 
bed at their design installation angle to prevent abnormal fuel 
distribution.
    (2) Calculate all volumes and volumetric flow rates at standard 
conditions for temperature and pressure, and use these conditions 
consistently throughout all calculations. Standard conditions for 
temperature and pressure are 25 [deg]C and 101.3 kPa.

[[Page 212]]

    (b) Engine test conditions. Measure the absolute temperature 
(designated as T and expressed in Kelvin) of the engine air at the inlet 
to the engine and the dry atmospheric pressure (designated as 
ps and expressed in kPa), and determine the parameter f 
according to the following provisions for naturally aspirated engines:
[GRAPHIC] [TIFF OMITTED] TR03JY95.009


For a certification test to be recognized as valid, the parameter 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. The 
expiration date stated by the gas supplier must be recorded.
    (b) Pure gases. The required purity of the gases is defined by the 
contamination limits specified in this subsection. The following gases 
must be available for operation:
    (1) Purified nitrogen, also refered to as ``zero-grade nitrogen'' 
(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 ``zero air'' 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 values are to be 
derived from NIST ``Standard Reference Materials'' (SRM's) and are to be 
single blends as specified in this subsection.
    (2) Mixtures of gases having the following chemical compositions 
must be available:

C3 H8 and purified synthetic air and/or 
    C3 H8 and purified nitrogen;
CO and purified nitrogen;
NOX and purified nitrogen (the amount of NO2 
    contained in this calibration gas must not exceed five percent of 
    the NO content);
CO2 and purified nitrogen.

    Note: For the HFID or FID the manufacturer may choose to use as a 
diluent span gas and the calibration gas either purified synthetic air 
or purified nitrogen. Any mixture of C3 H8 and 
purified synthetic air which contains a concentration of propane higher 
than what a gas supplier considers to be safe may be substituted with a 
mixture of C3 H8 and purified nitrogen. However, 
the manufacturer must be consistent in the choice of diluent (zero air 
or purified nitrogen) between the calibration and span gases. If a 
manufacturer chooses to use C3 H8 and purified 
nitrogen for the calibration gases, then purified nitrogen must be the 
diluent for the span gases.

    (3) The true concentration of a span gas must be within two percent of the NIST gas standard. The true 
concentration of a calibration gas must be within one percent of the NIST gas standard. The use of 
precision blending devices (gas dividers) to obtain the required 
calibration gas concentrations is acceptable. Give all concentrations of 
calibration gas on a volume basis (volume percent or volume ppm).
    (4) The gas concentrations used for calibration and span may also be 
obtained by means of a gas divider, diluting either with purified 
N2 or with purified synthetic air. The accuracy of the mixing 
device must be such that the concentration of the diluted gases may be 
determined to within two percent.
    (d) Oxygen interference check gases must contain propane with 350 
ppmC 75 ppmC hydrocarbon. Determine the 
concentration value to calibration gas tolerances by chromatographic 
analysis of total hydrocarbons plus impurities or by dynamic blending. 
For gasoline fueled engines, oxygen contentration must be between 0 and 
1 percent O2. Nitrogen must be the predominant diluent with 
the balance oxygen.
    (e) Fuel for the hydrocarbon flame ionization detector (HC-FID) must 
be a blend of 40 two percent hydrogen with the 
balance being helium. The mixture must contain less than one ppm 
equivalent carbon response; 98 to 100 percent hydrogen fuel may be used 
with advance approval of the Administrator.
    (f) Hydrocarbon analyzer burner air. The concentration of oxygen 
must be within one mole percent of the oxygen

[[Page 213]]

concentration of the burner air used in the latest oxygen interference 
check (percent O2 I), see Sec. 90.316(d). If the difference 
in oxygen concentration is greater than one mole percent, then the 
oxygen interference must be checked and, if necessary, the analyzer 
adjusted to meet the percent O2 I requirements. The burner 
air must contain less than two ppmC hydrocarbon.



Sec. 90.313  Analyzers required.

    (a) Analyzers. Analyze measured gases with the following 
instruments:
    (1) Carbon monoxide (CO) analysis. (i) The carbon monoxide analyzer 
shall 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 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, the 
hydrocarbon analyzer shall be of the heated flame ionization (HFID) 
type. For constant volume sampling, the hydrocarbon analyzer may be of 
the flame ionization (FID) type or of the heated flame ionization (HFID) 
type.
    (ii) For the HFID system, if the temperature of the exhaust gas at 
the 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 wall 
temperature of 190 [deg]C 11 [deg]C. If the 
temperature of the exhaust gas at the sample probe is above 190 [deg]C, 
the temperature of the valves, pipe work, and so forth, must be 
controlled so 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 continuous operation at 
temperatures to 200 [deg]C. It must by capable of maintaining 
temperature within 5.5 [deg]C of the set point.
    (iv) Fuel and burner air must conform to the specifications in Sec. 
90.312.
    (v) The percent of oxygen interference must be less than three 
percent, 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 NO 
converter efficiency must be at least 90 percent.
    (B) An ice bath located after the NOX converter 
(optional).
    (C) A chemiluminescent detector (CLD) or heated chemiluminescent 
detector (HCLD).
    (ii) The quench interference must be less than 3.0 percent as 
measured in Sec. 90.325.
    (b) Other analyzers and equipment. Other types of analyzers and 
equipment may be used if shown to yield equivalent results and if 
approved in advance by the Administrator.
    (c) The following requirements must be incorporated as indicated in 
systems used for testing under this subpart.
    (1) Carbon monoxide and carbon dioxide measurements must be made on 
a dry basis (for raw exhaust measurement only). Specific requirements 
for the means of drying the sample can be found in Sec. 90.313(e).
    (2) Calibration or span gases for the NOX measurement 
system must pass through the NO2 to NO converter.
    (d) The electromagnetic compatibility (EMC) of the equipment must be 
on a level as to minimize additional errors.
    (e) Gas drying. Chemical dryers are not an acceptable method of 
removing water from the sample. Water removal by condensation is 
acceptable. If water is removed by condensation, the sample gas 
temperature or sample dew point must be monitored either within the 
water trap or downstream and its temperature must not exceed 7 [deg]C. A 
water trap performing this function is an acceptable method. Means other 
than condensation may be used only with prior approval from the 
Administrator.



Sec. 90.314  Analyzer accuracy and specifications.

    (a) Measurement and accuracy--general. The analyzers must have a 
measuring range which allows them to

[[Page 214]]

measure the concentrations of the exhaust gas sample pollutants with the 
accuracies shown in Table 2 in Appendix A of this subpart.
    (1) Precision. The precision of the analyzer must be, at worst, two 
percent of full-scale concentration for each range used. 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 and 
calibration or span gases over any 10-second period must not exceed two 
percent of full-scale chart deflection on all ranges used.
    (3) Zero drift. The analyzer zero-response drift during a one-hour 
period must be less than two percent of full-scale chart deflection on 
the lowest range used. The zero-response is defined as the mean response 
including noise to a zero-gas during a 30-second time interval.
    (4) Span drift. The analyzer span drift during a one-hour period 
must be less than two percent of full-scale chart deflection on the 
lowest range used. The analyzer span is defined as the difference 
between the span-response and the zero-response. The span-response is 
defined as the mean response including noise to a span gas during a 30-
second time interval.
    (b) Operating procedure for analyzers and sampling system. Follow 
the start-up and operating instructions of the instrument manufacturer 
or use good engineering practice. Adhere to the minimum requirements 
given in Sec. Sec. 90.316 through 90.325 and Sec. 90.409.
    (c) Emission measurement accuracy--Bag sampling. (1) Good 
engineering practice dictates that exhaust emission sample analyzer 
readings below 15 percent of full-scale chart deflection should 
generally not be used.
    (2) Some high resolution read-out systems, such as computers, data 
loggers, and so forth, can provide sufficient accuracy and resolution 
below 15 percent of full scale. Such systems may be used provided that 
additional calibrations are made to ensure the accuracy of the 
calibration curves. The following procedure for calibration below 15 
percent of full scale may be used:

    Note to paragraph (c): If a gas divider is used, the gas divider 
must conform to the accuracy requirements as follows. The use of 
precision blending devices (gas dividers) to obtain the required 
calibration gas concentrations is acceptable, provided that the blended 
gases are accurate to within 1.5 percent of NIST 
gas standards or other gas standards which have been approved by the 
Administrator. This accuracy implies that primary gases used for 
blending must be ``named'' to an accuracy of at least one percent, traceable to NIST or other approved gas 
standards.

    (i) Span the full analyzer range using a top range calibration gas. 
The span gases must be accurate to within two 
percent of NIST gas standards or other gas standards which have been 
approved by the Administrator.
    (ii) Generate a calibration curve according to, and meeting the 
requirements, of the sections describing analyzer calibrations which are 
found in Sec. Sec. 90.316, 90.317, 90.318, and 90.320.
    (iii) Select a calibration gas (a span gas may be used for 
calibrating the CO2 analyzer) with a concentration between 
the two lowest non-zero gas divider increments. This gas must be 
``named'' to an accuracy of one percent of NIST 
gas standards or other standards approved by the Administrator.
    (iv) Using the calibration curve fitted to the points generated in 
paragraphs (c)(2) (i) and (ii) of this section, check the concentration 
of the gas selected in paragraph (c)(2)(iii) of this section. The 
concentration derived from the curve must be within 2.3 percent (2.8 percent for 
CO2 span gas) of the gas's original named concentration.
    (v) Provided the requirements of paragraph (c)(2)(iv) of this 
section are met, use the gas divider with the gas selected in paragraph 
(c)(2)(iii) of this section and determine the remainder of the 
calibration points. Fit a calibration curve per Sec. Sec. 90.316, 
90.317, 90.318, and 90.320 of this chapter for the entire analyzer 
range.
    (d) Emission measurement accuracy--continuous sampling. Analyzers 
used for continuous analysis must be operated such that the measured 
concentration falls between 15 and 100 percent of full-scale chart 
deflection. Exceptions to these limits are:
    (1) The analyzer's response may be less than 15 percent or more than 
100

[[Page 215]]

percent of full scale if automatic range change circuitry is used and 
the limits for range changes are between 15 and 100 percent of full-
scale chart deflection;
    (2) The analyzer's response may be less than 15 percent of full 
scale if:
    (i) The alternative in paragraph (c)(2) of this section is used to 
ensure that the accuracy of the calibration curve is maintained 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 integrated 
chart deflection value for the cycle is greater than 15 percent of full 
scale; or
    (iv) The contribution of all data read below the 15 percent level is 
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 according to the 
recommendations of the manufacturer. If not specified, a minimum of two 
hours should be allowed for warming up the analyzers.
    (b) NDIR, FID, and HFID analyzer. Tune and maintain the NDIR 
analyzer per the instrument manufacturer recommendations or 
specifications or using good engineering practice. The combustion flame 
of the FID or HFID analyzer must be optimized in order to meet the 
specifications in Sec. 90.316(b).
    (c) Zero setting and calibration. Using purified synthetic air (or 
nitrogen), set the CO, CO2, NOX. and HC analyzers 
at zero. Connect the appropriate calibrating gases to the analyzers and 
record the values. Use the same gas flow rates and pressure as when 
sampling exhaust.
    (d) Rechecking of zero setting. Recheck the zero setting and, if 
necessary, repeat the procedure described in paragraph (c) of this 
section.



Sec. 90.316  Hydrocarbon analyzer calibration.

    (a) Calibrate the FID and HFID hydrocarbon analyzer as described in 
this section. Operate the HFID to a set point 5.5 
[deg]C between 185 and 197 [deg]C.
    (b) Initial and periodic optimization of detector response. Prior to 
initial use and at least annually thereafter, adjust the FID and HFID 
hydrocarbon analyzer for optimum hydrocarbon response as specified in 
this paragraph. Alternative methods yielding equivalent results may be 
used, if approved in advance by the Administrator.
    (1) Follow good engineering practices for initial instrument start-
up and basic operating adjustment using the appropriate fuel (see Sec. 
90.312) and purified synthetic air or zero-grade nitrogen.
    (2) Use of one of the following procedures is required for FID or 
HFID optimization:
    (i) The procedure outlined in Society of Automotive Engineers (SAE) 
paper No. 770141, ``Optimization of a Flame Ionization Detector for 
Determination of Hydrocarbon in Diluted Automotive Exhausts;'' author, 
Glenn D. Reschke. This procedure has been incorporated by reference. See 
Sec. 90.7.
    (ii) The HFID optimization procedures outlined in 40 CFR part 1065, 
subpart D.
    (iii) Alternative procedures may be used if approved in advance by 
the Administrator.
    (3) After the optimum flow rates have been determined, record them 
for future reference.
    (c) Initial and periodic calibration. Prior to initial use and 
monthly thereafter, or within one month prior to the certification test, 
the FID or HFID hydrocarbon analyzer must be calibrated on all normally 
used instrument ranges using the steps in this paragraph. Use the same 
flow rate and pressures as when analyzing samples. Introduce calibration 
gases directly at the analyzer. An optional 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 or 
zero-grade nitrogen.
    (3) Calibrate on each used operating range with calibration gases 
having nominal concentrations between 10 and 90 percent of that range. A 
minimum of six evenly spaced points covering at least 80 percent of the 
10 to 90 range (64 percent) is required (see following table).

[[Page 216]]



------------------------------------------------------------------------
      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 range 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 at each data 
point, calculate concentration values by use of a single calibration 
factor for that range. If the deviation exceeds two percent at any 
point, use the best-fit non-linear equation which represents the data to 
within two percent of each test point to determine concentration.
    (d) Oxygen interference optimization. Prior to initial use and 
monthly thereafter, perform the oxygen interference optimization as 
described in this paragraph. Choose a range where the oxygen 
interference check gases will fall in the upper 50 percent. Conduct the 
test, as outlined in this paragraph, with the oven temperature set as 
required by the instrument manufacturer. Oxygen interference check gas 
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 percent 
of full scale repeat paragraphs (d)(1) and (d)(2) of this section to 
correct the problem.
    (4) Introduce the five percent and 10 percent oxygen interference 
check gases.
    (5) Recheck the zero response. If it has changed by more than one percent of full scale, repeat the test.
    (6) Calculate the percent of oxygen interference (designated as 
percent O2 I) for each mixture in paragraph (d)(4) of this 
section according to the following equation.
[GRAPHIC] [TIFF OMITTED] TR03JY95.010

Where:

A = hydrocarbon concentration (ppmC) of the span gas used in paragraph 
(d)(2) of this section.
B = hydrocarbon concentration (ppmC) of the oxygen interference check 
gases used in paragraph (d)(4) of this section.

    (7) The percent of oxygen interference (designated as percent 
O2 I) must be less than three percent 
for all required 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's 
specifications, repeating paragraphs (d)(1) through (d)(7) of this 
section for each flow.
    (9) If the oxygen interference is greater than the specification 
after adjusting the air flow, vary the fuel flow and thereafter the 
sample flow, repeating paragraphs (d)(1) through (d)(7) of this section 
for each new setting.
    (10) If the oxygen interference is still greater than the 
specifications, repair or replace the analyzer, FID fuel, or burner air 
prior to testing. Repeat this section with the repaired or replaced 
equipment or gases.

[60 FR 34598, July 3, 1995, as amended at 70 FR 40448, July 13, 2005]

[[Page 217]]



Sec. 90.317  Carbon monoxide analyzer calibration.

    (a) Calibrate the NDIR carbon monoxide analyzer as described in this 
section.
    (b) Initial and periodic interference. Prior to its initial use and 
annually thereafter, check the NDIR carbon monoxide analyzer for 
response to water vapor and CO2.
    (1) Follow good engineering practices for instrument start-up and 
operation. Adjust the analyzer to optimize performance on the most 
sensitive range to be used.
    (2) Zero the carbon monoxide analyzer with either purified synthetic 
air or zero-grade nitrogen.
    (3) Bubble a mixture of three percent CO2 in 
N2 through water at room temperature and record analyzer 
response.
    (4) An analyzer response of more than one percent of full scale for 
ranges above 300 ppm full scale or more than three ppm on ranges below 
300 ppm full scale requires corrective action. (Use of conditioning 
columns is one form of corrective action which may be taken.)
    (c) Initial and periodic calibration. Prior to its initial use and 
monthly thereafter, or within one month prior to the certification test, 
calibrate the NDIR carbon monoxide analyzer.
    (1) Adjust the analyzer to optimize performance.
    (2) Zero the carbon monoxide analyzer with either purified synthetic 
air or zero-grade nitrogen.
    (3) Calibrate on each used operating range with carbon monoxide-in-
N2 calibration gases having nominal concentrations between 10 
and 90 percent of that range. A minimum of six evenly spaced points 
covering at least 80 percent of the 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 range covered, a
                                             minimum of six points are
                                             needed.
------------------------------------------------------------------------


Additional calibration points may be generated. For each range 
calibrated, if the deviation from a least-squares best-fit straight line 
is two percent or less of the value at each data point, calculate 
concentration values by use of a single calibration factor for that 
range. If the deviation exceeds two percent at any point, use the best-
fit non-linear equation which represents the data to within two percent 
of each test point to determine concentration.



Sec. 90.318  Oxides of nitrogen analyzer calibration.

    (a) Calibrate the chemiluminescent oxides of nitrogen analyzer as 
described in this section.
    (b) Initial and Periodic Interference: Prior to its initial use and 
monthly thereafter, or within one month prior to the certification test, 
check the chemiluminescent oxides of nitrogen analyzer for 
NO2 to NO converter efficiency. Figure 1 in Appendix 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 and 
operation. Adjust the analyzer to optimize performance.
    (2) Zero the oxides of nitrogen analyzer with purified synthetic air 
or zero-grade nitrogen.
    (3) Connect the outlet of the NOX generator to the sample 
inlet of the oxides of nitrogen analyzer which has been set to the most 
common operating range.
    (4) Introduce into the NOX generator analyzer-system an 
NO-in-nitrogen (N2) mixture with an NO concentration equal to 
approximately 80 percent of the most common operating range. The 
NO2 content of the gas mixture must be less than five percent 
of the NO concentration.
    (5) With the oxides of nitrogen analyzer in the NO mode, record the 
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 NO 
indicated by the analyzer is about 10 percent less than indicated in 
paragraph (b)(5) of this section. Record the concentration of NO in this 
NO+O2 mixture as value ``c.''
    (7) Switch the NOX generator to the generation mode and 
adjust the generation rate so that the NO measured on

[[Page 218]]

the analyzer is 20 percent of that measured in paragraph (b)(5) of this 
section. 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 NOX 
mode and measure total NOX. Record this value as ``a.''
    (9) Switch off the NOX generator but maintain gas flow 
through the system. The oxides of nitrogen analyzer will indicate the 
NOX in the NO+O2 mixture. Record this value as 
``b''.
    (10) Turn off the NOX generator O2 (or air) 
supply. The analyzer will now indicate the NOX in the 
original NO-in-N2 mixture. This value should be no more than 
five percent above the value indicated in paragraph (b)(4) of this 
section.
    (11) Calculate the efficiency of the NOX converter by 
substituting 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 action 
will be required.
    (c) Initial and periodic calibration. Prior to its initial use and 
monthly thereafter, or within one month prior to the certification test, 
calibrate the chemiluminescent oxides 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 purified synthetic air 
or zero-grade nitrogen.
    (3) Calibrate on each normally used operating range with NO-in-
N2 calibration gases having nominal concentrations between 10 
and 90 percent of that range. A minimum of six evenly spaced points 
covering at least 80 percent of the 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 range covered, a
                                             minimum of six points are
                                             needed.
------------------------------------------------------------------------


Additional calibration points may be generated. For each range 
calibrated, if the deviation from a least-squares best-fit straight line 
is two percent or less of the value at each data point, calculate 
concentration values by use of a single calibration factor for that 
range. If the deviation exceeds two percent at any point, use the best-
fit non-linear equation which represents the data to within two percent 
of each test point to determine concentration.
    (d) The initial and periodic interference, system check, and 
calibration 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, July 13, 2005]



Sec. 90.319  NOX converter check.

    (a) The efficiency of the converter used for the conversion of 
NO2 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 of this 
subpart (see also Sec. 90.318 of this chapter) and the procedure 
described in paragraphs (a)(2) through (a)(8) of this section, test the 
efficiency of converters by means of an ozonator.
    (2) Calibrate the HCLD or CLD in the most common operating range 
following the manufacturer's specifications using zero and span gas (the 
NO content of which must amount to about 80 percent of the operating 
range and the NO2 concentration of the gas mixture less than 
five percent of the NO concentration). The NOX analyzer must 
be in the NO mode so that the span gas does not pass through the 
converter. Record the indicated concentration.

[[Page 219]]

    (3) Calculate the efficiency of the NOX converter as 
described in Sec. 90.318(b).
    (4) Via a T-fitting, add oxygen continuously to the gas flow until 
the concentration indicated is about 20 percent less than the indicated 
calibration concentration given in paragraph (a)(2) of this section. 
Record the indicated concentration ``c.'' The ozonator is kept 
deactivated throughout the process.
    (5) Activate the ozonator to generate enough ozone to bring the NO 
concentration down to about 20 percent (minimum 10 percent) of the 
calibration concentration given in paragraph (a)(2) of this section. 
Record the indicated concentration ``d.''

    Note: If, with the analyzer in the most common range, the 
NOX converter can not give a reduction from 80 percent to 20 
percent, then use the highest range which will give the reduction.

    (6) Switch the NO analyzer to the NOX mode which means 
that 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 in 
paragraph (a)(6) of this section passes through the converter into the 
detector. Record the indicated concentration ``b.''
    (8) Switched to NO mode with the ozonator deactivated, the flow of 
oxygen or purified synthetic air is also shut off. The NOX 
reading of the analyzer may not deviate by more than five percent 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 each 
calibration of the NOX analyzer.
    (c) The efficiency of the converter may not be less than 90 percent.



Sec. 90.320  Carbon dioxide analyzer calibration.

    (a) Prior to its initial use and monthly thereafter, 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 and 
operation. Adjust the analyzer to optimize performance.
    (2) Zero the carbon dioxide analyzer with either purified synthetic 
air or zero-grade nitrogen.
    (3) Calibrate on each normally used operating range with carbon 
dioxide-in-N2 calibration or span gases having nominal 
concentrations between 10 and 90 percent of that range. A minimum of six 
evenly spaced points covering at least 80 percent of the 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 range covered, a
                                             minimum of six points are
                                             needed.
------------------------------------------------------------------------


Additional calibration points may be generated. For each range 
calibrated, if the deviation from a least-squares best-fit straight line 
is two percent or less of the value at each data point, calculate 
concentration values by use of a single calibration factor for that 
range. If the deviation exceeds two percent at any point, use the best-
fit non-linear equation which represents the data to within two percent 
of each test point to determine concentration.
    (b) The initial and periodic interference, system check, and 
calibration test procedures specified in 40 CFR part 1065, subparts C 
and D, may be used in lieu of the procedures in this section.

[60 FR 34598, July 3, 1995, as amended at 70 FR 40449, July 13, 2005]



Sec. 90.321  NDIR analyzer calibration.

    (a) Detector optimization. If necessary, follow the instrument 
manufacturer's instructions for initial start-up and basic operating 
adjustments.
    (b) Calibration curve. Develop a calibration curve for each range 
used as follows:
    (1) Zero the analyzer.
    (2) Span the analyzer to give a response of approximately 90 percent 
of full-scale chart deflection.
    (3) Recheck the zero response. If it has changed more than 0.5 
percent of full scale, repeat the steps given in

[[Page 220]]

paragraphs (b)(1) and (b)(2) of this section.
    (4) Record the response of calibration gases having nominal 
concentrations between 10 and 90 percent of full-scale concentration. A 
minimum of six evenly spaced points covering at least 80 percent of the 
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 range covered, a
                                             minimum of six points are
                                             needed.
------------------------------------------------------------------------

    (5) Generate a calibration curve. The calibration curve must be of 
fourth order or less, have five or fewer coefficients, and be of the 
form of the following equation (1) or (2). Include zero as a data point. 
Compensation for known impurities in the zero gas can be made to the 
zero-data point. The calibration curve must fit the data points within 
two percent of point or one percent of full scale, whichever is less.
[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 this 
section exists; or,
    (ii) The responses generated in paragraph (b)(4) of this section are 
within one percent of full scale or two percent of point, whichever is 
less, of the responses predicted by the calibration curve for the gases 
used in paragraph (b)(4) of this section.
    (7) If multiple range analyzers are used, the lowest range used must 
meet the curve fit requirements below 15 percent of full scale.
    (c) Linear calibration criteria. If any range is within two percent 
of being linear, a linear calibration may be used. To determine if this 
criterion is met:
    (1) Perform a linear least-square regression on the data generated. 
Use an equation of the form y=mx, where x is the actual chart 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 (designated as 
y).
    (3) Determine the linearity (designated as percent L) for each 
calibration gas by:
[GRAPHIC] [TIFF OMITTED] TR03JY95.012

    (4) The linearity criterion is met if the %L is less than two percent for each data point generated. For each 
emission test, use a calibration curve of the form Y=mx. The slope 
(designated as 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 as required 
by the test equipment manufacturer or as necessary according to good 
engineering practice.



Sec. 90.323  Analyzer bench checks.

    (a) Prior to initial use and after major repairs, verify that each 
analyzer complies with the specifications given in Table 2 in Appendix A 
of this subpart.
    (b) If a stainless steel NO2 to NO converter is used, 
condition all new or replacement converters. The conditioning consists 
of either purging the converter with air for a minimum of four hours or 
until the converter efficiency is greater than 90 percent. The

[[Page 221]]

converter must be at operational temperature while purging. Do not 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 within the 
analysis system where a vacuum leak could affect the test results.
    (2) The maximum allowable leakage rate on the vacuum side is 0.5 
percent of the in-use flow rate for the portion of the system being 
checked. The analyzer flows and bypass flows may be used to estimate the 
in-use flow rates.
    (3) The sample probe and the connection between the sample probe and 
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 the sample on the 
pressure side of the system may impact sample integrity if the leaks are 
of sufficient magnitude. As a safety precaution, good engineering 
practice would require that manufacturers perform periodic pressure-side 
leak checks of the sampling system. The recommended maximum 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, July 13, 2005]



Sec. 90.325  Analyzer interference checks.

    (a) Gases present in the exhaust other than the one being analyzed 
can interfere with the reading in several ways. Positive interference 
occurs in NDIR and PMD instruments when the interfering gas gives the 
same effect as the gas being measured, but to a lesser degree. Negative 
interference occurs in NDIR instruments by the interfering gas 
broadening the absorption band of the measured gas, and in CLD 
instruments by the interfering gas quenching the radiation. The 
interference checks described in this section are to be made initially 
and 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 gas having a 
concentration of between 80 percent and 100 percent inclusive of full 
scale of the maximum operating range used during testing and record the 
analyzer response. For dry measurements, this mixture may be introduced 
into the sample system prior to the water trap. The analyzer response 
must not be more than one percent of full scale for ranges equal to or 
above 300 ppm or more than three ppm for ranges below 300 ppm.
    (c) NOX analyzer quench check. The two gases of concern for CLD (and 
HCLD) analyzers are CO2 and water vapor. Quench responses to 
these two gases are proportional to their concentrations and, therefore, 
require test techniques to determine quench at the highest expected 
concentrations experienced during testing.
    (1) NOX analyzer CO2 quench check. (i) Pass a 
CO2 span gas having a concentration of 80 percent to 100 
percent of full scale of the maximum operating range used during testing 
through the CO2 NDIR analyzer and record the value ``a.''
    (ii) Dilute the CO2 span gas approximately 50 percent 
with NO span gas and pass through the CO2 NDIR and CLD (or 
HCLD). Record the CO2 and NO values as ``b'' and ``c'' 
respectively.
    (iii) Shut off the CO2 and pass only the NO span gas 
through the CLD (or HCLD). Record the NO value as ``d.''
    (iv) Calculate the percent CO2 quench as follows, not to 
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 222]]


    (2) NOX analyzer water quench check. (i) This check 
applies to wet measurements only. An NO span gas having a concentration 
of 80 percent to 100 percent of full scale of a normal operating range 
is passed through the CLD (or HCLD) and the response recorded as ``D''. 
The NO span gas is then bubbled through water at room temperature and 
passed through the CLD (or HCLD) and the analyzer's response recorded as 
AR. Determine and record the analyzer's absolute operating pressure and 
the bubbler water temperature. (It is important that the NO span gas 
contains minimal NO2 concentration for this check. No 
allowance for absorption of NO2 in water has been made in the 
following quench calculations.)
    (ii) Calculations for water quench must consider dilution of the NO 
span gas with water vapor and scaling of the water vapor concentration 
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 water concentration (``Z1'', 
percent) in the mixture by the following 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 vapor 
mixture 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 engine 
exhaust emission test prior to and after each test in accordance with 
the following:
    (a) Make the calibration by using a zero gas and a span gas. The 
span gas value must be between 75 and 100 percent of the highest range 
used.
    (b) Use the same analyzer(s) flow rate and pressure as that used 
during exhaust emission test sampling.
    (c) Warm-up and stabilize the analyzer(s) before the calibration is 
made.
    (d) If necessary clean and/or replace filter elements before 
calibration is made.
    (e) Calibrate analyzer(s) as follows:
    (1) Zero the analyzer using the appropriate zero gas. Adjust 
analyzer zero if necessary. Zero reading should be stable.
    (2) Span the analyzer using the appropriate span gas for the range 
being calibrated. Adjust the analyzer to the calibration set point if 
necessary.
    (3) Re-check zero and span set points.
    (4) If the response of the zero gas or span gas differs more than 
one percent of full scale at the highest range used, then repeat 
paragraphs (e)(1) through (3) of this section.

[60 FR 34598, July 3, 1995, as amended at 70 FR 40449, July 13, 2005]



Sec. 90.327  Sampling system requirements.

    (a) Sample component surface temperature. For sampling systems which 
use heated components, use engineering judgment to locate the coolest 
portion of each component (pump, sample line section, filters, and so 
forth) in the heated portion of the sampling system that has a separate 
source of power or heating element. Monitor the temperature at that 
location. If several components are within an oven, then only the 
surface temperature of the component with the largest thermal mass and 
the oven temperature need be measured.
    (b) If water is removed by condensation, monitor the sample gas 
temperature or sample dew point either within the water trap or 
downstream. 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 maximum 
tolerances shown in Table 2 in Appendix A of this subpart are not 
exceeded.
    (b) All equipment and analyzers must be calibrated according to the 
frequencies shown in Table 2 in Appendix A of this subpart.
    (c) Prior to initial use and after major repairs, bench check each 
analyzer (see Sec. 90.323).

[[Page 223]]

    (d) Calibrate equipment as specified in Sec. 90.306 and Sec. Sec. 
90.315 through 90.322.
    (e) At least monthly, or after any maintenance which could alter 
calibration, perform the following calibrations and checks.
    (1) Leak check the vacuum side of the system (see Sec. 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 the 
specifications in Table 2 in Appendix A of this subpart are met.
    (f) Verify that all NDIR analyzers meet the water rejection ratio 
and the CO2 rejection ratio as specified in Sec. 90.325.
    (g) Verify that the dynamometer test stand and power output 
instrumentation meet the specifications in Table 2 in Appendix A of this 
subpart.



Sec. 90.329  Catalyst thermal stress test.

    (a) Oven characteristics. The oven used for thermally stressing the 
test catalyst must be capable of maintaining a temperature of 500 5 [deg]C and 1000 10 [deg]C.
    (b) Evaluation gas composition. (1) A synthetic exhaust gas mixture 
is used for evaluating the effect of thermal stress on catalyst 
conversion efficiency.
    (2) The synthetic exhaust gas mixture must have the following 
composition:

------------------------------------------------------------------------
                                                                  Parts
                     Constituent                        Volume     per
                                                        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 not 
required 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 Part 90--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
                   balance calculation.
FFD               Fuel specific factor for exhaust flow
                   calculation on dry basis.
FFH               Fuel specific factor representing the
                   hydrogen to carbon ratio.
FFW               Fuel specific factor for exhaust flow
                   calculation on 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 test mode.
mass              Pollutant mass flow.....................  g/h
nd, i             Engine speed (average at the i'th mode    1/min
                   during the cycle).
Ps                Dry atmospheric pressure................  kPa
Pd                Test ambient saturation vapor pressure    kPa
                   at ambient temperature.
P                 Gross power output uncorrected..........  kW
PAUX              Declared total power absorbed by          kW
                   auxiliaries fitted for the test.
PM                Maximum power measured at the test speed  kW
                   under test conditions.
Pi                Pi = PM, i + PAUX, i....................
PB                Total barometric pressure (average of     kPa
                   the pre-test and post-test values).
Ra                Relative humidity of the ambient air....  percent
T                 Absolute temperature at air inlet.......  C

[[Page 224]]

 
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 during   N-m
                   the cycle).
TSC               Temperature of the intercooled air......  C
Tref.             Reference temperature...................  C
VEXHD             Exhaust gas volume flow rate on dry       m\3\/h
                   basis.
VAIRW             Intake air volume flow rate on wet basis  m\3\/h
PB                Total barometric pressure...............  kPa
VEXHW             Exhaust gas volume flow rate on wet       m\3\/h
                   basis.
WF                Weighing factor.........................
WFE               Effective weighing factor...............
------------------------------------------------------------------------


                             Table 2--Measurement Calibration Accuracy and Frequency
----------------------------------------------------------------------------------------------------------------
                                           Permissible deviation from reading *
    No.                Item           ----------------------------------------------    Calibration frequency
                                                Non-idle                 Idle
----------------------------------------------------------------------------------------------------------------
1.........  Engine speed.............  2 %  Same.............  Monthly or within one month
                                                                                      prior to the certification
                                                                                      test.
2.........  Torque...................  2 %  .................  Monthly or within one month
                                                                                      prior to the 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.............  As required.
                                        [deg]C.
10........  Air inlet temperature      2    Same.............  As required.
             (combustion air).          [deg]C.
11........  Atmospheric pressure.....  0.5  Same.............  As required.
                                        %.
12........  Humidity (combustion air)  3.0  Same.............  As required.
             (relative).                %.
13........  Fuel temperature.........  2    Same.............  As required.
                                        [deg]C.
14........  Temperature with regard    2    Same.............  As required.
             to dilution system.        [deg]C.
15........  Dilution air humidity....  3 %  Same.............  As required.
                                        absolute.
16........  HC analyzer..............  2    Same.............  Monthly or within one month
                                        %**.                                          prior to the certification
                                                                                      test.
17........  CO analyzer..............  2 %  Same.............  Monthly or within one month
                                        **.                                           prior to the certification
                                                                                      test.
18........  NOX analyzer.............  2 %  Same.............  Monthly or within one month
                                        **.                                           prior to the certification
                                                                                      test.
19........  NOX converter check......  90 %.....................  Same.............  Monthly or within one month
                                                                                      prior to the certification
                                                                                      test.
20........  CO2 analyzer.............  2 %  Same.............  Monthly or within one month
                                        **.                                           prior to the certification
                                                                                      test.
----------------------------------------------------------------------------------------------------------------
* All accuracy requirements pertain to the final recorded value which is inclusive of the data acquisition
  system.
** If reading is under 100 ppm then the accuracy shall be 2 ppm.


                                        Table 3--Test Fuel Specifications
----------------------------------------------------------------------------------------------------------------
                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
                                                                                            D 2700-92
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 225]]

 
Olefins, %..........................  9.2......................  4.0  D 1319-89
Saturates, %........................  Remainder................  .........................  D 1319-89
----------------------------------------------------------------------------------------------------------------
\1\ All ASTM procedures in this table have been incorporated by reference. See Sec.  90.7.


[[Page 226]]



            Sec. Appendix B to Subpart D of Part 90--Figures

[GRAPHIC] [TIFF OMITTED] TC01MR92.085


[[Page 227]]


[GRAPHIC] [TIFF OMITTED] TC01MR92.086


[[Page 228]]





                Subpart E_Gaseous Exhaust Test Procedures



Sec. 90.401  Applicability.

    (a) This subpart describes the procedures to follow in order to 
perform exhaust emission tests on new nonroad spark-ignition engines and 
vehicles subject to the provisions of subpart A of part 90. Provisions 
specific to raw gas sampling are in Sec. 90.414 through Sec. 90.419, 
provisions specific to constant volume sampling are in Sec. 90.420 
through Sec. 90.426. All other sections in this subpart apply to both 
raw gas sampling and constant volume sampling except where indicated 
otherwise.
    (b) Requirements for emission test equipment and calibrating this 
equipment are found in subpart D of this part.
    (c) Certain text in this subpart is identified as pertaining to 
Phase 1 or Phase 2 engines. Such text pertains only to engines of the 
specified Phase. If no indication of Phase is given, the text pertains 
to all engines, regardless of Phase.
    (d) For Phase 2 Class I, Phase 2 Class I-B, and Phase 2 Class II 
natural gas fueled engines, use the equipment specified in 40 CFR part 
1065, subparts D and E, to measure nonmethane hydrocarbon (NMHC) exhaust 
emissions from Phase 2 Class I, Phase 2 Class I-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, and Sec. 90.302 apply 
to this subpart.



Sec. 90.403  Symbols, acronyms, and abbreviations.

    (a) The acronyms and abbreviations in Sec. 90.5 apply to this 
subpart.
    (b) The symbols in Table 1 in Appendix A to Subpart D apply to this 
subpart.



Sec. 90.404  Test procedure overview.

    (a) The test consists of prescribed sequences of engine operating 
conditions to be conducted on an engine dynamometer or equivalent load 
and speed measurement device. The exhaust gases generated during engine 
operation are sampled either raw or dilute and specific components are 
analyzed through the analytical system.
    (b) The test is designed to determine the brake-specific emissions 
of hydrocarbons, carbon monoxide, carbon dioxide, and oxides of nitrogen 
and fuel consumption. For Phase 2 Class I-B, Class I, and Class II 
natural gas fueled engines the test is also designed to determine the 
brake-specific emissions of non-methane hydrocarbons. The test consists 
of three different test cycles which are application specific for 
engines which span the typical operating range of nonroad spark-ignition 
engines. Two cycles exist for Class I-B, I and II engines and one is for 
Class I-A, III, IV, and V engines (see Sec. 90.103(a) and Sec. 
90.116(b) for the definitions of Class I-A, I-B, and I--V engines). The 
test cycles for Class I-B, I, and II engines consist of one idle mode 
and five power modes at one speed (rated or intermediate). The test 
cycle for Class I-A, III, IV, and V engines consists of one idle mode at 
idle speed and one power mode at rated speed. These procedures require 
the determination of the concentration of each pollutant, fuel flow, and 
the power output during each mode. The measured values are weighted and 
used to calculate the grams of each pollutant emitted per brake kilowatt 
hour (g/kW-hr).
    (c)(1) When an engine is tested for exhaust emissions the complete 
engine must be tested, with all emission control devices installed and 
functioning.
    (2) On air cooled engines, the cooling fan must be installed. For 
engines whose cooling fan serves a dual purpose, such as an air pump/
blower, an external fan may be used to provide the engine with cooling 
air and the original cooling fan may be removed.
    (d) All emission control systems installed on or incorporated in the 
application must be functioning during all procedures in this subpart. 
In case of component malfunction or failure, no maintenance is allowed 
without prior approval from the Administrator, in accordance 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 229]]



Sec. 90.405  Recorded information.

    (a) Record the information described in this section for each test, 
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 prior to 
beginning the warm-up portion of the test (to the nearest tenth hour).
    (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 as 
this information is traceable, it may be summarized by system number 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 be 
measured 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 segment 
zero 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 the associated 
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 flow 
measurement is not required for dilute testing, but is allowed. If the 
fuel flow measurement is a volume measurement system, record the fuel 
temperature in the measurement system for fuel density corrections to 
the mass flow rate. If the fuel temperature is within 3 [deg]C of the 
calibration 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 for each 
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, July 13, 2005]



Sec. 90.406  Engine parameters to be measured and recorded.

    Measure or calculate, then record the engine parameters in table 1 
in appendix A of this subpart.



Sec. 90.407  Engine inlet and exhaust systems.

    (a) The engine manufacturer is liable for exhaust emission 
compliance over the full range of air inlet filter systems and exhaust 
muffler systems.
    (b) The air inlet filter system and exhaust muffler system 
combination used on the test engine must be the systems expected to 
yield 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 manufacturer for 
exhaust emission stabilizing of an engine, consistent with good 
engineering practice (see Sec. 90.118).
    (1) The manufacturer determines, for each engine family, the number 
of hours at which the engine exhaust emission control system combination 
is stabilized for emission testing. However, this stabilization 
procedure may not exceed 12 hours. The manufacturer must maintain, and 
provide to the Administrator upon request, a record of the rationale 
used in making this determination. If the manufacturer can document that 
at some time prior to the full 12 hour service accumulation

[[Page 230]]

period the engine emissions are decreasing for the remainder of the 12 
hours, the service accumulation may be completed at that time. The 
manufacturer may elect to accumulate 12 hours on each test engine within 
an engine family without making this determination.
    (2) During service accumulation, the fuel and lubricants specified 
in Sec. 90.308 must be used.
    (3) Engine maintenance during service accumulation is allowed only 
in accordance with Sec. 90.118.
    (b) Engine pre-test preparation. (1) Drain and charge the fuel 
tank(s) with the specified test fuel (see Sec. 90.308(b)) to 50 percent 
of the tank's nominal capacity. If an external fuel tank is used, the 
engine fuel inlet system pressure must be typical of what the engine 
will see in use.
    (2) An evaluation of the effects of test measurement systems on 
engine emissions shall be conducted using good engineering judgment to 
ensure that such test systems do not significantly impact exhaust 
emissions from the engine. For example, this would require evaluation of 
all types of emission sampling systems, and of fuel- and air-flow 
measurement systems for raw sampling. This can be accomplished by 
operating the engine at the highest engine torque value that will be 
encountered on the test cycle before and after such test systems are 
installed to ensure that the impact on measured torque is less than 5 
percent. This may also be accomplished by measuring air-to-fuel ratio 
using a zirconia universal exhaust gas oxygen (UEGO) sensor to ensure 
that the impact on measured air-to-fuel ratio is less than 5 percent at 
the highest engine torque value that will be encountered on the test 
cycle before and after such test systems are installed. The impact of 
air- and fuel-flow measurement systems may be evaluated based on an 
engineering analysis of the impact of the change in pressure induced on 
air-intake pressure and fuel supply pressure by these measurement 
systems. While this would typically be done before testing, it may also 
be done as a post-test verification.
    (c) Analyzer pre-test procedures. (1) If necessary, warm up and 
stabilize the analyzer(s) before calibrations are performed.
    (2) Replace or clean the filter elements and then leak check the 
system as required by Sec. 90.324(a). If necessary, allow the heated 
sample line, filters, and pumps to reach operating temperature.
    (3) Perform the following system checks:
    (i) If necessary, check the sample-line temperature. Heated FID 
sample line temperature must be maintained between 110 [deg]C and 230 
[deg]C; a heated NOX sample line temperature must be 
maintained between 60 [deg]C and 230 [deg]C.
    (ii) Check that the system response time has been accounted for 
prior to sample collection data recording.
    (iii) A HC hang-up check is permitted (see Sec. 90.413(e)).
    (4) Check analyzer zero and span before and after each test at a 
minimum. Further, check analyzer zero and span any time a range change 
is made or at the maximum demonstrated time span for stability for each 
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 in 
accordance with Sec. 90.119 may be made to the test engine prior to 
starting a test.
    (2) If necessary, warm up the dynamometer as recommended by the 
dynamometer manufacturer or use good engineering practice.
    (3) For Phase 1 engines, at the manufacturer's option, the engine 
can be run with the throttle in a fixed position or by using the 
engine's governor (if the engine is manufactured with a governor). In 
either case, the engine speed and load must meet the requirements 
specified 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 an engine 
speed governor, the governor must be used to control engine speed during 
all test cycle modes except for Mode 1 or Mode 6, and no external 
throttle control may

[[Page 231]]

be used that interferes with the function of the engine's governor; a 
controller may be used to adjust the governor setting for the desired 
engine speed in Modes 2-5 or Modes 7-10; and during Mode 1 or Mode 6 
fixed throttle operation 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 in Sec. 90.405(b).
    (2) Precondition the engine in the following manner;
    (i) Operate the engine at a power greater than or equal to 50 
percent maximum power at the appropriate speed (rated or intermediate) 
for 20 minutes;
    (ii) Option. If the engine has been operating on service 
accumulation for a minimum of 40 minutes, the service accumulation may 
be substituted for step (i).
    (3) Record all pre-test data specified in Sec. 90.405(c).
    (4) Start the test cycle (see Sec. 90.410) within five minutes of 
the completion of the steps required by paragraph (b)(2) of this 
section.
    (5) Modes are to be performed in the numerical order specified for 
the appropriate test cycle (see ``Mode Points'' Table 2 in Appendix A of 
this subpart).
    (6) For Class I, I-B, and II engines, during the maximum torque mode 
calculate the torque corresponding to 75, 50, 25, and 10 percent of the 
maximum observed torque (see Table 2 in Appendix A to this subpart).
    (7) Once engine speed and load are set for a mode, run the engine 
for a sufficient period of time to achieve thermal stability. At the 
manufacturer's option, determine and document the appropriate criterion 
for thermal stability for each engine family. If the manufacture chooses 
not to make this determination, an acceptable alternative is to run the 
engine at each mode until the cylinder head temperature remains within a 
10 [deg]C bandwidth for three minutes. Cylinder head temperature may be 
measured at the base of the spark plug. After stability is achieved, 
emission measurements are initiated.
    (8) Record all modal data specified in Sec. 90.405(d) for a minimum 
time period of the last two minutes of each mode. Longer averaging 
periods are acceptable, but the data averaged must be from a continuous 
time period. The duration of time during which this data is recorded is 
referred to as the ``sampling period.'' The data collected during the 
sampling period is used for modal emission calculations.
    (9) Continuously record the analyzer's response to the exhaust gas 
during each mode.
    (10) Modes may be repeated.
    (11) If a delay of more than one hour occurs between the end of one 
mode and the beginning of another mode, the test is void and must be 
restarted at paragraph (b)(1) of this section.
    (12) The engine speed and load must be maintained within the 
requirements of Sec. 90.410 during the sampling period of each mode. If 
this requirement is not met, the mode is void and must be restarted.
    (13) If at any time during a mode the test equipment malfunctions or 
the specifications in Sec. 90.410 can not be met, the test is void and 
must be aborted. Corrective action should be taken and 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 the 
steps required by paragraph (b)(6) of this section. If the engine will 
not restart within five minutes the test is void. If maintenance is 
required on the engine, advance approval from the Administrator is 
required as specified in Sec. 90.119. After corrective action is taken, 
the engine may be rescheduled for testing. Report the reason for the 
malfunction (if determined) and the corrective action taken.
    (15) Fuel flow and air flow during the idle condition may be 
determined just prior to or immediately following the dynamometer 
sequence, if longer times are required for accurate measurements. If the 
dilute sampling method (Constant Volume Sampling) is used, neither fuel 
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 mode must 
have the

[[Page 232]]

zero and span responses recorded prior to the start of the test. Only 
the range(s) used to measure the emissions during the test is required 
to have its zero and span recorded after the completion of the test. 
Depending on the stability of each individual analyzer, more frequent 
zero checks or spans between modes may be necessary.
    (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 (see Sec. 90.413).
    (6) If, during the emission measurement portion of a mode, the value 
of the gauges downstream of the NDIR analyzer(s) G3 or G4 (see Figure 1 
in Appendix B of this subpart), differs by more than 0.5kPa 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 and II 
engines and 2-mode test cycle for Class I-A, III, IV, and V engines when 
testing spark-ignition engines (see Table 2 in Appendix A of this 
subpart).
    (b) For Phase 1 engines and Phase 2 Class I-A, III, IV, and V, and 
Phase 2 Class I and II engines not equipped with an engine speed 
governor, during each non-idle mode, hold both the specified speed and 
load within five percent of point. During the idle 
mode, hold speed within ten percent of the 
manufacturer's specified idle engine speed. For Phase 2 Class I, I-B, 
and II engines equipped with an engine speed governor, during Mode 1 or 
Mode 6 hold both the specified speed and load within five percent of point, during Modes 2-3, or Modes 7-8 
hold the specified load with five percent of 
point, during Modes 4-5 or Modes 9-10, hold the specified load within 
the larger range provided by 0.27 Nm (0.2 lb-ft), or ten (10) percent of 
point, and during the idle mode hold the specified speed within ten percent of the manufacturer's specified idle engine 
speed (see Table 1 in Appendix A of this subpart for a description of 
test Modes). The use of alternative test procedures is allowed if 
approved in advance by the Administrator.
    (c) If the operating conditions specified in paragraph (b) of this 
section for Class I, I-B, and II engines using Mode Points 2, 3, 4, and 
5 cannot be maintained, the Administrator may authorize deviations from 
the specified load conditions. Such deviations may not exceed 10 percent 
of the maximum torque at the test speed. The minimum deviations, above 
and below the specified load, necessary for stable operation shall be 
determined by the manufacturer and approved by the Administrator 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 completion 
of the last mode in the test. Use the following procedure:
    (1) Introduce a zero gas or room air into the sample probe or valve 
V2 (see Figure 2 in Appendix B of Subpart 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 in 
paragraph (a)(1) of this section, the difference between the zero gas 
response and the hang-up zero response may not be greater than 5.0 
percent of full scale or 10 ppmC, whichever is greater.
    (b) Begin the analyzer span checks within six minutes after the 
completion of the last mode in the test. Record for each analyzer the 
zero and span response for each range used during the preceding test or 
test segment.
    (c) If during the test, the filter element(s) were replaced or 
cleaned, a vacuum check must be performed per Sec. 90.324(a) 
immediately after the span checks. If the vacuum side leak check does 
not meet the requirements of Sec. 90.324(a), the test is void.
    (d) Read and record the post-test data specified in Sec. 90.405(e).

[[Page 233]]

    (e) For a valid test, the analyzer drift between the before-segment 
and after-segment span checks for each analyzer must meet the following 
requirements:
    (1) The span drift (defined as the change in the difference between 
the zero response and the span response) may not exceed two percent 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 below 155 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 of 
this subpart.
    (b) Determine from the data collection records the analyzer 
responses corresponding to the end of each mode.
    (c) Record data at a minimum of rate of one Hz (one time per 
second).
    (d) Determine the final value for power by averaging the 
individually calculated power points for each value of speed and torque 
recorded during the sampling period. As an alternative, the final value 
for power can be calculated from the average values for speed and 
torque, collected during the sampling period.
    (e) Determine the final value for CO2, CO, HC, and 
NOX concentrations by averaging the concentration of each 
point taken during the sample period for each mode.



Sec. 90.413  Exhaust sample procedure--gaseous components.

    (a) Automatic data collection equipment requirements. The analyzer 
response may be read by automatic data collection (ADC) equipment such 
as computers, data loggers, and so forth. If ADC equipment is used, the 
following is required:
    (1) For dilute grab (``bag'') sample analysis, the analyzer response 
must be stable at greater than 99 percent of the final reading for the 
dilute exhaust sample. The ADC must store a single value representing 
the average chart deflection over a 10-second stabilized period. 
Alternatively, the ADC may store the individual instantaneous chart 
deflections collected over a 10-second stabilized period.
    (2) For continuous analysis systems, the ADC must store a single 
value representing the average integrated concentration over a 
measurement period. Alternatively, the ADC may store the individual 
instantaneous values collected during the measurement period.
    (3) The chart deflections or average integrated concentrations 
required in paragraphs (a)(1) and (a)(2) of this section may be stored 
on long-term computer storage devices such as computer tapes, storage 
discs, punch cards, or they may be printed in a listing for storage. In 
either case a chart recorder is not required and records from a chart 
recorder, if they exist, need not be stored.
    (4) If ADC equipment is used to interpret analyzer values, the ADC 
equipment is subject to the calibration specifications of the analyzer 
as if the ADC equipment is part of analyzer system.
    (b) Data records from any one or a combination of analyzers may be 
stored as chart recorder records.
    (c) Grab sample analysis. For dilute grab sample analysis perform 
the following procedure:
    (1) Calibrate analyzers using the procedure described in Sec. 
90.326.
    (2) Record the most recent zero and span response as the pre-
analysis values.
    (3) Measure and record HC, CO, CO2, and NOX 
concentrations in the exhaust sample bag(s) and background sample bag(s) 
using the same flow rates and pressures.
    (4) Good engineering practice dictates that exhaust emission sample 
bag analyzer readings below 15 percent of full scale should generally 
not be used.
    (5) A post-analysis zero and span calibration check of each range 
must be performed and the values recorded. The number of events that may 
occur between the pre- and post-checks is not specified. However, the 
difference between pre-analysis zero and span values (recorded in 
paragraph (c)(2) or (c)(3) of this section) versus those recorded for 
the post-analysis check may not exceed the zero drift limit or the span 
drift limit of two percent of full-

[[Page 234]]

scale chart deflection for any range used. Otherwise the analysis is 
void.
    (d) Continuous sample analysis. For continuous sample analysis 
perform the following procedure:
    (1) Calibrate analyzers using the procedure described in Sec. 
90.326.
    (2) Leak check portions of the sampling system that operate at 
negative 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 sampling 
system:
    (i) Zero the analyzer using zero gas introduced at the analyzer 
port.
    (ii) Flow zero gas through the overflow sampling system. Check the 
analyzer response.
    (iii) If the overflow zero response exceeds the analyzer zero 
response by two percent or more of the FID or HFID full-scale 
deflection, 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 procedure specified 
in paragraph (d)(1) of this section.
    (5) Good engineering practice dictates that analyzers used for 
continuous analysis should be operated such that the measured 
concentration 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, and NOX in 
a sample bag (for dilute exhaust sampling only, see Sec. 90.422).
    (8) Perform a post-analysis zero and span check for each range used 
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 three 
percent for HC, or two percent for NOX. CO, and 
CO2, of full-scale chart deflection, or the test is void. (If 
the HC drift is greater than three percent of full-scale chart 
deflection, HC hang-up is likely.)
    (10) Determine background levels of HC, NOX. CO, or 
CO2 (for dilute exhaust sampling only) by the grab (``bag'') 
technique outlined in paragraph (c) of this section.
    (e) Hydrocarbon hang-up. If HC hang-up is indicated, the following 
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 analyzer 
ports.
    (4) Analyze the background air through the entire sample probe 
system.
    (5) If the difference between the readings obtained is two ppm or 
more, 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 this 
section.



Sec. 90.414  Raw gaseous exhaust sampling and analytical system description.

    (a) Schematic drawing. An example of a sampling and analytical 
system which may be used for testing under this subpart is shown in 
Figure 2 in appendix B of subpart D. All components or parts of 
components that are wetted by the sample or corrosive calibration gases 
must be either chemically cleaned stainless steel or inert material 
(e.g., polytetrafluoroethylene resin). The use of ``gauge savers'' or 
``protectors'' with nonreactive 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 may not 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. The fitting that 
attaches the probe to the exhaust pipe must be as small as practical in 
order to minimize heat loss from the probe.
    (2) The probe must have a minimum of three holes. The spacing of the 
radial planes for each hole in the probe

[[Page 235]]

must be such that they cover approximately equal cross-sectional areas 
of the exhaust duct. See Figure 2 in appendix B of subpart D. 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 view C-C of Figure 2 in appendix 
B of subpart D). The holes should be sized such that each has 
approximately the same flow. If only three holes are used, they may not 
all be in the same radial plane.
    (3) The exhaust gas probe must be located in a position which yields 
a well mixed, homogenous sample of the engine exhaust. The probe must 
extend radially across the exhaust gas stream. The probe must pass 
through the approximate center and must extend across at least 80 
percent of the exhaust gas stream. The exact position of the probe may 
vary from engine family to engine family.
    (c) Mixing chamber. The exhaust mixing chamber is located in the 
exhaust system between the muffler and the sample probe. The mixing 
chamber is an optional component of the raw gas sampling equipment.
    (1) The internal volume of the mixing chamber may not be less than 
ten times the cylinder displacement of the engine under test. The shape 
of the mixing chamber must be such that it provides a well mixed, 
homogenous sample at the sample probe location.
    (2) Couple the mixing chamber as closely as possible to the engine 
muffler.
    (3) Maintain the inner surface of the mixing chamber at a minimum 
temperature of 179 [deg]C.
    (4) Thermocouple temperature monitoring of the mixing chamber inner 
surface is required to assure wall temperatures specified in paragraph 
(c)(3) of this section. The temperature measurement must be accurate to 
within 5 [deg]C.
    (5) The sample probe must extend radially across the exit of the 
mixing chamber. The probe must pass through the approximate center and 
must extend across at least 80 percent of the diameter of the exit. The 
exact position of the probe may vary from engine family to engine 
family. The probe must be located in a position which yields a well 
mixed, homogenous sample of the exhaust.
    (d) Sample transfer line. (1) The maximum inside diameter of the 
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 of 
optional valve V2 in Figure 1 of appendix B of subpart D may not be 
greater than 1.22 m from the exhaust duct.
    (3) The location of optional valve V16, Figure 1 of appendix B of 
this subpart, may not be greater than 61 cm from the sample pump. The 
leakage rate for this section on the pressure side of the sample pump 
may not exceed the leakage rate specification for the vacuum side of the 
pump.
    (e) Venting. All vents, including analyzer vents, bypass flow, and 
pressure relief vents, of regulators should be vented in such 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 additional 
information and coordinate the functions of the component systems.
    (h) The following requirements must be incorporated in each system 
used for raw testing under this subpart.
    (1) Take the sample for all components with one sample probe and 
split it internally to the different analyzers.
    (2) Heat the sample transport system from the engine exhaust pipe to 
the HC analyzer for the raw gas sampling method as indicated in Figure 1 
in appendix B of this subpart. The NOX analyzer for the raw 
gas sampling method may be heated as indicated in Figure 1 in appendix B 
of this subpart. The HC analyzer and the NOX analyzer for the 
dilute sampling method may be heated as indicated in Figure 1 in 
appendix B of this subpart.

[[Page 236]]



Sec. 90.415  Raw gaseous sampling procedures.

    Fit all heated sampling lines with a heated filter to extract solid 
particles from the flow of gas required for analysis. The sample line 
for HC measurement must be heated. The sample line for CO, 
CO2 and NOX analysis may be heated or unheated.



Sec. 90.416  Intake air flow measurement specifications.

    (a) If used, the engine intake air flow measurement method used must 
have a range large enough to accurately measure the air flow over the 
engine operating range during the test. Overall measurement accuracy 
must be two percent of full-scale value of the measurement device for 
all modes except the idle mode. For the idle mode, the measurement 
accuracy must be five percent or less of the full-
scale value. The Administrator must be advised of the method used prior 
to testing.
    (b) When an engine system incorporates devices that affect the air 
flow measurement (such as air bleeds, air injection, pulsed air, and so 
forth) resulting in understated exhaust emission results, make 
corrections to the exhaust emission results to account for such effects.



Sec. 90.417  Fuel flow measurement specifications.

    (a) Fuel flow measurement is required only for raw testing. Fuel 
flow is allowed for dilute testing.
    (b) The fuel flow measurement instrument must have a minimum 
accuracy of one percent of full-scale flow rate for each measurement 
range used. An exception is allowed for the idle mode. For this mode, 
the minimum accuracy is five percent of full-scale 
flow rate for the measurement range used. The controlling parameters are 
the elapsed time measurement of the event and the weight or volume 
measurement. You may apply the accuracy specifications of 40 CFR part 
1065, 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 the 
last two minutes of each mode and determine the average values for HC, 
CO, CO2 and NOX during each mode from the average 
concentration readings determined from the corresponding calibration 
data. Longer averaging times are acceptable, but the reported 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 mass rates 
are measured, use the following equations to determine the weighted 
emission values for the test engine:
[GRAPHIC] [TIFF OMITTED] TR03JY95.016

Where:

WHC = Mass rate of HC in exhaust [g/hr],

[[Page 237]]

GAIRD = Intake air mass flow rate on dry basis [g/hr],
GFUEL = Fuel mass flow rate [g/hr],
MHCexh = Molecular weight of hydrocarbons in the exhaust, 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 the 
following 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 the exhaust, 
wet
DCO2 = CO2 percent concentration in the exhaust, 
dry
WNOX = NO volume concentration in exhaust, ppm wet
WO2 = O2 percent concentration in the exhaust, wet
WH2 = H2 percent concentration in exhaust, wet
K = correction factor to be used when converting dry measurements to a 
wet basis. Therefore, wet concentration=dry concentration x 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 on 
NO2 formation for 4-stroke gasoline small engines, as 
follows:

KH = (9.953 x H + 0.832)

Where:

H = the amount of water in an ideal gas; 40 CFR 1065.645 describes how 
to determine this value (referred to as xH2O).
KH = 1 for two-stroke gasoline engines.

    (c) Fuel flow method. The following equations are to be used when 
fuel flow is selected as the basis for mass emission calculations using 
the raw gas method.

[[Page 238]]

[GRAPHIC] [TIFF OMITTED] TR03JY95.022

Where:
WHC = Mass rate of HC in exhaust, [g/hr]
MHCexh = Molecular weight of hydrocarbons in the exhaust, 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 the exhaust, 
wet
DCO = CO percent concentration in the exhaust, dry
DCO2 = CO2 percent concentration in the exhaust, 
dry
WHC = HC volume concentration in exhaust, ppmC wet
WNOX = NOX volume concentration in exhaust, ppm 
wet
K = correction factor to be used when converting dry measurements to a 
wet basis. Therefore, wet concentration=dry concentrationxK, 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 on 
NO2 formation for 4-stroke gasoline small engines, as 
follows:
    KH = (9.953 x H + 0.832)

Where:

H = the amount of water in an ideal gas; 40 CFR 1065.645 describes how 
to determine this value (referred to as xH2O).
KH = 1 for two-stroke gasoline engines.

    (d) Calculate the final weighted brake-specific emission rate for 
each individual gas component using the following equation:
[GRAPHIC] [TIFF OMITTED] TR03JY95.028

Where:
AWM = Final weighted brake-specific mass emission rate (HC, 
CO, NOX) [g/kW-hr]
Wi = Mass emission rate during mode i [g/hr]
WFi = Weighting factors for each mode according to Sec. 
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, July 13, 2005]

[[Page 239]]



Sec. 90.420  CVS concept of exhaust gas sampling system.

    (a) A dilute exhaust sampling system is designed to directly measure 
the true mass of emissions in engine exhaust without the necessity of 
measuring either fuel flow or intake air flow. This is accomplished by 
diluting the exhaust produced by a test engine with ambient background 
air and measuring the total diluted exhaust flow 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 control the 
total amount of dilute flow through the system. As the name implies, a 
CVS restricts flow to a known value dependent only on the dilute exhaust 
temperature and pressure.
    (c) For the testing described in this subpart, a CVS must consist 
of: a mixing tunnel into which the engine exhaust and dilutant 
(background) air are dumped; a dilute exhaust flow metering system; a 
dilute exhaust sample port; a background sample port; a dilute exhaust 
sampling system; and a background sampling system.
    (1) Mixing tunnel. The mixing tunnel must be constructed such that 
complete mixing of the engine exhaust and background air is assured 
prior to the sampling probe.
    (2) Exhaust flow metering system. A dilute exhaust flow metering 
system must be used to control the total flow rate of the dilute engine 
exhaust as described in Sec. 90.421.
    (3) Exhaust sample port. A dilute exhaust sample port must be 
located in or downstream of the mixing tunnel at a point where complete 
mixing of the engine exhaust and background air is assured.
    (4) Background sample port. A dilute exhaust sample port must be 
located in the stream of background air before it is mixed with the 
engine exhaust. The background probe must draw a representative sample 
of the background air during each sampling mode.
    (5) Exhaust sampling system. The dilute exhaust sampling system 
controls the flow of samples from the mixing tunnel to the analyzer 
system. This could be either a continuous sampling system or grab (bag) 
sampling system. If a critical flow venturi (CFV) is used on the dilute 
exhaust sample probe, this system must assure that the sample CFV is in 
choke flow during testing. If no CFV is used, this system must assure a 
constant volumetric flow rate through the dilute exhaust sample probe or 
must incorporate electronic flow compensation.
    (6) Background sampling system. The background sampling system 
controls the flow of samples from the background air supply to the 
analyzer system. This could be either a continuous sampling system or 
grab (bag) sampling system. This system must assure a constant 
volumetric 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 in this 
section is designed to measure the true mass of gaseous emissions in the 
exhaust of nonroad small spark-ignition engines. This system utilizes 
the Constant Volume Sampling (CVS) concept (described in Sec. 90.420) 
of measuring mass emissions of HC, NOX. CO, and 
CO2. Grab sampling for individual modes is an acceptable 
method of dilute testing for all constituents, HC, NOX. CO, 
and CO2. Continuous dilute sampling is not required for any 
of the exhaust constituents, but is allowable for all. Heated sampling 
is not required for any of the constituents, but is allowable for HC and 
NOX. The mass of gaseous emissions is determined from the 
sample concentration and total flow over the test period. As an option, 
the measurement of total fuel mass consumed over a cycle may be 
substituted for the exhaust measurement of CO2. General 
requirements are as follows:
    (1) This sampling system requires the use of a Positive Displacement 
Pump--Constant Volume Sampler (PDP-CVS) system with a heat exchanger, or 
a Critical Flow Venturi--Constant Volume Sampler (CFV-CVS) system with 
CFV sample probes and/or a heat exchanger or electronic flow 
compensation. Figure 2 in Appendix B of this subpart is a schematic 
drawing of the PDP-CVS system. Figure 3 in Appendix

[[Page 240]]

B of this subpart is a schematic drawing of the CFV-CVS system.
    (2) The HC analytical system requires:
    (i) Grab sampling (see Sec. 90.420, and Figure 2 or Figure 3 in 
Appendix B of this subpart) and analytical capabilities (see Sec. 
90.423, and Figure 4 in Appendix B of this subpart), or
    (ii) Continuously integrated measurement of diluted HC meeting the 
minimum requirements and technical specifications contained in paragraph 
(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 the 
diluted exhaust stream through a heated probe and integrated 
continuously over the test cycle.
    (v) The heated probe must be located in the sampling system far 
enough downstream of the mixing area to ensure a uniform sample 
distribution 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 or Figure 3 in 
Appendix B of this subpart) and analytical capabilities (see Sec. 
90.423, and Figure 4 in Appendix B of this subpart), or
    (ii) Continuously integrated measurement of diluted CO and 
CO2 meeting the minimum requirements and technical 
specifications contained in paragraph (b)(4) of this section.
    (4) The NOX analytical system requires:
    (i) Grab sampling (see Sec. 90.420, and Figure 2 or Figure 3 in 
Appendix B of this subpart) and analytical capabilities (see Sec. 
90.423, and Figure 4 in Appendix B of this subpart), or
    (ii) A continuously integrated measurement of diluted NOX 
meeting the minimum requirements and technical specifications contained 
in paragraph (b)(4) of this section.
    (5) Since various configurations can produce equivalent results, 
exact conformance with these drawings is not required. Additional 
components such as instruments, valves, solenoids, pumps, and switches 
may be used to provide additional information and coordinate the 
functions of the component systems. Other components, such as snubbers, 
which are not needed to maintain accuracy on some systems, may be 
excluded if their exclusion is based upon good engineering judgment.
    (6) Other sampling and/or analytical systems may be used if shown to 
yield equivalent results and if approved in advance by the 
Administrator.
    (b) Component description. The components necessary for exhaust 
sampling must meet the following requirements:
    (1) Exhaust dilution system. The PDP-CVS must conform to all of the 
requirements listed for the exhaust gas PDP-CVS in Sec. 90.420 of this 
chapter. The CFV-CVS must conform to all of the requirements listed for 
the exhaust gas CFV-CVS in Sec. 90.420 of this chapter. In addition, 
the CVS must conform to the following requirements:
    (i) The flow capacity of the CVS must be sufficient to maintain the 
diluted exhaust stream in the dilution system at a temperature of 190 
[deg]C or less at the sampling zone for hydrocarbon measurement and as 
required to prevent condensation at any point in the dilution system. 
Gaseous emission samples may be taken directly from this sampling point.
    (ii) For the CFV-CVS, either a heat exchanger or electronic flow 
compensation is required (see Figure 3 in Appendix B of this subpart).
    (iii) For the CFV-CVS when a heat exchanger is used, the gas mixture 
temperature, measured at a point immediately ahead of the critical flow 
venturi, must be within 11 [deg]C of the average 
operating temperature observed during the test with the simultaneous 
requirement that condensation does not occur. The temperature measuring 
system (sensors and readout) must have an accuracy and precision of 
2 [deg]C. For systems utilizing a flow compensator 
to maintain proportional flow, the requirement for maintaining constant 
temperature is not necessary.
    (2) Continuous HC measurement system. (i) The continuous HC sample 
system (as shown in Figure 2 or 3 in Appendix B of this subpart) uses an 
``overflow'' zero and span system. In this type of system, excess zero 
or span gas spills

[[Page 241]]

out of the probe when zero and span checks of the analyzer are made.
    (ii) No other analyzers may draw a sample from the continuous HC 
sample probe, line, or system, unless a common sample pump is used for 
all analyzers and the sample line system design reflects good 
engineering practice.
    (iii) The overflow gas flow rates into the sample line must be at 
least 105 percent of the sample system flow rate.
    (iv) The overflow gases must enter the sample line as close as 
practical to the outside surface of the CVS duct or dilution system.
    (v) The continuous HC sampling system consists of a probe (which for 
a HFID analyzer must raise the sample to the specified temperature) and, 
where used, a sample transfer system (which for a HFID must maintain the 
specified temperature). The HFID continuous hydrocarbon sampling system 
(exclusive of the probe) must:
    (A) Maintain a wall temperature of 190 11 
[deg]C as measured at every separately controlled heated component (that 
is, filters, heated line sections), using permanent thermocouples 
located at each of the separate components.
    (B) Have a wall temperature of 190 11 [deg]C 
over its entire length. The temperature of the system is demonstrated by 
profiling the thermal characteristics of the system where possible at 
initial installation and after any major maintenance performed on the 
system. The profiling is to be accomplished using the insertion 
thermocouple probing technique. The system temperature must be monitored 
continuously during testing at the locations and temperature described 
in Sec. 90.421(b)(2).
    (C) Maintain a gas temperature of 190 11 
[deg]C immediately before the heated filter and HFID. Determine these 
gas temperatures by a temperature sensor located immediately upstream of 
each component.
    (vi) The continuous hydrocarbon sampling probe:
    (A) Is defined as the first 25.4 to 76.2 cm of the continuous 
hydrocarbon sampling system.
    (B) Has a 0.483 cm minimum inside diameter.
    (C) Is installed in the dilution system at a point where the 
dilution air and exhaust are well mixed and provide a homogenous 
mixture.
    (D) Is sufficiently distant (radially) from other probes and the 
system wall so as to be free from the influence of any wakes or eddies.
    (E) For a continuous HFID sample probe, the probe must increases the 
gas stream temperature to 190 11 [deg]C at the 
exit of the probe. Demonstrate the ability of the probe to accomplish 
this using the insertion thermocouple technique at initial installation 
and after any major maintenance. Demonstrate compliance with the 
temperature specification by continuously recording during each test the 
temperature of either the gas stream or the wall of the sample probe at 
its terminus.
    (vii) The response time of the continuous measurement system must be 
taken into account when logging test data.
    (3) Sample mixing. (i) Configure the dilution system to ensure a 
well mixed, homogeneous sample prior to the sampling probe(s).
    (ii) Make the temperature of the diluted exhaust stream inside the 
dilution system sufficient to prevent water condensation.
    (iii) Direct the engine exhaust downstream at the point where it is 
introduced into the dilution system.
    (4) Continuously integrated NOX, CO, and CO2 
measurement systems--(i) Sample probe requirements:
    (A) The sample probe for continously intergrated NOX. CO, 
and CO2 must be in the same plane as the continuous HC probe, 
but sufficiently distant (radially) from other probes and the tunnel 
wall so as to be free from the influences of any wakes or eddies.
    (B) The sample probe for continously intergrated NOX. CO, 
and CO2 must be heated and insulated over the entire length, 
to prevent water condensation, to a minimum temperature of 55 [deg]C. 
Sample gas temperature immediately before the first filter in the system 
must be at least 55 [deg]C.
    (ii) Conform to the continuous NOX, CO, or CO2 
sampling and analysis system to the specifications of 40 CFR 1065.145, 
with the following exceptions and revisions:
    (A) Heat the system components requiring heating only to prevent 
water

[[Page 242]]

condensation, the minimum component temperature is 55 [deg]C.
    (B) Coordinate analysis system response time with CVS flow 
fluctuations and sampling time/test cycle offsets, if necessary.
    (C) Use only analytical gases conforming to the specifications of 
Sec. 90.312 of this subpart for calibration, zero and span checks.
    (D) Use a calibration curve conforming to Sec. 90.321 for CO and 
CO2 and Sec. 90.318 for NOX for any range on a 
linear analyzer below 155 ppm.
    (iii) Convert the chart deflections or voltage output of analyzers 
with non-linear calibration curves to concentration values by the 
calibration curve(s) specified in Sec. 90.321 of this chapter before 
flow correction (if used) and subsequent integration takes place.

[60 FR 34598, July 3, 1995, as amended at 70 FR 40450, July 13, 2005]



Sec. 90.422  Background sample.

    (a) Background samples are produced by drawing a sample of the 
dilution air during the exhaust collection phase of each test cycle 
mode.
    (1) An individual background sample may be produced and analyzed for 
each mode. Hence, a unique background value will be used for the 
emission calculations for each mode.
    (2) Alternatively, a single background sample may be produced by 
drawing a sample during the collection phase of each test cycle mode. 
Hence, a single cumulative background value will be used for the 
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 chart 
deflection over a 10-second stabilized period must be stored. All 
readings taken during the data logging period must be stable within 
one percent of full scale.
    (c) Measure HC, CO, CO2, and NOX exhaust and 
background concentrations in the sample bag(s) with approximately the 
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 this subpart is a 
schematic drawing of the exhaust gas analytical systems used for 
analyzing CVS grab ``bag'' samples from spark-ignition engines. Since 
various configurations can produce accurate results, exact conformance 
with the drawing is not required. Additional components such as 
instruments, valves, solenoids, pumps and switches may be used to 
provide additional information and coordinate the functions of the 
component systems. Other components such as snubbers, which are not 
needed to maintain accuracy in some systems, may be excluded if their 
exclusion is based upon good engineering judgment.
    (b) Major component description. The analytical system, Figure 4 in 
Appendix B of this subpart, consists of a flame ionization detector 
(FID) or a heated flame ionization detector (HFID) for the measurement 
of hydrocarbons, non-dispersive infrared analyzers (NDIR) for the 
measurement of carbon monoxide and carbon dioxide, and a 
chemiluminescence detector (CLD) (or heated CLD (HCLD)) for the 
measurement of oxides of nitrogen. The exhaust gas analytical system 
must conform to the following requirements:
    (1) The CLD (or HCLD) requires that the nitrogen dioxide present in 
the sample be converted to nitric oxide before analysis. Other types of 
analyzers may be used if shown to yield equivalent results and if 
approved in advance by the Administrator.
    (2) If CO instruments are used which are essentially free of 
CO2 and water vapor interference, the use of the conditioning 
column may be deleted. (See Sec. 90.317 and Sec. 90.320.)
    (3) A CO instrument is considered to be essentially free of 
CO2 and water vapor interference if its response to a mixture 
of three percent CO2 in N2, which has been bubbled 
through water at room temperature, produces an equivalent CO response, 
as measured on the most sensitive CO range, which is less than one 
percent of full-scale CO concentration on ranges above 300 ppm full 
scale or less than three ppm on ranges below 300 ppm full scale. (See 
Sec. 90.317.)
    (c) Alternate analytical systems. Analysis systems meeting the 
specifications

[[Page 243]]

and requirements of this subpart for dilute sampling may be used upon 
approval of the Administrator.
    (d) Other analyzers and equipment. Other types of analyzers and 
equipment may be used if shown to yield equivalent results and if 
approved in advance by the Administrator.



Sec. 90.424  Dilute sampling procedures--CVS calibration.

    (a) The CVS is calibrated using an accurate flowmeter and restrictor 
valve.
    (1) The flowmeter calibration must be traceable to the National 
Institute for Standards and Testing (NIST) and serves as the reference 
value (NIST ``true'' value) for the CVS calibration. (Note: In no case 
should an upstream screen or other restriction which can affect the flow 
be used ahead of the flowmeter unless 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 or American Society of 
Mechanical Engineers (ASME) flow nozzles are considered equivalent if 
traceable to NIST measurements. Other measurement systems may be used if 
shown to be equivalent under the test conditions in this section and 
traceable to NIST measurements.
    (3) Measurements of the various flowmeter parameters are recorded 
and related to flow through the CVS.
    (4) Procedures using both PDP-CVS and CFV-CVS are outlined in the 
following paragraphs. Other procedures yielding equivalent results may 
be used if approved in advance by the Administrator.
    (b) After the calibration curve has been obtained, verification of 
the entire system may be performed by injecting a known mass of gas into 
the system and comparing the mass indicated by the system to the true 
mass injected. An indicated error does not necessarily mean that the 
calibration is wrong, since other factors can influence the accuracy of 
the system (for example, analyzer calibration, leaks, or HC hangup). A 
verification procedure is found in paragraph (e) of this section.
    (c) PDP-CVS calibration. (1) The following calibration procedure 
outlines the equipment, the test configuration, and the various 
parameters which must be measured to establish the flow rate of the CVS 
pump.
    (i) All the parameters related to the pump are simultaneously 
measured with the parameters related to a flowmeter which is connected 
in 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 value of a specific combination of pump 
parameters.
    (iii) The linear equation which relates the pump flow and the 
correlation function is then determined.
    (iv) In the event that a CVS has a multiple speed drive, a 
calibration for each range used must be performed.
    (2) This calibration procedure is based on the measurement of the 
absolute values of the pump and flowmeter parameters that relate the 
flow rate at each point. Two conditions must be maintained to assure the 
accuracy and integrity of the calibration curve:
    (i) The temperature stability must be maintained during calibration. 
(Flowmeters are sensitive to inlet temperature oscillations; this can 
cause the data points to be scattered. Gradual changes in temperature 
are acceptable as long as they occur over a period of several minutes.)
    (ii) All connections and ducting between the flowmeter and the CVS 
pump must be absolutely void of leakage.
    (3) During an exhaust emission test the measurement of these same 
pump parameters enables the user to calculate the flow rate from the 
calibration equation.
    (4) Connect a system as shown in Figure 5 in Appendix B of this 
subpart. Although particular types of equipment are shown, other 
configurations that yield equivalent results may be used if approved in 
advance by the Administrator. For the system indicated, the following 
measurements and accuracies are required:

[[Page 244]]



                      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
 venturi.                                               kPa.
Air flow......................  QS        m\3\/min.    0.5
                                                        percent of NIST
                                                        value.
Air temperature at CVS pump     PTI       [deg]C       1.11
                                                        [deg]C.
Pressure depression at CVS      PPI       kPa          0.055
                                                        kPa.
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 in 
Appendix B of this subpart, set the variable restrictor in the wide open 
position and run the CVS pump for 20 minutes. Record the calibration 
data.
    (6) Reset the restrictor valve to a more restricted condition in an 
increment of pump inlet depression that will yield a minimum of six data 
points for the total calibration. Allow the system to stabilize for 
three minutes and repeat the data acquisition.
    (7) Data analysis:
    (i) The air flow rate, Qs, at each test point is 
calculated in standard cubic feet per minute 20 [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 pump inlet 
temperature 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 per minute, 
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 then calculated 
from the calibration data:
[GRAPHIC] [TIFF OMITTED] TR03JY95.032

Where:

Xo = correlation function.
[Delta]p = The pressure differential from pump inlet to pump outlet 
[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 the 
calibration 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 on 
each speed used. The calibration curves generated for the ranges will be 
approximately parallel and the intercept values, Do, will 
increase as the pump flow range decreases.
    (9) If the calibration has been performed carefully, the calculated 
values from the equation will be within 0.50 
percent of the measured value of Vo. Values of M will vary 
from one pump to another, but values of Do for pumps of the 
same make, model, and range should agree within three percent of each other. Calibrations should be 
performed at pump start-up and after major maintenance to assure the 
stability of the pump slip rate. Analysis of

[[Page 245]]

mass injection data will also reflect pump slip stability.
    (d) CFV-CVS calibration. (1) Calibration of the CFV is based upon 
the flow equation for a critical venturi. Gas flow is a function of 
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 this 
section establishes the value of the calibration coefficient at measured 
values of pressure, temperature, and air flow.
    (2) The manufacturer's recommended procedure must be followed for 
calibrating 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 in H2 O
 and throat of metering venturi.
Air flow........................  QS                   m\3\/min             .5 percent of
                                                                             NIST value
CFV inlet depression............  PPI                  (kPa)                .055 kPa
Temperature at venturi inlet....  TV                   [deg]C               2.22 [deg]C
----------------------------------------------------------------------------------------------------------------

    (4) Set up equipment as shown in Figure 6 in Appendix B of this 
subpart and eliminate leaks. (Leaks between the flow measuring devices 
and the critical flow venturi will seriously affect the accuracy of the 
calibration.)
    (5) Set the variable flow restrictor to the open position, start the 
blower, and allow the system to stabilize. Record data from all 
instruments.
    (6) Vary the flow restrictor and make at least eight readings across 
the critical flow range of the venturi.
    (7) Data analysis. The data recorded during the calibration are to 
be used in the following calculations:
    (i) Calculate the air flow rate (designated as Qs) at 
each test point in standard cubic feet per minute from the flow meter 
data using the manufacturer's prescribed method.
    (ii) Calculate values of the calibration coefficient for each test 
point:
[GRAPHIC] [TIFF OMITTED] TR03JY95.035

Where:

Qs = Flow rate in standard cubic meters per minute, at the 
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 unchoked and 
Kv decreases. (See Figure 7 in Appendix 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 average 
Kv , take corrective action.
    (e) CVS system verification. The following ``gravimetric'' technique 
may be used to verify that the CVS and analytical instruments can 
accurately measure a mass of gas that has been injected into the system. 
(Verification can also be accomplished by constant flow metering using 
critical flow orifice devices.)
    (1) Obtain a small cylinder that has been charged with 99.5 percent 
or greater propane or carbon monoxide gas (CAUTION--carbon monoxide is 
poisonous).
    (2) Determine a reference cylinder weight to the nearest 0.01 grams.
    (3) Operate the CVS in the normal manner and release a quantity of 
pure propane into the system during the

[[Page 246]]

sampling period (approximately five minutes).
    (4) The calculations are performed in the normal way except in the 
case 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 mass 
and then divided by the gravimetric mass to determine the percent 
accuracy of the system.
    (6) Good engineering practice requires that the cause for any 
discrepancy greater than two percent must be found 
and corrected.



Sec. 90.425  CVS calibration frequency.

    Calibrate the CVS positive displacement pump or critical flow 
venturi following initial installation, major maintenance, or as 
necessary when indicated by the CVS system verification (described in 
Sec. 90.424(e)).



Sec. 90.426  Dilute emission sampling calculations--gasoline fueled engines.

    (a) The final reported emission test results must be computed by use 
of the following formula:
[GRAPHIC] [TIFF OMITTED] TR03JY95.036

Where:

AWM = Final weighted brake-specific mass emission rate for 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 in Sec. 
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 for mode 
i. This correction factor only affects calculations for tion factor only 
affects calculations for NOX and is equal to one for all 
other emissions. KHi is also equal to 1 for all two-stroke 
engines.

    (b) The mass flow rate, Wi in g/hr, of an emission for 
mode i is determined from the following equation:

[GRAPHIC] [TIFF OMITTED] TR08OC08.081

Where:

QI = Volumetric flow rate [m\3\/HR at stp].
Density = Density of a specific emission (DensityHC, DensityCO, 
DensityCO2, Density NOX) [g/m\3\].
DFi = Dilution factor of the dilute exhaust during mode i.
CDi = Concentration of the emission (HC, CO, NOX) 
in dilute exhaust extracted from the CVS during mode i [ppm].
CBi = Concentration of the emission (HC, CO, NOX) 
in the background sample during mode i [ppm].
STP = Standard temperature and pressure. All volumetric calculations 
made for the equations in this section are to be corrected to a standard 
temperature of 20 [deg]C and a standard pressure of 101.3 kPa.

    (c) Densities for emissions that are to be measured for this test 
procedure 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 based on 
the assumption that the fuel used has a hydrogen to carbon ratio of 
1:1.85. For other fuels

[[Page 247]]

DensityHC can be calculated from the following formula:
[GRAPHIC] [TIFF OMITTED] TR08OC08.082

Where:

MHC = The molecular weight of the hydrocarbon molecule 
divided by the number of carbon atoms in the molecule [g/mole].
RSTP = Ideal gas constant for a gas at STP = 0.024065 
[m\3\[middot]mole]
    (2) The idealized molecular weight of the exhaust hydrocarbons, 
i.e., the molecular weight of the hydrocarbon molecule divided by the 
number of carbon atoms in the molecule, MHC, can be 
calculated from the following formula:
[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 that 
NOX is entirely in the form of NO2
    (d) The dilution factor, DF, is the ratio of the volumetric flow 
rate of the background air to that of the raw engine exhaust. The 
following formula is used to determine DF:
[GRAPHIC] [TIFF OMITTED] TR08OC08.083

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 dilute sample 
[ppm].
    (e) The humidity correction factor KH is an adjustment 
made to measured NOX values. This corrects for the 
sensitivity that a spark-ignition engine has to the humidity of its 
combustion air. The following formula is used to determine KH 
for NOX calculations:

KH = (9.953 H + 0.832)

Where:

H = the amount of water in an ideal gas; 40 CFR 1065.645 describes how 
to determine this value (referred to as xH2O).

KH = 1 for two-stroke gasoline engines.

    (f)-(g) [Reserved]
    (h) The fuel mass flow rate, Fi, can be either measured 
or calculated using the following formula:
[GRAPHIC] [TIFF OMITTED] TR03JY95.046

Where:

MFUEL = Mass of fuel consumed by the engine during the mode 
[g]
T = Duration of the sampling period [hr]

    (i) The mass of fuel consumed during the mode smpling period, 
MFUEL, can be calculated from the following equation:
[GRAPHIC] [TIFF OMITTED] TR08OC08.084


[[Page 248]]


Where:

GS = Mass of carbon measured during the mode sampling period 
[g].
R2 = The fuel carbon weight fraction, which is the mass of 
carbon in fuel per mass of fuel [g/g].

    (j) The grams of carbon measured during the mode, GS, can 
be calculated from the following equation:
[GRAPHIC] [TIFF OMITTED] TR08OC08.085

Where:

HCmass = mass of hydrocarbon emissions for the mode sampling 
period [grams].
COmass mass of carbon monoxide emissions for the mode sample 
period [grams].
CO2mass = mass of carbon dioxide emissions for the mode 
sample period [grams].
[alpha] = The atomic hydrogen-to-carbon ratio of the fuel.

[60 FR 34598, July 3, 1995, as amended at 70 FR 40450, July 13, 2005; 73 
FR 59182, Oct. 8, 2008]



Sec. 90.427  Catalyst thermal stress resistance evaluation.

    (a) The purpose of the evaluation procedure specified in this 
section is to determine the effect of thermal stress on catalyst 
conversion efficiency for Phase 1 engines. The thermal stress is imposed 
on the test catalyst by exposing it to quiescent heated air in an oven. 
The evaluation of the effect of such stress on catalyst performance is 
based on the resultant degradation of the efficiency with which the 
conversions of specific pollutants are promoted. The application of this 
evaluation procedure involves the several steps that are described in 
the following paragraphs.
    (b) Determination of initial conversion efficiency. (1) A synthetic 
exhaust gas mixture having the composition specified in Sec. 90.329 is 
heated to a temperature of 450 [deg]C 5 [deg]C and 
passed through the new test catalyst or, optionally, a test catalyst 
that has been exposed to temperatures less than or equal to 500 [deg]C 
for less than or equal to two hours, under flow conditions that are 
representative of anticipated in-use conditions.
    (2) The concentration of each pollutant of interest, that is, 
hydrocarbons, carbon monoxide, or oxides of nitrogen, in the effluent of 
the catalyst is determined by means of the instrumentation that is 
specified 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 initial 
concentration;
    (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 placed in an 
oven that has been pre-heated to 1000 [deg]C and the temperature of the 
air in the oven is maintained at 1000 [deg]C 10 
[deg]C for six hours.
    (2) The catalyst is removed from the oven and allowed to cool to 
room temperature.
    (d) Determination of final conversion efficiency. The steps listed 
in paragraph (b) of this section are repeated.
    (e) Determination of conversion efficiency degradation. (1) The 
final conversion efficiency determined in paragraph (c) of this section 
is subtracted from the initial conversion efficiency determined 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. The percent 
degradation determined in paragraph (e) of this section must not be 
greater than 20 percent.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15244, Mar. 30, 1999]

[[Page 249]]



             Sec. Appendix A to Subpart E of Part 90--Tables

      Table 1--Parameters to be Measured or Calculated 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 for Class 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
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 250]]



            Sec. Appendix B to Subpart E of Part 90--Figures
[GRAPHIC] [TIFF OMITTED] TC01MR92.087


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[GRAPHIC] [TIFF OMITTED] TC01MR92.088


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[GRAPHIC] [TIFF OMITTED] TC01MR92.089


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[GRAPHIC] [TIFF OMITTED] TC01MR92.090


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[GRAPHIC] [TIFF OMITTED] TC01MR92.006


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[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 nonroad 
engines and vehicles subject to the provisions of subpart A of part 90.



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 percentage of 
failing engines that can be considered a satisfactory process average 
for sampling inspections.
    Configuration means any subclassification of an engine family which 
can be described on the basis of gross power, emission control system, 
governed speed, fuel system, engine calibration, and other parameters as 
designated by the Administrator.
    Inspection criteria means the pass and fail numbers associated with 
a particular sampling plan.
    Test engine means an engine in a test sample.
    Test sample means the collection of engines selected from the 
population of an engine family for emission testing.



Sec. 90.503  Test orders.

    (a) The Administrator shall require any testing under this subpart 
by means of a test order addressed to the manufacturer.
    (b) The test order will be signed by the Assistant Administrator for 
Air and Radiation or his or her designee. The test order will be 
delivered in person by an EPA enforcement officer or EPA authorized 
representative to a company representative or sent by registered mail, 
return receipt requested, to the manufacturer's representative

[[Page 257]]

who signed the application for certification submitted by the 
manufacturer, pursuant to the requirements of the applicable section of 
subpart B of this part. Upon receipt of a test order, the manufacturer 
shall comply with all of the provisions of this subpart and instructions 
in the test order.
    (c) Information included in test order. (1) The test order will 
specify the engine family to be selected for testing, the manufacturer's 
engine assembly plant or associated storage facility or port facility 
(for imported engines) from which the engines must be selected, the time 
and location at which engines must be selected, and the procedure by 
which engines of the specified family must be selected. The test order 
may specify the configuration to be audited and/or the number of engines 
to be selected per day. Engine manufacturers will be required to select 
a minimum of four engines per day unless an alternate selection 
procedure is approved pursuant to Sec. 90.507(a), or unless total 
production of the specified configuration is less than four engines per 
day. If total production of the specified configuration is less than 
four engines per day, the manufacturer will select the actual number of 
engines produced per day.
    (2) The test order may include alternate families to be selected for 
testing at the Administrator's discretion in the event that engines of 
the specified family are not available for testing because those engines 
are not being manufactured during the specified time, or are not being 
stored at the specified assembly plant, associated storage facilities or 
port of entry.
    (3) If the specified family is not being manufactured at a rate of 
at least two engines per day in the case of manufacturers specified in 
Sec. 90.508(g)(1), or one engine per day in the case of manufacturers 
specified in Sec. 90.508(g)(2), over the expected duration of the 
audit, the Assistant Administrator or his or her designated 
representative may select engines of the alternate family for testing.
    (4) In addition, the test order may include other directions or 
information essential to the administration of the required testing.
    (d) A manufacturer may submit a list of engine families and the 
corresponding assembly plants, associated storage facilities, or (in the 
case of imported engines) port facilities from which the manufacturer 
prefers to have engines selected for testing in response to a test 
order. In order that a manufacturer's preferred location be considered 
for inclusion in a test order for a particular engine family, the list 
must be submitted prior to issuance of the test order. Notwithstanding 
the fact that a manufacturer has submitted the list, the Administrator 
may order selection at other than a preferred location.
    (e) Upon receipt of a test order, a manufacturer shall proceed in 
accordance with the provisions of this subpart.
    (f)(1) During a given model year, the Administrator shall not issue 
to a manufacturer more Selective Enforcement Auditing (SEA) test orders 
than an annual limit determined by the following:
    (i) for manufacturers with a projected annual production of less 
than 100,000 engines bound for the United States market for that model 
year, the number is two;
    (ii) for manufacturers with a projected annual production of 100,000 
or more engines bound for the United States market for that model year, 
by dividing the manufacturer's total number of certified engine families 
by five and rounding to the nearest whole number, unless the number of 
engine families is less than eight, in which case the number is two.
    (2) If a manufacturer submits to EPA in writing prior to or during 
the model year a reliable sales projection update or adds engine 
families or deletes engine families from its production, that 
information will be used for recalculating the manufacturer's annual 
limit of SEA test orders.
    (3) Any SEA test order for which the family or configuration, as 
appropriate, fails under Sec. 90.510 or for which testing is not 
completed will not be counted against the annual limit.
    (4) When the annual limit has been met, the Administrator may issue 
additional test orders to test those families or configurations for 
which evidence

[[Page 258]]

exists indicating nonconformity, or for which the Administrator has 
reason to believe are not being appropriately represented or tested in 
Production Line Testing conducted under subpart H of this part, if 
applicable. An SEA test order issued pursuant to this provision will 
include a statement as to the reason for 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 under Sec. 90.503 
that engines of a specified family be selected in a manner consistent 
with the requirements of Sec. 90.507 and submitted to the Administrator 
at the place designated for the purpose of conducting emission tests. 
These tests will be conducted in accordance with Sec. 90.508 to 
determine whether engines manufactured by the manufacturer conform with 
the regulations with respect to which the certificate of conformity was 
issued.
    (b) Designating official data. (1) Whenever the Administrator 
conducts a test on a test engine or the Administrator and manufacturer 
each conduct a test on the same test engine, the results of the 
Administrator's test will comprise the official data for 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 on 
testing conducted under paragraph (a) of this section that there is a 
substantial lack of agreement between the manufacturer's test results 
and the Administrator's test results, no manufacturer's test data from 
the manufacturer's test facility will be accepted for purposes of this 
subpart.
    (c) If testing conducted under paragraph (a) of this section is 
unacceptable under Sec. 90.503, the Administrator shall:
    (1) Notify the manufacturer in writing of the Administrator's 
determination that the test facility is inappropriate for conducting the 
tests required by this subpart and the reasons therefor; and
    (2) Reinstate any manufacturer's data upon a showing by the 
manufacturer that the data acquired under paragraph (a) of this section 
was erroneous and the manufacturer's data was correct.
    (d) The manufacturer may request in writing that the Administrator 
reconsider his or her determination in paragraph (b)(2) of this section 
based on data or information which indicates that changes have been made 
to the test facility and these changes have resolved the reasons for 
disqualification.



Sec. 90.505  Maintenance of records; submittal of information.

    (a) The manufacturer of any new nonroad engine subject to any of the 
provisions of this subpart shall establish, maintain, and retain the 
following adequately organized and indexed records:
    (1) General records. A description of all equipment used to test 
engines, as specified in subpart D of this part, in accordance with 
Sec. 90.508 pursuant to a test order issued under this subpart.
    (2) Individual records. These records pertain to each audit 
conducted 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 when 
the test began and ended;
    (iii) The names of all supervisory personnel involved in the conduct 
of the audit;
    (iv) A record and description of any repairs performed prior to and/
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 of 
the repair;
    (v) The date the engine was shipped from the assembly plant, 
associated storage facility or port facility and date the engine was 
received at the testing facility;
    (vi) A complete record of all emission tests performed pursuant to 
this subpart (except tests performed directly by EPA), including all 
individual worksheets and/or other documentation relating to each test, 
or exact copies thereof, to be in accordance with the record 
requirements specified in

[[Page 259]]

Sec. Sec. 90.405, 90.406, 90.418, and/or 90.425 as applicable.
    (vii) A brief description of any significant audit events commencing 
with the test engine selection process, but not described under 
paragraph (a)(2) of this section, including such extraordinary events 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 that 
can be used to perform emission testing under this subpart.
    (b) The manufacturer shall retain all records required to be 
maintained under this subpart for a period of one year after completion 
of all testing in response to a test order. Records may be retained as 
hard copy or reduced to microfilm, floppy disc, and so forth, depending 
upon the manufacturer's record retention procedure, provided that in 
every case all the information contained in the hard copy 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 within 
each 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 the request;
    (3) Number of engines, by configuration and by assembly plant, 
storage facility or port facility, scheduled to be stored at facilities 
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 are complete for 
introduction into commerce.
    (d) Nothing in this section limits the Administrator's discretion in 
requiring the manufacturer to retain additional records or submit 
information 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. Environmental 
Protection Agency, 6405-J, 401 M St., SW., Washington, DC 20460.



Sec. 90.506  Right of entry and access.

    (a) To allow the Administrator to determine whether a manufacturer 
is complying with the provisions of this subpart, a test order is issued 
which authorizes EPA enforcement officers or their authorized 
representatives upon presentation of credentials to enter during 
operating 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 is 
manufactured, assembled, or stored;
    (2) Any facility where any tests conducted pursuant to a test order 
or any procedures or activities connected with these tests are or were 
performed;
    (3) Any facility where any engine which is being tested, was tested, 
or will be tested is present; and
    (4) Any facility where any record or other document relating to any 
of the above is located.
    (b) Upon admission to any facility referred to in paragraph (a) of 
this section, EPA enforcement officers or EPA authorized representatives 
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 which these 
procedures are conducted;
    (2) To inspect and monitor any aspect of engine test procedures or 
activities, including, but not limited to, engine selection, 
preparation, service accumulation, emission test cycles, and maintenance 
and verification of test equipment calibration;
    (3) To inspect and make copies of any records or documents related 
to the assembly, storage, selection and testing of an engine in 
compliance with a test order; and
    (4) To inspect and photograph any part or aspect of any engine and 
any component used in the assembly thereof that is reasonably related to 
the purpose of the entry.
    (c) EPA enforcement officers or EPA authorized representatives are 
authorized to obtain reasonable assistance

[[Page 260]]

without cost from those in charge of a facility to help the officers 
perform any function listed in this subpart, and they are authorized to 
request the recipient of a test order to make arrangements with those in 
charge of a facility operated for the manufacturer's benefit to furnish 
reasonable assistance without cost to EPA, whether or not the recipient 
controls the facility.
    (1) Reasonable assistance includes, but is not limited to, clerical, 
copying, interpretation and translation services, the making available 
on an EPA enforcement officer's or EPA authorized representative's 
request of personnel of the facility being inspected during their 
working hours to inform the EPA enforcement officer or EPA authorized 
representative of how the facility operates and to answer the officer's 
questions, and the performance 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 personal appearance 
of any employee at such a facility before an EPA enforcement officer or 
EPA authorized representative by written request for his or her 
appearance, signed by the Assistant Administrator for Air and Radiation, 
served on the manufacturer. Any such employee who has been instructed by 
the manufacturer to appear will be entitled to be accompanied, 
represented, and advised by counsel.
    (d) EPA enforcement officers or EPA authorized representatives are 
authorized to seek a warrant or court order authorizing the EPA 
enforcement officers or EPA authorized representatives to conduct 
activities 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 ex parte 
to obtain a warrant whether or not the EPA enforcement officers or EPA 
authorized representatives first attempted to seek permission of the 
recipient of the test order or the party in charge of the facilities in 
question to conduct activities related to entry and access as authorized 
in this section.
    (e) A recipient of a test order shall permit an EPA enforcement 
officer(s) or EPA authorized representative(s) who presents a warrant or 
court order to conduct activities related to entry and access as 
authorized in this section and as described in the warrant or court 
order. The recipient shall also cause those in charge of its facility or 
a facility operated for its benefit to permit entry and access as 
authorized in this section pursuant to a warrant or court order whether 
or not the recipient controls the facility. In the absence of a warrant 
or court order, an EPA enforcement officer(s) or EPA authorized 
representative(s) may conduct activities related to entry and access as 
authorized in this section only upon the consent of the recipient of the 
test order or the party in charge of the facilities in question.
    (f) It is not a violation of this part or of the Clean Air Act for 
any person to refuse to permit an EPA enforcement officer(s) or an EPA 
authorized representative(s) to conduct activities related to entry and 
access as authorized in this section if the officer or representative 
appears without a warrant or court order.
    (g) A manufacturer is responsible for locating its foreign testing 
and manufacturing facilities in jurisdictions in which local foreign law 
does not prohibit an EPA enforcement officer(s) or an EPA authorized 
representative(s) from conducting the entry and access activities 
specified in this section. EPA will not attempt to make any inspections 
which it has been informed that local foreign law prohibits.



Sec. 90.507  Sample selection.

    (a) Engines comprising a test sample will be selected at the 
location and in the manner specified in the test order. If a 
manufacturer determines that the test engines cannot be selected in the 
manner specified in the test order, an alternative selection procedure 
may be employed, provided the manufacturer requests approval of the 
alternative procedure prior to the start of test sample selection, and 
the Administrator approves the procedure.
    (b) The manufacturer shall assemble the test engines of the family 
selected for testing using its normal mass production process for 
engines to be distributed into commerce. If, between

[[Page 261]]

the time the manufacturer is notified of a test order and the time the 
manufacturer finishes selecting test engines, the manufacturer 
implements any change(s) in its production processes, including quality 
control, which may reasonably be expected to affect the emissions of the 
engines selected, then the manufacturer shall, during the audit, inform 
the Administrator of such changes. If the test engines are selected at a 
location where they do not have their operational and emission control 
systems installed, the test order will specify the manner and location 
for selection of components to complete assembly of the engines. The 
manufacturer shall assemble these components onto the test engines using 
normal assembly and quality control procedures as documented by the 
manufacturer.
    (c) No quality control, testing, or assembly procedures will be used 
on the test engine or any portion thereof, including parts and 
subassemblies, that have not been or will not be used during the 
production and assembly of all other engines of that family, unless the 
Administrator approves the modification in assembly procedures 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, select the 
test engines according to the method specified in the test order.
    (e) The order in which test engines are selected determines the 
order in which test results are to be used in applying the sampling plan 
in accordance with Sec. 90.510.
    (f) The manufacturer shall keep on hand all untested engines, if 
any, comprising the test sample until a pass or fail decision is reached 
in accordance with Sec. 90.510(e). The manufacturer may ship any tested 
engine which has not failed in accordance with Sec. 90.510(b). However, 
once the manufacturer ships any test engine, it relinquishes the 
prerogative to conduct retests as provided 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 engine test 
procedures as described in subpart E of this part.
    (b)(1) The manufacturer shall not adjust, repair, prepare, or modify 
the engines selected for testing and shall not perform any emission 
tests on engines selected for testing pursuant to the test order unless 
this adjustment, repair, preparation, modification, and/or tests are 
documented in the manufacturer's engine assembly and inspection 
procedures and are actually performed or unless these adjustments and/or 
tests are required or permitted under this subpart or are approved in 
advance by the Administrator.
    (2) The Administrator may adjust or cause to be adjusted any engine 
parameter which the Administrator has determined to be subject to 
adjustment for certification and Selective Enforcement Audit testing in 
accordance with Sec. 90.112(c), to any setting within the physically 
adjustable range of that parameter, as determined by the Administrator 
in accordance with Sec. 90.112(a), prior to the performance of any 
tests. However, if the idle speed parameter is one which the 
Administrator has determined to be subject to adjustment, the 
Administrator shall not adjust it to any setting which causes a lower 
engine idle speed than would have been possible within the physically 
adjustable range of the idle speed parameter if the manufacturer had 
accumulated 12 hours of service on the engine under paragraph (c) of 
this section, all other parameters being identically adjusted for the 
purpose of the comparison. The manufacturer may be requested to supply 
information needed to establish an alternate minimum idle speed. The 
Administrator, in making or specifying these adjustments, may consider 
the effect of the deviation from the manufacturer's recommended setting 
on emission performance characteristics as well as the likelihood that 
similar settings will occur on in-use engines. In determining 
likelihood, the Administrator may consider factors such as, but not 
limited to, the effect of the adjustment on engine performance 
characteristics and surveillance information from similar in-use 
engines.
    (c) Service Accumulation. Prior to performing exhaust emission 
testing on an SEA test engine, the manufacturer

[[Page 262]]

may accumulate on each engine a number of hours of service equal to the 
greater of 12 hours or the number of hours the manufacturer accumulated 
during certification on the emission data engine corresponding to the 
family specified in the test order.
    (1) Service accumulation must be performed in a manner using good 
engineering judgment to obtain emission results representative of normal 
production engines. This service accumulation must be consistent with 
the new engine break-in instructions contained in the applicable owner's 
manual.
    (2) The manufacturer shall accumulate service at a minimum rate of 
12 hours per engine during each 24-hour period, unless otherwise 
approved by the Administrator.
    (i) The first 24 hour period for service shall begin as soon as 
authorized checks, inspections, and preparations are completed on each 
engine.
    (ii) The minimum service or mileage accumulation rate does not apply 
on weekends or holidays.
    (iii) If the manufacturer's service or target is less than the 
minimum rate specified (12 hours per day), then the minimum daily 
accumulation rate shall be equal to the manufacturer's service target.
    (3) Service accumulation shall be completed on a sufficient number 
of test engines during consecutive 24-hour periods to assure that the 
number of engines tested per day fulfills the requirements of paragraphs 
(g)(1) and (g)(2) of this section.
    (d) The manufacturer shall not perform any maintenance on test 
engines after selection for testing, nor shall the Administrator allow 
deletion of any engine from the test sequence, unless requested by the 
manufacturer and approved by the Administrator before any engine 
maintenance or deletion.
    (e) The manufacturer shall expeditiously ship test engines from the 
point of selection to the test facility. If the test facility is not 
located at or in close proximity to the point of selection, the 
manufacturer shall assure that test engines arrive at the test facility 
within 24 hours of selection, except that the Administrator may approve 
more time for shipment based upon a request by the manufacturer 
accompanied by a satisfactory justification.
    (f) If an engine cannot complete the service accumulation or an 
emission test because of a malfunction, the manufacturer may request 
that the Administrator authorize either the repair of that engine or its 
deletion from the test sequence.
    (g) Whenever a manufacturer conducts testing pursuant to a test 
order issued under this subpart, the manufacturer shall notify the 
Administrator within one working day of receipt of the test order as to 
which test facility will be used to comply with the test order. If no 
test cells are available at a desired facility, the manufacturer must 
provide alternate testing capability satisfactory to the Administrator.
    (1) A manufacturer with projected nonroad engine sales for the 
United States market for the applicable year of 7,500 or greater shall 
complete emission testing at a minimum rate of two engines per 24-hour 
period, including each voided test.
    (2) A manufacturer with projected nonroad engine sales for the 
United States market for the applicable year of less than 7,500 shall 
complete emission testing at a minimum rate of one engine per 24-hour 
period, including each voided test.
    (3) The Administrator may approve a lower daily rate of emission 
testing based upon a request by a manufacturer accompanied by a 
satisfactory justification.
    (h) The manufacturer shall perform test engine selection, shipping, 
preparation, service accumulation, and testing in such a manner as to 
assure that the audit is performed in an expeditious manner.
    (i) Retesting. (1) The manufacturer may retest any engines tested 
during a Selective Enforcement Audit once a fail decision for the audit 
has been reached in accordance with Sec. 90.510(e).
    (2) The Administrator may approve retesting at other times based 
upon a request by the manufacturer accompanied by a satisfactory 
justification.
    (3) The manufacturer may retest each engine a total of three times. 
The manufacturer shall test each engine or vehicle the same number of 
times. The

[[Page 263]]

manufacturer may accumulate additional service before conducting a 
retest, subject to the provisions of paragraph (c) of this section.
    (j) A manufacturer may test engines with the test procedure 
specified in subpart E of this part to demonstrate compliance with the 
exhaust emission standards; however, if alternate procedures were used 
in certification pursuant to Sec. 90.120, then those alternate 
procedures shall be used.



Sec. 90.509  Calculation and reporting of test results.

    (a) Initial test results are calculated following the applicable 
test procedure specified in paragraph (a) of Sec. 90.508. The 
manufacturer shall round these results, in accordance with ASTM E29-93a, 
to the number of decimal places contained in the applicable emission 
standard expressed to one additional significant figure. ASTM E29-93a 
has been incorporated by reference. See Sec. 90.7.
    (b)(1) Final test results are calculated by summing the initial test 
results derived in paragraph (a) of this section for each test engine, 
dividing by the number of tests conducted on the engine, and rounding to 
the same number of decimal places contained in the applicable standard. 
For Phase 2 engines only, this result shall be expressed to one 
additional significant figure.
    (2) Final deteriorated test results (for Phase 2 test engines only) 
are calculated by applying the appropriate deterioration factors, from 
the certification process for the engine family, to the final test 
results, and rounding to the same number of decimal places contained in 
the applicable standard.
    (c) Within five working days after completion of testing of all 
engines pursuant to a test order, the manufacturer shall submit to the 
Administrator a report which includes the following information:
    (1) The location and description of the manufacturer's exhaust 
emission test facilities which were utilized to conduct testing reported 
pursuant to this section;
    (2) The applicable standards or compliance levels against which the 
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 to 
testing;
    (ii) Location where service accumulation was conducted and 
description of accumulation procedure and schedule;
    (iii) Test number, date, test procedure used, initial test results 
before and after rounding and final test results for all exhaust 
emission tests, whether valid or invalid, and the reason for 
invalidation, if applicable;
    (iv) A complete description of any modification, repair, 
preparation, maintenance, and/or testing which was performed on the test 
engine and has not been reported pursuant to any other paragraph of this 
subpart and will not be performed on all other production engines;
    (v) Where an engine was deleted from the test sequence by 
authorization of the Administrator, the reason for the deletion;
    (vi) Any other information the Administrator may request relevant to 
the determination as to whether the new engines being manufactured by 
the manufacturer do in fact conform with the regulations with respect 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 the 
Clean Air Act. This Selective Enforcement Audit was conducted in 
complete conformance with all applicable regulations under 40 CFR part 
90 et seq. and the conditions of the test order. No emission-related 
changes to production processes or quality control procedures for the 
engine family tested have been made between receipt of the test order 
and conclusion of the audit. All data and information reported herein 
is, to the best of (Company Name) knowledge, true and accurate. I am 
aware of

[[Page 264]]

the penalties associated with violations of the Clean Air Act and the 
regulations thereunder. (Authorized Company 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 failing 

criteria 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 final 
test results pursuant to Sec. 90.509(b), for one or more of the 
applicable pollutants exceed the emission standard. For Phase 2 engines, 
a failed engine is an engine whose final deteriorated test results 
pursuant to Sec. 90.509(b), for one or more of the applicable 
pollutants exceed the emission standard (FEL, if applicable).
    (c) The manufacturer shall test engines comprising the test sample 
until a pass decision is reached for all pollutants or a fail decision 
is reached for one pollutant. A pass decision is reached when the 
cumulative number of failed engines, as defined in paragraph (b) of this 
section, for each pollutant is less than or equal to the pass decision 
number, as defined in paragraph (d) of this section, appropriate to the 
cumulative number of engines tested. A fail decision is reached when the 
cumulative number of failed engines for one or more pollutants is 
greater than or equal to the fail decision number, as defined in 
paragraph (d) of this section, appropriate to the cumulative number of 
engines tested.
    (d) The pass and fail decision numbers associated with the 
cumulative number of engines tested are determined by using the tables 
in Appendix A to this subpart, ``Sampling Plans for Selective 
Enforcement Auditing of Small Nonroad Engines,'' appropriate to the 
projected sales as made by the manufacturer in its report to EPA under 
Sec. 90.505(c)(1). In the tables in Appendix A to this subpart, 
sampling plan ``stage'' refers to the cumulative number of engines 
tested. Once a pass or fail decision has been made for a particular 
pollutant, the number of engines with final test results exceeding the 
emission standard for that pollutant shall not be considered any further 
for the purposes of the audit.
    (e) Passing or failing of an SEA occurs when the decision is made on 
the last engine test required to make a decision under paragraph (c) of 
this section.
    (f) The Administrator may terminate testing earlier than required in 
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 any 
engine failing pursuant to Sec. 90.510(b) effective from the time that 
testing of that engine is completed.
    (b) The Administrator may suspend the certificate of conformity for 
a family which does not pass an SEA, pursuant to paragraph Sec. 
90.510(c), based on the first test or all tests conducted on each 
engine. This suspension will not occur before ten days after failure of 
the audit.
    (c) If the results of testing pursuant to these regulations indicate 
that engines of a particular family produced at one plant of a 
manufacturer do not conform to the regulations with respect to which the 
certificate of conformity was issued, the Administrator may suspend the 
certificate of conformity with respect to that family for engines 
manufactured by the manufacturer at all other plants.
    (d) Notwithstanding the fact that engines described in the 
application may be covered by a certificate of conformity, the 
Administrator may suspend such certificate in whole or in part if the 
Administrator finds any one of the following infractions to be 
substantial:
    (1) The manufacturer refuses to comply with the provisions of a test 
order issued by the Administrator under Sec. 90.503.
    (2) The manufacturer refuses to comply with any of the requirements 
of this subpart.
    (3) The manufacturer submits false or incomplete information in any 
report or information provided to the Administrator under this subpart.

[[Page 265]]

    (4) The manufacturer renders inaccurate any test data submitted 
under this subpart.
    (5) An EPA enforcement officer or EPA authorized representative is 
denied the opportunity to conduct activities related to entry and access 
as authorized in this subpart and a warrant or court order is presented 
to the manufacturer or the party in charge of a facility in question.
    (6) An EPA enforcement officer or EPA authorized representative is 
unable to conduct activities related to entry and access as authorized 
in Sec. 90.506 because a manufacturer has located a facility in a 
foreign jurisdiction where local law prohibits those activities.
    (e) The Administrator shall notify the manufacturer in writing of 
any suspension or revocation of a certificate of conformity in whole or 
in part, except that the certificate is immediately suspended with 
respect to any failed engines as provided for in paragraph (a) of this 
section.
    (f) The Administrator may revoke a certificate of conformity for a 
family when the certificate has been suspended pursuant to paragraph (b) 
or (c) of this section if the proposed remedy for the nonconformity, as 
reported by the manufacturer to the Administrator, is one requiring a 
design change or changes to the engine and/or emission control system as 
described in the application for certification of the affected family.
    (g) Once a certificate has been suspended for a failed engine, as 
provided for in paragraph (a) of this section, the manufacturer shall 
take 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 standards by 
retesting the engine in accordance with these regulations.
    (2) Submit a written report to the Administrator, after successful 
completion of testing on the failed engine, which contains a description 
of the remedy and test results for each engine in addition to other 
information that may be required by this regulation.
    (h) Once a certificate for a failed family has been suspended 
pursuant to paragraph (b) or (c) of this section, the manufacturer shall 
take the following actions before the Administrator will consider 
reinstating the certificate:
    (1) Submit a written report to the Administrator which identifies 
the reason for the noncompliance of the engines, describes the proposed 
remedy, including a description of any proposed quality control and/or 
quality assurance measures to be taken by the manufacturer to prevent 
future occurrences of the problem, and states the date on which the 
remedies will be implemented.
    (2) Demonstrate that the engine family for which the certificate of 
conformity has been suspended does in fact comply with these regulations 
by testing engines selected from normal production runs of that engine 
family, at the plant(s), port facility(ies) or associated storage 
facility(ies) specified by the Administrator, in accordance with the 
conditions specified in the initial test order. If the manufacturer 
elects to continue testing individual engines after suspension of a 
certificate, the certificate is reinstated for an engine actually 
determined to be in conformance with the applicable standards through 
testing in accordance with the applicable test procedures, provided that 
the Administrator has not revoked the certificate pursuant to paragraph 
(f) of this section.
    (i) Once the certificate has been revoked for a family and the 
manufacturer desires to continue introduction into commerce of a 
modified version of that family, the following actions shall be taken 
before the Administrator may consider issuing a certificate for that 
modified family:
    (1) If the Administrator determines that the proposed change(s) in 
engine design may have an effect on emission performance deterioration, 
the Administrator shall notify the manufacturer, within five working 
days after receipt of the report in paragraph (f) of this section, 
whether subsequent testing under this subpart will be sufficient to 
evaluate the proposed change or changes or whether additional testing 
will be required; and

[[Page 266]]

    (2) After implementing the change or changes intended to remedy the 
nonconformity, the manufacturer shall demonstrate that the modified 
engine family does in fact conform with these regulations by testing 
engines selected from normal production runs of that modified engine 
family in accordance with the conditions specified in the initial test 
order. If the subsequent audit results in passing of the audit, the 
Administrator shall reissue the certificate or issue a new certificate, 
as the case may be, to include that family, provided that the 
manufacturer has satisfied the testing requirements of paragraph (i)(1) 
of this section. If the subsequent audit is failed, the revocation 
remains in effect. Any design change approvals under this subpart are 
limited to the family affected by the test order.
    (j) At any time subsequent to an initial suspension of a certificate 
of conformity for a test engine pursuant to paragraph (a) of this 
section, but not later than 15 days or such other period as may be 
allowed by the Administrator after notification of the Administrator's 
decision to suspend or revoke a certificate of conformity in whole or in 
part pursuant to paragraphs (b), (c), or (f) of this section, a 
manufacturer may request a hearing as to whether the tests have been 
properly conducted or any sampling methods have been 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 offered 
an opportunity for a hearing conducted in accordance with Sec. Sec. 
90.512, 90.513, and 90.514 and
    (2) Not apply to engines no longer in the possession of the 
manufacturer.
    (l) After the Administrator suspends or revokes a certificate of 
conformity pursuant to this section and prior to the commencement of a 
hearing under Sec. 90.512, if the manufacturer demonstrates to 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 engines when 
conducting an audit of a family subsequent to a failure of an SEA and 
while reauditing the failed family it may request that the Administrator 
conditionally reinstate the certificate for that family. The 
Administrator may reinstate the certificate subject to the condition 
that the manufacturer commits to recall all engines of that family 
produced from the time the certificate is conditionally reinstated if 
the family fails the subsequent audit at the level of the standard and 
to remedy any nonconformity at no expense to the owner.



Sec. 90.512  Request for public hearing.

    (a) If the manufacturer disagrees with the Administrator's decision 
to suspend, revoke or void a certificate or disputes the basis for an 
automatic suspension pursuant to Sec. 90.511(a), the manufacturer may 
request a public hearing.
    (b) The manufacturer's request shall be filed with the Administrator 
not later than 15 days after the Administrator's notification of his or 
her decision to suspend, revoke or void, unless otherwise specified by 
the Administrator. The manufacturer shall simultaneously serve two 
copies of this request upon the Director of the Engine Programs and 
Compliance Division and file two copies with the Hearing Clerk of the 
Agency. Failure of the manufacturer to request a hearing within the time 
provided constitutes a waiver of the right to a hearing. Subsequent to 
the expiration of the period for requesting a hearing as of right, the 
Administrator may, in his or her discretion and for good cause shown, 
grant the manufacturer a hearing to contest the suspension, revocation 
or voiding.
    (c) A manufacturer shall include in the request for a public 
hearing:
    (1) A statement as to which engine configuration(s) within a family 
is to be the subject of the hearing;
    (2) A concise statement of the issues to be raised by the 
manufacturer at the hearing, except that in the case of the hearing 
requested under Sec. 90.511(j), the hearing is restricted to the 
following issues:

[[Page 267]]

    (i) Whether tests have been properly conducted (specifically, 
whether the tests were conducted in accordance with applicable 
regulations under this part and whether test equipment was properly 
calibrated and functioning);
    (ii) Whether sampling plans have been properly applied 
(specifically, whether sampling procedures specified in Appendix A of 
this subpart were followed and whether there exists a basis for 
distinguishing engines produced at plants other than the one from which 
engines were selected for testing which would invalidate the 
Administrator's decision under Sec. 90.511(c));
    (3) A statement specifying reasons why the manufacturer believes it 
will prevail on the merits of each of the issues raised; and
    (4) A summary of the evidence which supports the manufacturer's 
position on each of the issues raised.
    (d) A copy of all requests for public hearings will be kept on file 
in the Office of the Hearing Clerk and will be made available to the 
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 Judge 
appointed pursuant to 5 U.S.C. 3105 (see also 5 CFR part 930 as 
amended).
    (b) The Judicial Officer shall be an officer or employee of the 
Agency appointed as a Judicial Officer by the Administrator, pursuant to 
this section, who shall meet the qualifications and perform functions as 
follows:
    (1) Qualifications. A Judicial Officer may be a permanent or 
temporary employee of the Agency who performs other duties for the 
Agency. The Judicial Officer shall not be employed by the Office of 
Enforcement or have any connection with the preparation or presentation 
of evidence for a hearing held pursuant to this subpart. The Judicial 
Officer shall be a graduate of an accredited law school and a member in 
good standing of a recognized Bar Association of any state or the 
District of Columbia.
    (2) Functions. The Administrator may consult with the Judicial 
Officer or delegate all or part of the Administrator's authority to act 
in a given case under this section to a Judicial Officer, provided that 
this delegation does not preclude the Judicial Officer from referring 
any motion or case to the Administrator when the Judicial Officer 
determines such referral to be appropriate.
    (c) For the purposes of this section, one or more Judicial Officers 
may be designated. As work requires, a Judicial Officer may be 
designated to act for the purposes of a particular case.
    (d) Summary decision. (1) In the case of a hearing requested under 
Sec. 90.511(j), when it clearly appears from the data and other 
information contained in the request for a hearing that no genuine and 
substantial question of fact exists with respect to the issues specified 
in Sec. 90.512(c)(2), the Administrator shall enter an order denying 
the request for a hearing and reaffirming the original decision to 
suspend or revoke a certificate of conformity, if this decision has been 
made pursuant to Sec. 90.511(e) at any time prior to the decision to 
deny the request for a hearing.
    (2) In the case of a hearing requested under Sec. 90.512 to 
challenge a proposed suspension of a certificate of conformity for the 
reasons specified in Sec. 90.511(d), when it clearly appears from the 
data and other information contained in the request for the hearing that 
no genuine and substantial question of fact exists with respect to the 
issue of whether the refusal to comply with the provisions of a test 
order or any other requirement of Sec. 90.503 was caused by conditions 
and circumstances outside the control of the manufacturer, the 
Administrator shall enter an order denying the request for a hearing and 
suspending the certificate of conformity.
    (3) Any order issued under paragraph (d)(1) or (d)(2) of this 
section has the force and effect of a final decision of the 
Administrator, as issued pursuant to Sec. 90.515.
    (4) If the Administrator determines that a genuine and substantial 
question of fact does exist with respect to any of the issues referred 
to in paragraphs (d)(1) and (d)(2) of this section, the Administrator 
shall grant the request for a hearing and publish a notice

[[Page 268]]

of public hearing in the Federal Register or by such other means as the 
Administrator finds appropriate to provide notice to the public.
    (e) Filing and service. (1) An original and two copies of all 
documents or papers required or permitted to be filed pursuant to this 
section and Sec. 90.512(c) must be filed with the Hearing Clerk of the 
Agency. Filing is considered timely if mailed, as determined by the 
postmark, to the Hearing Clerk within the time allowed by this section 
and Sec. 90.512(b). If filing is to be accomplished by mailing, the 
documents must be sent to the address set 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 in 
written form. Copies of written testimony will be served upon all 
parties as soon as practicable prior to the start of the hearing. A 
certificate of service will be provided on or accompany each document or 
paper filed with the Hearing Clerk. Documents to be served upon the 
Director of the Manufacturers Operations Division must be sent by 
registered 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 upon mailing.
    (f) Computation of time. (1) In computing any period of time 
prescribed or allowed by this section, except as otherwise provided, the 
day of the act or event from which the designated period of time begins 
to run is not included. Saturdays, Sundays, and federal legal holidays 
are included in computing the period allowed for the filing of any 
document or paper, except that when the period expires on a Saturday, 
Sunday, or federal legal holiday, the period is extended to include the 
next following business day.
    (2) A prescribed period of time within which a party is required or 
permitted to do an act is computed from the time of service, except that 
when service is accomplished by mail, three days will be added to the 
prescribed period.
    (g) Consolidation. The Administrator or the Presiding Officer in his 
or her discretion may consolidate two or more proceedings to be held 
under this section for the purpose of resolving one or more issues 
whenever it appears that consolidation will expedite or simplify 
consideration of these issues. Consolidation does not affect the right 
of any party to raise issues that could have been raised if 
consolidation had not occurred.
    (h) Hearing date. To the extent possible, hearings under Sec. 
90.512 will be scheduled to commence within 14 days of receipt 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 to Sec. 90.514.



Sec. 90.516  Treatment of confidential information.

    The provisions for treatment of confidential information described 
in Sec. 90.4 apply to this subpart.



 Sec. Appendix A to Subpart F of Part 90--Sampling Plans for Selective 
              Enforcement Auditing of Small Nonroad Engines

                   Table 1--Sampling Plan Code Letter
------------------------------------------------------------------------
                                                                  Code
                  Annual engine 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]
------------------------------------------------------------------------
                                        Pass   Fail          Pass   Fail
                Stage                   No.    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 269]]

 
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]
------------------------------------------------------------------------
                                                          Pass     Fail
                         Stage                            No.      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]
------------------------------------------------------------------------
                                                          Pass     Fail
                         Stage                            No.      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]
------------------------------------------------------------------------
                                                          Pass     Fail
                         Stage                            No.      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 270]]

 
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 applicable to 
engines and vehicles which are offered for importation or imported into 
the United States and for which the Administrator has promulgated 
regulations under subpart B of this part prescribing emission standards, 
but which are not covered by certificates of conformity issued under 
section 213 and section 206(a) of the Clean Air Act (that is, which are 
nonconforming engines as defined below) and under subpart B of this part 
at the time of importation or conditional importation, as applicable. 
Compliance with regulations under this subpart shall not relieve any 
person or entity from compliance with other applicable provisions of the 
Clean Air Act.
    (b) Regulations prescribing further procedures for the importation 
of 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 Service 
regulations.
    (c) Importers must complete the appropirate EPA declaration form 
before importing an engine. These forms are available on the Internet at 
http://www.epa.gov/OTAQ/imports/ or by phone at 734-214-4100. Importers 
must keep the forms for five years and make them available promptly upon 
request.

[60 FR 34598, July 3, 1995, as amended at 73 FR 59182, Oct. 8, 2008]



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 the Administrator 
under section 213 and section 206(a) of the Act.
    Nonconforming engine. An engine which is not covered by a 
certificate of conformity prior to final or conditional admission (or 
for which such coverage has not been adequately demonstrated to EPA).
    Original engine manufacturer (OEM). The entity which originally 
manufactured the engine.
    Original production (OP) year. The calendar year in which the engine 
was originally produced by the OEM.
    Original production (OP) years old. The age of an engine as 
determined by subtracting the original production year of the engine 
from the calendar year of importation.
    Production changes. Those changes in the engine configuration, 
equipment or calibration which are made by an OEM

[[Page 271]]

in the course of engine production and required to be reported under 
Sec. 90.123.
    United States. United States includes the Customs territory of the 
United States as defined in 19 U.S.C. 1202, and the Virgin Islands, 
Guam, American Samoa and the Commonwealth of the Northern Mariana 
Islands.



Sec. 90.603  [Reserved]



Sec. 90.604  General requirements.

    (a) A nonconforming engine offered for importation into the United 
States may only be imported for purposes other than resale under Sec. 
90.611, or under the provisions of Sec. 90.612, provided that an 
exemption or exclusion is granted by the Administrator.
    (b) Final admission shall not be granted unless:
    (1) The engine is imported for purposes other than resale under 
Sec. 90.611; or
    (2) The engine is exempted or excluded under Sec. 90.612.
    (c) An engine offered for importation may be admitted into the 
United States. In order to obtain admission, the importer must submit to 
the Administrator a written request for approval containing the 
following:
    (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 these regulations 
the engine is to be imported;
    (5) Identification of the place where the subject engine is to be 
stored until EPA approval of the importer's application to the 
Administrator for final admission;
    (6) Authorization for EPA enforcement officers to conduct 
inspections or testing otherwise permitted by the Act or regulations 
thereunder; and
    (7) Such other information as is deemed necessary by the 
Administrator.



Sec. 90.605-90.610  [Reserved]



Sec. 90.611  Importation for purposes other than resale.

    The provisions of 40 CFR 1054.630 apply for importation of 
nonconforming engines for personal use.

[74 FR 8423, Feb. 24, 2009]



Sec. 90.612  Exemptions and exclusions.

    (a) Individuals shall be eligible for importing engines into the 
United States under the provisions of this section, unless otherwise 
specified.
    (b) Notwithstanding other requirements of this subpart, an engine 
entitled to one of the temporary exemptions of this paragraph may be 
conditionally admitted into the United States if prior written approval 
for the conditional admission is obtained from the Administrator. 
Conditional admission is to be under U.S. Customs Service bond. The 
Administrator may request that the U.S. Customs Service require a 
specific bond amount to ensure compliance with the requirements of the 
Act and this subpart. A written request for approval from the 
Administrator is to contain the identification required in Sec. 
90.604(c) and information that demonstrates that the importer is 
entitled to the exemption. Noncompliance with provisions of this section 
may result in the forfeiture of the total amount of the bond or 
exportation of the engine. The following temporary exemptions are 
permitted by this paragraph:
    (1) Exemption for repairs or alterations. A person may conditionally 
import under bond a nonconforming engine solely for purpose of repairs 
or alterations. The engine may not be operated in the United States 
other than for the sole purpose of repair or alteration or shipment to 
the point of repair or alteration and to the port of export. It may not 
be sold or leased in the United States and is to be exported upon 
completion of the repairs or alterations.
    (2) Testing exemption. A test engine may be conditionally imported 
by a person subject to the requirements of Sec. 90.905. A test engine 
may be operated in the United States provided that the operation is an 
integral part of the test. This exemption is limited to a period not 
exceeding one year from the

[[Page 272]]

date of importation unless a request is made by the appropriate importer 
concerning the engine in accordance with Sec. 90.905(f) for a 
subsequent one-year period.
    (3) Display exemptions. (i) An engine intended solely for display 
may be conditionally imported subject to the requirements of Sec. 
90.907.
    (ii) A display engine may be imported by any person for purposes 
related to a business or the public interest. Such purposes do not 
include collections normally inaccessible or unavailable to the public 
on a daily basis, display of an engine at a dealership, private use, or 
other purpose that the Administrator determines is not appropriate for 
display exemptions. A display engine may not be sold in the United 
States and may not be operated in the United States except for the 
operation 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 is 
shorter. Two extensions of up to 12 months (one year) each are available 
upon approval by the Administrator. In no circumstances, however, may 
the total period of exemption exceed 36 months (three years).
    (c) Notwithstanding any other requirement of this subpart, an engine 
may be finally admitted into the United States under this paragraph if 
prior written approval for such final admission is obtained from the 
Administrator. Conditional admission of these engines under this subpart 
is not permitted for the purpose of obtaining such written approval from 
the Administrator. A request for approval is to contain the 
identification information required in Sec. 90.604(c) and information 
that demonstrates that the importer is entitled to the exemption or 
exclusion. The following exemptions or exclusions are permitted by this 
paragraph:
    (1) National security exemption. An engine may be imported under the 
national security exemption found at Sec. 90.908.
    (2) Hardship exemption. The Administrator may exempt on a case-by-
case basis an engine from federal emission requirements to accommodate 
unforeseen cases of extreme hardship or extraordinary circumstances.
    (3) Exemption for engines identical to United States certified 
versions. (i) A person (including businesses) is eligible for importing 
an engine into the United States under the provisions of this 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 an 
engine certified by the original equipment manufacturer (OEM) for sale 
in the United States or is proven to have been modified to be identical, 
in all material respects, to an engine certified by the OEM for sale in 
the United States according to complete written instructions provided by 
the OEM's United States representative, or his/her designee.
    (ii) Proof of Conformity. (A) Documentation submitted pursuant to 
this section for the purpose of proving conformity of individual engines 
is to contain sufficiently organized data or evidence demonstrating that 
the engine identified pursuant to Sec. 90.604(c) is identical, in all 
material respects, to an engine identified in an OEM's application for 
certification.
    (B) If the documentation does not contain all the information 
required by this part, or is not sufficiently organized, EPA will notify 
the importer of any areas of inadequacy, and that the documentation will 
not receive further consideration until the required information or 
organization is provided.
    (C) If EPA determines that the documentation does not clearly or 
sufficiently demonstrate that an engine is eligible for importation, EPA 
will notify the importer in writing.
    (D) If EPA determines that the documentation clearly and 
sufficiently demonstrates that an engine is eligible for importation, 
EPA will grant approval for importation and notify the importer in 
writing.
    (d) Foreign diplomatic and military personnel may import a 
nonconforming engine without bond. At the time of admission, the 
importer shall submit to the Administrator the written report required 
in Sec. 90.604(a) and a statement

[[Page 273]]

from the U.S. Department of State confirming qualification for this 
exemption. Foreign military personnel may, in lieu of a statement from 
the U.S. Department of State, submit to the Administrator a copy of 
their orders for duty in the United States. The engine may not be sold 
in the United States and must be exported if the individual's diplomatic 
status is no longer applicable, as determined by the Department of 
State, or the foreign military orders for duty in the United States are 
no longer applicable, unless subsequently brought into conformity with 
U.S. emission requirements.
    (e) Competition exclusion. A nonconforming engine may be 
conditionally admitted by any person provided the importer demonstrates 
to the Administrator that the engine is used to propel a nonroad vehicle 
used solely for competition and obtains prior written approval from the 
Administrator. A nonconforming engine imported pursuant to this 
paragraph may not be operated in the United States except for that 
operation incident and necessary for the competition purpose, unless 
subsequently brought into conformity with United States emission 
requirements in accordance with Sec. 90.612(c)(3).
    (f) Exclusions/exemptions based on date of original manufacture. (1) 
Notwithstanding any other requirements of this subpart, engines 
originally manufactured prior to model year 1997 are excluded from the 
requirements of the Act in accordance with section 213 of the Act and 
may be imported by any person.
    (2) Notwithstanding other requirements of this subpart, an engine 
not subject to an exclusion under Sec. 90.612(f)(1) but greater than 20 
original production (OP) years old is entitled to an exemption from the 
requirements of the Act, provided that it has not been modified in those 
20 OP years. At the time of admission, the importer shall submit to the 
Administrator the written report required in Sec. 90.604(c).
    (g) Applications for exemptions and exclusions provided for in 
paragraphs (b), (c), and (e) of this section are to be mailed to: U.S. 
Environmental Protection Agency, Office of Mobile Sources, Engine 
Compliance 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 a 
certificate of conformity other than in accordance with this subpart and 
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 of 
conditional 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 to Sec. 90.612(b), 
(d), or (e) and not granted final admission within the period of time 
specified for such conditional admission in the written prior approval 
obtained from EPA, or within such additional time as designated by the 
Administrator, is deemed to be unlawfully imported into the United 
States in violation of section 213(d) and section 203 of the Act, unless 
the engine has been delivered to the U.S. Customs Service for export or 
other disposition under applicable Customs laws and regulations. An 
engine not so delivered is subject to seizure by the U.S. Customs 
Service.
    (d) An importer who violates section 213(d) and section 203 of the 
Act is subject to a civil penalty under section 205 of the Act of not 
more than $32,500 for each engine subject to the violation. In addition 
to the penalty provided in the Act, where applicable, under the 
exemption provisions of Sec. 90.612(b), a person or entity who fails to 
deliver the engine to the U.S. Customs Service is liable for liquidated 
damages in the amount of the bond required by applicable Customs laws 
and regulations. The maximum penalty value listed in this paragraph (d) 
is shown for calendar year 2004. Maximum penalty limits for later years 
may be adjusted based on the Consumer Price Index. The specific 
regulatory provisions for

[[Page 274]]

changing the maximum penalties, published in 40 CFR part 19, reference 
the applicable U.S. Code citation on which the prohibited action is 
based.

[60 FR 34598, July 3, 1995, as amended at 70 FR 40450, July 13, 2005]



Sec. 90.614  Treatment of confidential information.

    The provisions for treatment of confidential information described 
in Sec. 90.4 apply to this subpart.



Sec. 90.615  Model year restrictions related to imported engines and 

equipment.

    The provisions of 40 CFR 1068.360 apply starting January 1, 2009. 
These provisions limit the importation of engines or equipment after new 
emission standards have started to apply if the engines or equipment 
were built before the emission standards took effect.

[73 FR 59182, Oct. 8, 2008]



         Subpart H_Manufacturer Production Line Testing Program

    Source: 64 FR 15245, Mar. 30, 1999, unless otherwise noted.



Sec. 90.701  Applicability.

    (a) The requirements of this subpart are applicable to all Phase 2 
nonroad handheld and nonhandheld engines families subject to the 
provisions of subpart A of this part unless otherwise exempted in this 
subpart.
    (b) The procedures described in this subpart are optional for small 
volume engine manufacturers and small volume engine families as defined 
in this part. Small volume engine manufacturers and small volume engine 
families for which the manufacturer opts not to conduct testing under 
this subpart pursuant to this paragraph shall remain subject to the 
Selective Enforcement Auditing procedures of subpart F of 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 this 
subpart, but shall remain subject to the Selective Enforcement Auditing 
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 engine family which 
can be described on the basis of gross power, emission control system, 
governed speed, injector size, engine calibration, and other parameters 
as designated by the Administrator.
    Test sample means the collection of engines selected from the 
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 line 
engines from each engine family according to the provisions of this 
subpart.
    (b) Production line engines must be tested using the test procedure 
specified in subpart E of this part except that the Administrator may 
approve minor variations that the Administrator deems necessary to 
facilitate efficient and economical testing where the manufacturer 
demonstrates to the satisfaction of the Administrator that such 
variations will not significantly impact the test results. Any 
adjustable engine parameter must be set to values or positions that are 
within the range recommended to the ultimate purchaser, unless otherwise 
specified by the Administrator. The Administrator may specify values 
within or without the range recommended 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 of 
the provisions of this subpart must establish, maintain, and retain the 
following adequately organized and indexed records:
    (1) General records. A description of all equipment used to test 
engines in accordance with Sec. 90.703. Subpart D of this part sets 
forth relevant equipment

[[Page 275]]

requirements in Sec. 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 each production 
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 engine 
when the test began and ended;
    (iii) The names of all supervisory personnel involved in the conduct 
of the production line test;
    (iv) A record and description of any adjustment, repair, preparation 
or modification performed prior to and/or subsequent to approval by the 
Administrator pursuant to Sec. 90.707(b)(1), giving the date, 
associated time, justification, name(s) of the authorizing personnel, 
and names of all supervisory personnel responsible for the conduct of 
the repair;
    (v) If applicable, the date the engine was shipped from the assembly 
plant, associated storage facility or port facility, and the date the 
engine was received at the testing facility;
    (vi) A complete record of all emission tests performed pursuant to 
this subpart (except tests performed directly by EPA), including all 
individual worksheets and/or other documentation relating to each test, 
or exact copies thereof, in accordance with the record requirements 
specified in Sec. Sec. 90.405 and 90.406; and
    (vii) A brief description of any significant events during testing 
not otherwise described under paragraph (a)(2) of this section, 
commencing with the test engine selection process and including such 
extraordinary events as engine damage during shipment.
    (3) The manufacturer must establish, maintain and retain general 
records, pursuant to paragraph (a)(1) of this section, for each test 
cell that can be used to perform emission testing under this subpart.
    (b) The manufacturer must retain all records required to be 
maintained under this subpart for a period of one year after completion 
of all testing required for the engine family in a model year. Records 
may be retained as hard copy (i.e., on paper) or reduced to 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 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 or actual production for each engine 
configuration within each engine family for which certification has been 
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 discretion to 
require a manufacturer to establish, maintain, retain or submit to EPA 
information not specified by this section and otherwise permitted by 
law.
    (e) All reports, submissions, notifications, and requests for 
approval made under this subpart must be addressed to: Manager, Engine 
Compliance Programs Group (6403J), U.S. Environmental Protection Agency, 
Washington, DC 20460.
    (f) The manufacturer must electronically submit the results of its 
production line testing using EPA's standardized format. The 
Administrator may exempt manufacturers from this requirement upon 
written request with supporting justification.



Sec. 90.705  Right of entry and access.

    (a) To allow the Administrator to determine whether a manufacturer 
is complying with the provisions of this subpart or other subparts of 
this part, one or more EPA enforcement officers may enter during 
operating hours and upon presentation of credentials any of the 
following places:
    (1) Any facility, including ports of entry, where any engine to be 
introduced into commerce or any emission-related component is 
manufactured, assembled, or stored;
    (2) Any facility where any test conducted pursuant to this or any 
other subpart or any procedure or activity connected with such test is 
or was performed;
    (3) Any facility where any test engine is present; and

[[Page 276]]

    (4) Any facility where any record required under Sec. 90.704 or 
other document relating to this subpart or any other subpart of this 
part is located.
    (b) Upon admission to any facility referred to in paragraph (a) of 
this section, EPA enforcement officers are authorized to perform the 
following inspection-related activities:
    (1) To inspect and monitor any aspect of engine manufacture, 
assembly, storage, testing and other procedures, and to inspect and 
monitor the facilities in which these procedures are conducted;
    (2) To inspect and monitor any aspect of engine test procedures or 
activities, including test engine selection, preparation and service 
accumulation, emission test cycles, and maintenance and verification of 
test equipment calibration;
    (3) To inspect and make copies of any records or documents related 
to the assembly, storage, selection, and testing of an engine; and
    (4) To inspect and photograph any part or aspect of any engine and 
any component used in the assembly thereof that is reasonably related to 
the purpose of the entry.
    (c) EPA enforcement officers are authorized to obtain reasonable 
assistance without cost from those in charge of a facility to help the 
officers perform any function listed in this subpart and they are 
authorized to request the manufacturer to make arrangements with those 
in charge of a facility operated for the manufacturer's benefit to 
furnish reasonable assistance without cost to EPA.
    (1) Reasonable assistance includes, but is not limited to, clerical, 
copying, interpretation and translation services; the making available 
on an EPA enforcement officer's request of personnel of the facility 
being inspected during their working hours to inform the EPA enforcement 
officer of how the facility operates and to answer the officer's 
questions; and the performance on request of emission tests on any 
engine which is being, has been, or will be used for production line or 
other testing.
    (2) By written request, signed by the Assistant Administrator for 
Air and Radiation, and served on the manufacturer, a manufacturer may be 
compelled to cause the personal appearance of any employee at such a 
facility before an EPA enforcement officer. Any such employee who has 
been instructed by the manufacturer to appear will be entitled to be 
accompanied, represented, and advised by counsel.
    (d) EPA enforcement officers are authorized to seek a warrant or 
court order authorizing the EPA enforcement officers to conduct the 
activities authorized in this section, as appropriate, to execute the 
functions specified in this section. EPA enforcement officers may 
proceed ex parte to obtain a warrant or court order whether or not the 
EPA enforcement officers first attempted to seek permission from the 
manufacturer or the party in charge of the facility(ies) in question to 
conduct the activities authorized in this section.
    (e) A manufacturer must permit an EPA enforcement officer(s) who 
presents a warrant or court order to conduct the activities authorized 
in this section as described in the warrant or court order. The 
manufacturer must also cause those in charge of its facility or a 
facility operated for its benefit to permit entry and access as 
authorized in this section pursuant to a warrant or court order whether 
or not the manufacturer controls the facility. In the absence of a 
warrant or court order, an EPA enforcement officer(s) may conduct the 
activities authorized in this section only upon the consent of the 
manufacturer 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 for any 
person to refuse to permit an EPA enforcement officer(s) to conduct 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 testing 
and manufacturing facilities in jurisdictions where local law does not 
prohibit an EPA enforcement officer(s) from conducting the entry and 
access activities specified in this section. EPA will not attempt to 
make any inspections which it has been informed local foreign law 
prohibits.

[[Page 277]]



Sec. 90.706  Engine sample selection.

    (a) At the start of each model year, the small SI engine 
manufacturer will begin to randomly select engines from each engine 
family for production line testing at a rate of one percent of the 
projected production of that family. Each engine will be selected from 
the end of the assembly line.
    (1) For newly certified engine families: After two engines are 
tested, the manufacturer will calculate the required sample size for the 
model year for each pollutant (HC+NOX(NMHC+NOX) 
and CO) according to the Sample Size Equation in paragraph (b) of this 
section.
    (2) For carry-over engine families: After one engine is tested, the 
manufacturer will combine the test with the last test result from the 
previous model year and then calculate the required sample size for the 
model year for each pollutant according to the Sample Size Equation in 
paragraph (b) of this section.
    (b)(1) Manufacturers will calculate the required sample size for the 
model year for each pollutant for each engine family using the Sample 
Size Equation in this paragraph. N is calculated for each pollutant from 
each test result. The higher of the two values for the number N 
indicates the number of tests required for the model year for an engine 
family. N is recalculated for each pollutant after each test. Test 
results used to calculate the variables in the following Sample Size 
Equation must be final deteriorated test results as specified 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 on the 
actual number of tests completed, n, as specified in the table in 
paragraph (b)(2) of this section. It defines one-tail, 95% confidence 
intervals.
[sigma] = actual test sample standard deviation calculated from the 
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]
------------------------------------------------------------------------

    (3) A manufacturer must distribute the testing of the remaining 
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, is 
recalculated using updated sample means, sample standard deviations and 
the appropriate 95% confidence coefficient.
    (5) A manufacturer must continue testing and updating each engine 
family's sample size calculations according to paragraphs (b)(1) through 
(b)(4) of this section until a decision is made to stop testing as 
described in paragraph (b)(6) of this section or a noncompliance 
decision is made pursuant to Sec. 90.710(b).
    (6) If, at any time throughout the model year, the calculated 
required

[[Page 278]]

sample size, N, for an engine family is less than or equal to the actual 
sample size, n, and the sample mean, x, for HC + NOX 
(NMHC+NOX) and CO is less than or equal to the FEL or 
standard if no FEL, the manufacturer may stop testing that engine 
family.
    (7) If, at any time throughout the model year, the sample mean, x, 
for HC + NOX (NMHC+NOX) or CO is greater than the 
FEL or standard if no FEL, the manufacturer must continue testing that 
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 year or 
one percent of projected annual production for that engine family for 
that model year.
    (9) Manufacturers may elect to test additional engines. Additional 
engines, whether tested in accordance with the testing procedures 
specified in Sec. 90.707 or not, may not be included in the Sample Size 
and Cumulative Sum equation calculations as defined in paragraph (b)(1) 
of this section and Sec. 90.708(a), respectively. However, such 
additional test results may be used as appropriate to ``bracket'' or 
define the boundaries of the production duration of any emission 
nonconformity determined under this subpart. Such additional test data 
must be identified and provided to EPA with the submittal of the 
official CumSum results.
    (c) The manufacturer must produce and assemble the test engines 
using its normal production and assembly process for engines to be 
distributed into commerce.
    (d) No quality control, testing, or assembly procedures shall be 
used on any test engine or any portion thereof, including parts and 
subassemblies, that have not been or will not be used during the 
production and assembly of all other engines of that family, unless the 
Administrator approves the modification in production or assembly 
procedures in advance.

[64 FR 15245, Mar. 30, 1999; 64 FR 34313, June 25, 1999; 64 FR 35256, 
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 this 
subpart, the prescribed test procedures are specified in subpart E of 
this part.
    (2) The Administrator may, on the basis of a written application by 
a manufacturer, prescribe test procedures other than those specified in 
paragraph (a)(1) of this section for any small SI engine the 
Administrator determines is not susceptible to satisfactory testing 
using procedures specified in paragraph (a)(1) of this section.
    (b)(1) The manufacturer may not adjust, repair, prepare, or modify 
any test engine and may not perform any emission test on any test engine 
unless this adjustment, repair, preparation, modification and/or test is 
documented in the manufacturer's engine assembly and inspection 
procedures and is actually performed by the manufacturer on every 
production line engine or unless this adjustment, repair, preparation, 
modification and/or test is required or permitted under this subpart or 
is approved in advance by the Administrator.
    (2) The Administrator may adjust or cause to be adjusted any engine 
parameter which the Administrator has determined to be subject to 
adjustment for certification, Production Line Testing and Selective 
Enforcement Audit testing, to any setting within the physically 
adjustable range of that parameter, as determined by the Administrator, 
prior to the performance of any test. However, if the idle speed 
parameter is one which the Administrator has determined to be subject to 
adjustment, the Administrator may not adjust it or require that it be 
adjusted to any setting which causes a lower engine idle speed than 
would have been possible within the physically adjustable range of the 
idle speed parameter if the manufacturer had accumulated 12 hours of 
service on the engine under paragraph (c) of this section, all other 
parameters being identically adjusted for the purpose of the comparison. 
The manufacturer may be requested to supply information necessary to 
establish an alternate minimum idle speed. The Administrator, in making 
or specifying these adjustments, may consider the

[[Page 279]]

effect of the deviation from the manufacturer's recommended setting on 
emission performance characteristics as well as the likelihood that 
similar settings will occur on in-use engines. In determining 
likelihood, the Administrator may consider factors such as, but not 
limited to, the effect of the adjustment on engine performance 
characteristics and information from similar in-use engines.
    (c) Service accumulation. (1) Unless otherwise approved by the 
Administrator, prior to performing exhaust emission production line 
testing, the manufacturer may accumulate up to 12 hours of service on 
each test engine. For catalyst-equipped engines, the manufacturer must 
accumulate a number of hours equal to the number of hours accumulated to 
represent stabilized emissions on the engine used to obtain 
certification.
    (2) Service accumulation must be performed in a manner using good 
engineering judgment to obtain emission results representative of 
production line engines.
    (d) Unless otherwise approved by the Administrator, the manufacturer 
may not perform any maintenance on test engines after selection for 
testing.
    (e) If an engine is shipped to a remote facility for production line 
testing, and an adjustment or repair is necessary because of shipment, 
the engine manufacturer must perform the necessary adjustment or repair 
only after the initial test of the engine, except in cases where the 
Administrator has determined that the test would be impossible or unsafe 
to perform or would permanently damage the engine. Engine manufacturers 
must report to the Administrator, in the quarterly report required by 
Sec. 90.709(e), all adjustments or repairs performed on test engines 
prior to each test.
    (f) If an engine cannot complete the service accumulation or an 
emission test because of a malfunction, the manufacturer may request 
that the Administrator authorize either the repair of that engine or its 
deletion from the test sequence.
    (g) Testing. A manufacturer must test engines with the test 
procedure specified in subpart E of this part to demonstrate compliance 
with the applicable FEL (or standard where there is no FEL). If 
alternate or special test procedures pursuant to regulations at Sec. 
90.120 are used in certification, then those alternate procedures must 
be used in production line testing.
    (h) Retesting. (1) If an engine manufacturer reasonably determines 
that an emission test of an engine is invalid because of a procedural 
error, test equipment problem, or engine performance problem that causes 
the engine to be unable to safely perform a valid test, the engine may 
be retested. A test is not invalid simply because the emission results 
are high relative to other engines of the family. Emission results from 
all tests must be reported to EPA. The engine manufacturer must also 
include a detailed explanation of the reasons for invalidating any test 
in the quarterly report required in Sec. 90.709(e). If a test is 
invalidated because of an engine performance problem, the manufacturer 
must document in detail the nature of the problem and the repairs 
performed in order to use the after-repair test results for the original 
test results.
    (2) Routine retests may be conducted if the manufacturer conducts 
the same number of tests on all engines in the family. The results of 
these tests must be averaged according to procedures of Sec. 90.709.



Sec. 90.708  Cumulative Sum (CumSum) procedure.

    (a) (1) Manufacturers must construct separate CumSum Equations for 
each regulated pollutant (HC+NOX (NMHC+NOX) and 
CO) for each engine family. Test results used to calculate the variables 
in the CumSum Equations must be final deteriorated test results as 
defined in Sec. 90.709(c). The CumSum Equation is constructed as 
follows:

Ci=max[0 0R (Ci-1+Xi-(FEL+F))]

Where:

Ci=The current CumSum statistic.
Ci-1=The previous CumSum statistic. Prior to any 
testing, the CumSum statistic=0 (i.e. C0=0).
Xi=The current emission test result for an individual engine.
FEL=Family Emission Limit (the standard if no FEL).
F=.25x[sigma].


[[Page 280]]


    (2) After each test pursuant to paragraph (a)(1) of this section, 
Ci is compared to the action limit, H, the quantity which the 
CumSum statistic must exceed, in two consecutive tests, before the 
engine family may be determined to be in noncompliance for a regulated 
pollutant for purposes of Sec. 90.710.

Where:

H=The Action Limit. It is 5.0x[sigma], and is a function of the standard 
deviation, [sigma].
[sigma]=is the sample standard deviation and is recalculated after each 
test.

    (b) After each engine is tested, the CumSum statistic shall be 
promptly updated according to the CumSum Equation in paragraph (a) of 
this section.
    (c)(1) If, at any time during the model year, a manufacturer amends 
the application for certification for an engine family as specified in 
Sec. 90.122(a) by performing an engine family modification (i.e. a 
change such as a running change involving a physical modification to an 
engine, a change in specification or setting, the addition of a new 
configuration, or the use of a different deterioration factor) with no 
changes to the FEL (where applicable), all previous sample size and 
CumSum statistic calculations for the model year will remain unchanged.
    (2) If, at any time during the model year, a manufacturer amends the 
application for certification for an engine family as specified in Sec. 
90.122 (a) by modifying its FEL (where applicable) for future 
production, as a result of an engine family modification, the 
manufacturer must continue its calculations by inserting the new FEL 
into the sample size equation as specified in Sec. 90.706(b)(1) and 
into the CumSum equation in paragraph (a) of this section. All previous 
calculations remain unchanged. If the sample size calculation indicates 
that additional tests are required, then those tests must be performed. 
CumSum statistic calculations must not indicate that the family has 
exceeded the action limit for two consecutive tests. Where applicable, 
the manufacturer's final credit report as required by Sec. 90.210 must 
break out the credits that result from each FEL and corresponding CumSum 
analysis for the set of engines built to each FEL.
    (3) If, at any time during the model year, a manufacturer amends the 
application for certification for an engine family as specified in Sec. 
90.122 (a) (or for an affected part of the year's production in cases 
where there were one or more mid-year engine family modifications), by 
modifying its FEL (where applicable) for past and/or future production, 
without performing an engine modification, all previous sample size and 
CumSum statistic calculations for the model year must be recalculated 
using the new FEL. If the sample size calculation indicates that 
additional tests are required, then those tests must be performed. The 
CumSum statistic recalculation must not indicate that the family has 
exceeded the action limit for two consecutive tests. Where applicable, 
the manufacturer's final credit report as required by Sec. 90.210 must 
break out the credits that result from each FEL and corresponding CumSum 
analysis for the set of engines built to each FEL.



Sec. 90.709  Calculation and reporting of test results.

    (a) Initial test results are calculated following the applicable 
test procedure specified in Sec. 90.707 (a). The manufacturer rounds 
these results to the number of decimal places contained in the 
applicable emission standard expressed to one additional significant 
figure.
    (b) Final test results are calculated by summing the initial test 
results derived in paragraph (a) of this section for each test engine, 
dividing by the number of tests conducted on the engine, and rounding to 
the same number of decimal places contained in the applicable standard 
expressed to one additional significant figure.
    (c) The final deteriorated test results for each test engine are 
calculated by applying the appropriate deterioration factors, derived in 
the certification process for the engine to the final test results, and 
rounding to the same number of decimal places contained in the 
applicable standard.
    (d) If, at any time during the model year, the CumSum statistic 
exceeds the applicable action limit, H, in two consecutive tests for any 
regulated pollutant, (HC+NOX (NMHC+NOX) or CO) the 
engine family may be determined

[[Page 281]]

to be in noncompliance and the manufacturer must notify EPA by 
contacting its official EPA certification representative within ten 
working days of such exceedance by the CumSum statistic.
    (e) Within 45 calendar days of the end of each quarter, each engine 
manufacturer must submit to the Administrator a report which includes 
the following information:
    (1) The location and description of the manufacturer's or other's 
exhaust emission test facilities which were utilized to conduct testing 
reported pursuant to this section;
    (2) Total production and sample sizes, N and n, for each engine 
family;
    (3) The FEL (standard, if no FEL) against which each engine family 
was tested;
    (4) A description of the process to obtain engines on a random 
basis;
    (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 to 
testing;
    (ii) Location where service accumulation was conducted and 
description of accumulation procedure and schedule;
    (iii) Test number, date, test procedure used, initial test results 
before and after rounding, final test results before and after rounding 
and final deteriorated test results for all exhaust emission tests, 
whether valid or invalid, and the reason for invalidation, if 
applicable;
    (iv) A complete description of any adjustment, modification, repair, 
preparation, maintenance, and/or testing which was performed on the test 
engine, was not reported pursuant to any other paragraph of this 
subpart, and will not be performed on all other production engines;
    (v) A CumSum analysis, as required in Sec. 90.708, of the 
production line test results for each engine family; and
    (vi) Any other information the Administrator may request relevant to 
the determination whether the new engines being manufactured by the 
manufacturer do in fact conform with the regulations with respect to 
which 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 as required 
by Sec. 90.711(g);
    (8) The date of the end of the engine manufacturer's model year 
production for each engine family; and
    (9) The following signed statement and endorsement by an authorized 
representative of the manufacturer:

    This report is submitted pursuant to Sections 213 and 208 of the 
Clean Air Act. This production line testing program was conducted in 
complete conformance with all applicable regulations under 40 CFR Part 
90. No emission-related changes to production processes or quality 
control procedures for the engine family tested have been made during 
this production line testing program that affect engines from the 
production line. All data and information reported herein is, to the 
best of (Company Name) knowledge, true and accurate. I am aware of the 
penalties associated with violations of the Clean Air Act and the 
regulations thereunder. (Authorized Company Representative.)



Sec. 90.710  Compliance with criteria for production line testing.

    (a) A failed engine is one whose final deteriorated test results 
pursuant to Sec. 90.709(c), for HC+NOX (NMHC+NOX) 
or CO exceeds the applicable Family Emission Limit (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 two 
consecutive tests.



Sec. 90.711  Suspension and revocation of certificates of conformity.

    (a) The certificate of conformity is suspended with respect to any 
engine failing pursuant to Sec. 90.710(a) effective from the time that 
testing of that engine is completed.
    (b) The Administrator may suspend the certificate of conformity for 
an engine family which is determined to be in noncompliance pursuant to 
Sec. 90.710(b). This suspension will not

[[Page 282]]

occur before thirty days after the engine family is determined to be in 
noncompliance and the Administrator has notified the manufacturer of its 
intent to suspend. During this thirty day period the Administrator will 
work with the manufacturer to achieve appropriate production line 
changes to avoid the need to halt engine production, if possible. The 
Administrator will approve or disapprove any such production line 
changes proposed to address a family that has been determined to be in 
noncompliance under this subpart within 15 days of receipt. If the 
Administrator does not approve or disapprove such a proposed change 
within such time period, the proposed change shall be considered 
approved.
    (c) If the results of testing pursuant to the regulations in this 
subpart indicate that engines of a particular family produced at one 
plant of a manufacturer do not conform to the regulations in this part 
with respect to which the certificate of conformity was issued, the 
Administrator may suspend the certificate of conformity with respect to 
that family for engines manufactured by the manufacturer at all other 
plants.
    (d) Notwithstanding the fact that engines described in the 
application for certification may be covered by a certificate of 
conformity, the Administrator may suspend such certificate immediately 
in whole or in part if the Administrator finds any one of the following 
infractions to be substantial:
    (1) The manufacturer refuses to comply with any of the requirements 
of this subpart.
    (2) The manufacturer submits false or incomplete information in any 
report or information provided to the Administrator under this subpart.
    (3) The manufacturer renders inaccurate any test data submitted 
under this subpart.
    (4) An EPA enforcement officer is denied the opportunity to conduct 
activities authorized in this subpart and a warrant or court order is 
presented to the manufacturer or the party in charge of the facility in 
question.
    (5) An EPA enforcement officer is unable to conduct activities 
authorized in Sec. 90.705 because a manufacturer has located its 
facility in a foreign jurisdiction where local law prohibits those 
activities.
    (e) The Administrator shall notify the manufacturer in writing of 
any suspension or revocation of a certificate of conformity in whole or 
in part, except that the certificate is immediately suspended with 
respect to any failed engines as provided for in paragraph (a) of this 
section.
    (f) The Administrator may revoke a certificate of conformity for an 
engine family after the certificate has been suspended pursuant to 
paragraph (b) or (c) of this section if the proposed remedy for the 
nonconformity, as reported by the manufacturer to the Administrator, is 
one requiring a design change or changes to the engine and/or emission 
control system as described in the application for certification of the 
affected engine family.
    (g) Once a certificate has been suspended for a failed engine, as 
provided for in paragraph (a) of this section, the manufacturer must 
take the following actions before the certificate is reinstated for that 
failed engine:
    (1) Remedy the nonconformity;
    (2) Demonstrate that the engine conforms to the applicable standards 
(FELs, where applicable) by retesting the engine in accordance with 
these regulations; and
    (3) Submit a written report to the Administrator, described in Sec. 
90.709(e)(7), after successful completion of testing on the failed 
engine, which contains a description of the remedy and test results for 
each engine in addition to other information that may be required by 
this part.
    (h) Once a certificate for a failed engine family has been suspended 
pursuant to paragraph (b) or (c) of this section, the manufacturer must 
take the following actions before the Administrator will consider 
reinstating the certificate:
    (1) Submit a written report to the Administrator which identifies 
the reason for the noncompliance of the engines, describes the proposed 
remedy, including a description of any proposed quality control and/or 
quality assurance measures to be taken by the manufacturer to prevent 
future occurrences of the problem, and states the date on

[[Page 283]]

which the remedies will be implemented; and
    (2) Demonstrate that the engine family for which the certificate of 
conformity has been suspended does in fact comply with the regulations 
of this part by testing as many engines as needed so that the CumSum 
statistic, as calculated in Sec. 90.708(a), falls below the action 
limit. Such testing must comply with the provisions of this part. If the 
manufacturer elects to continue testing individual engines after 
suspension of a certificate, the certificate is reinstated for any 
engine actually determined to be in conformance with the Family Emission 
Limits (or standards if no FEL) through testing in accordance with the 
applicable test procedures, provided that the Administrator has not 
revoked the certificate pursuant to paragraph (f) of this section.
    (i) Once the certificate has been revoked for an engine family, if 
the manufacturer desires to continue introduction into commerce of a 
modified version of that family, the following actions must be taken 
before the Administrator may issue a certificate for that modified 
family:
    (1) If the Administrator determines that the proposed change(s) in 
engine design may have an effect on emission performance deterioration, 
the Administrator shall notify the manufacturer within five working days 
after receipt of the report in paragraph (h)(1) of this section whether 
subsequent testing under this subpart will be sufficient to evaluate the 
proposed change or changes or whether additional testing will be 
required;
    (2) After implementing the change or changes intended to remedy the 
nonconformity, the manufacturer must demonstrate that the modified 
engine family does in fact conform with the regulations of this part by 
testing as many engines as needed from the modified engine family so 
that the CumSum statistic, as calculated in Sec. 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 this 
section are met, the Administrator shall reissue the certificate or 
issue a new certificate, as the case may be, to include that family. As 
long as the CumSum statistic remains above the action limit, the 
revocation remains in effect.
    (j) At any time subsequent to a suspension of a certificate of 
conformity for a test engine pursuant to paragraph (a) of this section, 
but not later than 15 days (or such other period as may be allowed by 
the Administrator) after notification of the Administrator's decision to 
suspend or revoke a certificate of conformity in whole or in part 
pursuant to paragraph (b), (c), or (f) of this section, a manufacturer 
may request a hearing as to whether the tests have been properly 
conducted or any sampling methods have been 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 offered 
an opportunity for a hearing conducted in accordance with Sec. Sec. 
90.712 and 90.713; and
    (2) Not apply to engines no longer in the possession of the 
manufacturer.
    (l) After the Administrator suspends or revokes a certificate of 
conformity pursuant to this section and prior to the commencement of a 
hearing under Sec. 90.712, if the manufacturer demonstrates to the 
Administrator's satisfaction that the decision to suspend 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 engines while 
conducting subsequent testing of the noncomplying family, a manufacturer 
may request that the Administrator conditionally reinstate the 
certificate for that family. The Administrator may reinstate the 
certificate subject to the following condition: the manufacturer must 
commit to performing offsetting measures that remedy the nonconformity 
at no expense to the owners, and which are approved in advance by the 
Administrator for all engines of that family produced from the time the 
certificate is conditionally reinstated if the CumSum statistic does not 
fall below the action limit.



Sec. 90.712  Request for public hearing.

    (a) If the manufacturer disagrees with the Administrator's decision 
to

[[Page 284]]

suspend or revoke a certificate or disputes the basis for an automatic 
suspension pursuant to Sec. 90.711(a), the manufacturer may request a 
public hearing.
    (b) The manufacturer's request shall be filed with the Administrator 
not later than 15 days after the Administrator's notification of his or 
her decision to suspend or revoke, unless otherwise specified by the 
Administrator. The manufacturer shall simultaneously serve two copies of 
this request upon the Manager of the Engine Compliance Programs Group 
and file two copies with the Hearing Clerk for the Agency. Failure of 
the manufacturer to request a hearing within the time provided 
constitutes a waiver of the right to a hearing. Subsequent to the 
expiration of the period for requesting a hearing as of right, the 
Administrator may, in his or her discretion and for good cause shown, 
grant the manufacturer a hearing to contest the suspension or 
revocation.
    (c) A manufacturer shall include in the request for a public 
hearing:
    (1) A statement as to which engine configuration(s) within a family 
is to be the subject of the hearing; and
    (2) A concise statement of the issues to be raised by the 
manufacturer at the hearing, except that in the case of the hearing 
requested under Sec. 90.711(j), the hearing is restricted to the 
following issues:
    (i) Whether tests have been properly conducted (specifically, 
whether the tests were conducted in accordance with applicable 
regulations under this part and whether test equipment was properly 
calibrated and functioning);
    (ii) Whether sampling plans and statistical analyses have been 
properly applied (specifically, whether sampling procedures and 
statistical analyses specified in this subpart were followed and whether 
there exists a basis for distinguishing engines produced at plants other 
than the one from which engines were selected for testing which would 
invalidate the Administrator's decision under Sec. 90.711(c));
    (3) A statement specifying reasons why the manufacturer believes it 
will prevail on the merits of each of the issues raised; and
    (4) A summary of the evidence which supports the manufacturer's 
position on each of the issues raised.
    (d) A copy of all requests for public hearings will be kept on file 
in the Office of the Hearing Clerk and will be made available to the 
public during Agency business hours.



Sec. 90.713  Administrative procedures for public hearing.

    The administrative procedures for a public hearing requested under 
this subpart shall be those procedures set forth in the regulations 
found at Sec. Sec. 90.513 through 90.516. References in Sec. 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) and Sec. 90.512(b) shall 
be deemed to mean Sec. 90.711(j), Sec. 90.712(c)(2), Sec. 90.711(e), 
Sec. 90.712, Sec. 90.711(d), Sec. 90.703, and Sec. 90.712(c) and 
Sec. 90.712(b), respectively. References to ``test orders'' in Sec. 
90.513 are not 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 nonroad 
engines and vehicles subject to the provisions of subpart A of part 90. 
The requirement to report emission-related defects affecting a given 
class or category of engines will remain applicable for five years from 
the end of the calendar year in which such engines were manufactured.
    (b) Phase 2 engines subject to provisions of subpart B of this part 
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 CFR 
85.1801(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) is 
deemed to mean section 213 of the Act.
    (e) Reference to ``family particulate emission limits'' as defined 
in part 86 promulgated under section 202 of the Act'' in 40 CFR 
85.1803(a) and 85.1805(a)(1) is deemed to mean ``family emission 
limits'' as defined in subpart

[[Page 285]]

C of this part 90 promulgated under section 213 of the Act''.
    (f) Reference to ``vehicles or engines'' throughout 40 CFR part 85, 
subpart S is deemed to mean ``Phase 2 nonroad small SI engines at or 
below 19 kW.''
    (g) In addition to the requirements in 40 CFR 85.1805(a)(9) for 
Phase 2 engines include a telephone number provided by the manufacturer, 
which may be used to report difficulty in obtaining recall 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 given them in 
the Act. The definitions of 40 CFR 85.1801 also apply to this part.
    Emission-related defect means a defect in design, materials, or 
workmanship in a device, system, or assembly described in the approved 
application for certification which affects any applicable parameter or 
specification enumerated in 40 CFR part 85, Appendix VIII.
    Voluntary emission recall means a repair, adjustment, or 
modification program voluntarily initiated and conducted by a 
manufacturer to remedy any emission-related defect for which 
notification 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 of these 
regulations:
    (1) The manufacturer determines, in accordance with procedures 
established by the manufacturer to identify either safety-related or 
performance defects, that a specific emission-related defect exists; and
    (2) A specific emission-related defect exists in 25 or more engines 
of a given engine family manufactured in the same certificate or 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 to 
ultimate purchasers.
    (c) The manufacturer must submit defect information reports to EPA's 
Engine Compliance Programs Group not more than 15 working days after an 
emission-related defect is found to affect 25 or more engines 
manufactured in the same certificate or model year. Information required 
by paragraph (d) of this section that is either not available within 15 
working days or is significantly revised must be submitted to EPA's 
Engine Compliance Programs Group as it becomes available.
    (d) Each defect report must contain the following information in 
substantially 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 potentially 
affected by the defect including make, model, model year, calendar year 
produced, and any other information required to identify the engines 
affected.
    (4) For each class or category of engine described in response to 
paragraph (d)(3) of this section, the following must also be provided:
    (i) The number of engines known or estimated to have the defect and 
an explanation of the means by which this number was determined.
    (ii) The address of the plant(s) at which the potentially defective 
engines were produced.
    (5) An evaluation of the emissions impact of the defect and a 
description of any operational problems which a defective engine might 
exhibit.
    (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 recall 
campaign involving 25 or more engines, the manufacturer must submit a 
report describing the manufacturer's voluntary emissions recall plan as 
prescribed by this section within 15 working days of the date owner 
notification was begun. The report must contain the following:

[[Page 286]]

    (1) A description of each class or category of engines recalled 
including the number of engines to be recalled, the model year, the 
make, the model, and such other information as may be required to 
identify the engines recalled;
    (2) A description of the specific modifications, alterations, 
repairs, corrections, adjustments, or other changes to be made to 
correct the engines affected by the emission-related defect;
    (3) A description of the method by which the manufacturer will 
notify engine owners and, if applicable, the method by which the 
manufacturer will determine the names and addresses of engine owners;
    (4) A description of the proper maintenance or use, if any, upon 
which the manufacturer conditions eligibility for repair under the 
recall plan, an explanation of the manufacturer's reasons for imposing 
any such conditions, and a description of the proof to be required of an 
engine owner to demonstrate compliance with any such conditions;
    (5) A description of the procedure to be followed by engine owners 
to obtain correction of the nonconformity. This may include designation 
of the date on or after which the owner can have the nonconformity 
remedied, the time reasonably necessary to perform the labor to remedy 
the defect, and the designation of facilities at which the defect can be 
remedied;
    (6) A description of the class of persons other than dealers and 
authorized warranty agents of the manufacturer who will remedy the 
defect;
    (7) When applicable, three copies of any letters of notification to 
be sent engine owners;
    (8) A description of the system by which the manufacturer will 
assure that an adequate supply of parts is available to perform the 
repair under the plan, and that the supply remains both adequate and 
responsive to owner demand;
    (9) Three copies of all necessary instructions to be sent to those 
persons who are to perform the repair under the recall plan;
    (10) A description of the impact of the proposed changes on fuel 
consumption, performance, and safety of each class or category of 
engines to be recalled;
    (11) A sample of any label to be applied to engines which 
participated in the voluntary recall campaign.
    (b) The manufacturer must submit at least one report on the progress 
of the recall campaign. Such report must be submitted no later than 18 
months from the date notification was begun and include the following 
information:
    (1) The methods used to notify both engine owners, dealers and other 
individuals involved in the recall campaign;
    (2) The number of engines known or estimated to be affected by the 
emission-related defect and an explanation of the means by which this 
number was determined;
    (3) The number of engines actually receiving repair under the plan; 
and
    (4) The number of engines determined to be ineligible for remedial 
action 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 the voluntary 
recall progress report to: Group Manager, Engine Compliance Programs 
Group, (6403-J), Environmental Protection Agency, Washington, DC 20460.
    (b) Retain the information gathered by the manufacturer to compile 
the reports for not less than five years from the date of the 
manufacture of the engines. The manufacturer must make this information 
available to duly authorized officials of the EPA upon request.

[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 does 
not affect a manufacturer's responsibility to file reports or 
applications, obtain approval, or give notice under any provision of 
law.



Sec. 90.807  Disclaimer of production warranty applicability.

    (a) The act of filing an Emission Defect Information Report is 
inconclusive

[[Page 287]]

as to the existence of a defect subject to the warranty provided by 
subpart L of this part.
    (b) A manufacturer may include on each page of its Emission Defect 
Information Report a disclaimer stating that the filing of a Defect 
Information Report pursuant to these regulations is not conclusive as to 
the applicability of the warranty provided by subpart L of this part.



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 of any 
class or category of engines, although properly maintained and used, do 
not conform to the regulations prescribed under section 213 of the Act 
when in actual use throughout their useful life (as defined under Sec. 
90.105), the Administrator shall immediately notify the manufacturer of 
such nonconformity and require the manufacturer to submit a plan for 
remedying the nonconformity of the engines with respect to which such 
notification is given.
    (i) The manufacturer's plan shall provide that the nonconformity of 
any such engines which are properly used and maintained will be remedied 
at the expense of the manufacturer.
    (ii) If the manufacturer disagrees with such determination of 
nonconformity and so advises the Administrator, the Administrator shall 
afford the manufacturer and other interested persons an opportunity to 
present their views and evidence in support thereof at a public hearing. 
Unless, as a result of such hearing, the Administrator withdraws such 
determination of nonconformity, the Administrator shall, within 60 days 
after the completion of such hearing, order the manufacturer to provide 
prompt notification of such nonconformity in accordance with paragraph 
(a)(2) of this section. The manufacturer shall comply in all respects 
with the requirements of this subpart.
    (2) Any notification required to be given by the manufacturer under 
paragraph (a)(1) of this section with respect to any class or category 
of engines shall be given to dealers, ultimate purchasers, and 
subsequent purchasers (if known) in such manner and containing such 
information as required in subparts I and M of this part.
    (3)(i) Prior to an EPA ordered recall, the manufacturer may perform 
a voluntary emissions recall pursuant to regulations at Sec. 90.804. 
Such manufacturer is subject to the reporting and recordkeeping 
requirements of Sec. 90.805.
    (ii) Once EPA determines that a substantial number of engines fail 
to conform with the requirements of section 213 of the Act or this part, 
the manufacturer will not have the option of a voluntary recall.
    (b) The manufacturer bears all cost obligation a dealer incurs as a 
result of a requirement imposed by paragraph (a) of this section. The 
transfer of any such cost obligation from a manufacturer to a dealer 
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 be made 
only if the owner of such vehicle or engine voluntarily permits such 
inspection to be made, except as may be provided by any state or local 
inspection program.

[64 FR 15251, Mar. 30, 1999]



  Subpart J_Exclusion and Exemption of Nonroad Engines from Regulations



Sec. 90.901  Applicability.

    The requirements of subpart J are applicable to all nonroad engines 
and vehicles subject to the provisions of subpart A of part 90.



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 of Sec. 90.1003.
    Export exemption means an exemption granted under Sec. 90.1004(b) 
for the purpose of exporting new nonroad engines.
    National security exemption means an exemption granted under Sec. 
90.1004(b) for the purpose of national security.
    Manufacturer-owned nonroad engine means an uncertified nonroad 
engine

[[Page 288]]

owned and controlled by a nonroad engine manufacturer and used in a 
manner not involving lease or sale by itself or in a vehicle employed 
from year to year in the ordinary course of business for product 
development, production method assessment, and market promotion 
purposes.
    Testing exemption means an exemption granted under Sec. 90.1004(b) 
for the purpose of research, investigations, studies, demonstrations or 
training, but not including national security.



Sec. 90.903  Exclusions, application of section 216 (10) and (11) of the Act.

    (a) For the purpose of determining the applicability of section 
216(10) of the Act, an internal combustion engine (including the fuel 
system) that is not used in a motor vehicle is deemed a nonroad engine, 
if it meets the definition in subpart A of this part. For the purpose of 
determining the applicability of section 216(11) of the Act, a vehicle 
powered by a nonroad engine is deemed a nonroad vehicle, if it meets the 
definition in subpart A of this part.
    (b) EPA will maintain a list of models of nonroad engines and models 
of nonroad vehicles that have been determined to be excluded because 
they are used solely for competition. This list will be available to the 
public and may be obtained by writing to the following address: Group 
Manager, Engine Compliance Programs Group, Engine Programs and 
Compliance Division (6403J) Environmental Protection Agency, 1200 
Pennsylvania Ave., NW., Washington, DC 20460.
    (c) Upon written request with supporting documentation, EPA will 
make written determinations as to whether certain engines are or are not 
nonroad engines. Engines that are determined not to be nonroad engines 
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 under Sec. 90.905.
    (b) Any nonroad engine manufacturer may request a national security 
exemption under Sec. 90.908.
    (c) For nonroad engine manufacturers, nonroad engines manufactured 
for export purposes are exempt without application, subject to the 
provisions of Sec. 90.909.
    (d) For eligible manufacturers, as determined by Sec. 90.906, 
manufacturer-owned nonroad engines are exempt without application, 
subject to the provisions of Sec. 90.906.
    (e) For any person, display nonroad engines are exempt without 
application, subject to the provisions of Sec. 90.907.



Sec. 90.905  Testing exemption.

    (a) Any person requesting a testing exemption must demonstrate the 
following:
    (1) That the proposed test program has a purpose which constitutes 
an appropriate basis for an exemption in accordance with Sec. 
90.1004(b), and in accordance with subsection (b) of this section;
    (2) That the proposed test program necessitates the granting of an 
exemption, in accordance with subsection (c) of this section;
    (3) That the proposed test program exhibits reasonableness in scope, 
in accordance with subsection (d) of this section; and
    (4) That the proposed test program exhibits a degree of control 
consonant with the purpose of the program and EPA's monitoring 
requirements, in accordance with subsection (e) of this section.
    (b) With respect to the purpose of the proposed test program, an 
appropriate purpose would be research, investigations, studies, 
demonstrations, or training, but not national security. A concise 
statement 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 a 
practicable manner without performing or causing to be performed one or 
more of the prohibited acts under Sec. 90.1003. In appropriate 
circumstances, time constraints may be a sufficient basis for necessity, 
but the cost of certification alone, in the absence of extraordinary 
circumstances, is not a basis for necessity.
    (d) With respect to reasonableness, a test program must exhibit a 
duration

[[Page 289]]

of reasonable length and affect a reasonable number of engines. 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 incorporate 
procedures consistent with the purpose of the test and be capable of 
affording EPA monitoring capability. As a minimum, required items of 
information include:
    (1) The technical nature of the test;
    (2) The site of the test;
    (3) The duration and accumulated engine operation associated with 
the test;
    (4) The ownership arrangement with regard to the engines involved in 
the test;
    (5) The intended final disposition of the engines;
    (6) The manner in which the engines used in the test will be 
identified, 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 testing 
exemption to cover nonroad engines intended for use in test programs 
planned or anticipated over the course of a subsequent one-year period. 
Unless otherwise required by the Director, Engine Programs and 
Compliance Division, a manufacturer requesting such an exemption need 
only furnish the information required by paragraphs (a)(1) and (d)(2) of 
this section along with a description of the recordkeeping and control 
procedures that will be employed to assure that the engines are 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 by Sec. 
90.902, is exempt from Sec. 90.1003, without application, if the 
manufacturer complies with the following terms and conditions:
    (1) The manufacturer must establish, maintain, and retain the 
following adequately organized and indexed information on each exempted 
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 to these 
records to EPA authorized representatives as required by Sec. 90.506.
    (3) Unless the requirement is waived or an alternative procedure is 
approved by the Director, Engine Programs and Compliance Division, the 
manufacturer must permanently affix a label to each nonroad 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 removed without 
destruction or defacement;
    (iii) State in the English language and in block letters and 
numerals of a color that contrasts with the background of the label, the 
following information:
    (A) The label heading ``Emission Control Information;''
    (B) Full corporate name and trademark of manufacturer;
    (C) Engine displacement, engine family identification, and model 
year of engine; or person or office to be contacted for further 
information about the engine;
    (D) The statement ``This nonroad engine is exempt from the 
prohibitions of 40 CFR 90.1003.''
    (4) No provision of paragraph (a)(3) of this section prevents a 
manufacturer from including any other information it desires on the 
label.

[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 used 
solely for display purposes, will only be operated incident and 
necessary to the display purpose, and will not be sold unless an 
applicable certificate of conformity has been received or the engine has 
been finally admitted pursuant to subpart G of this part, no request for 
exemption of the engine is necessary.

[[Page 290]]



Sec. 90.908  National security exemption.

    (a)(1) Any nonroad engine, otherwise subject to this part, which is 
used in a vehicle or equipment that exhibits substantial features 
ordinarily associated with military combat such as armor and/or 
permanently affixed weaponry and which will be owned and/or used by an 
agency of the federal government with responsibility for national 
defense, will be considered exempt from this part for purposes of 
national security. No request for exemption is necessary.
    (2) Manufacturers may request a national security exemption for any 
nonroad engine, otherwise subject to this part, which does not meet the 
conditions described in paragraph (a)(1) of this section. A manufacturer 
requesting a national security exemption must state the purpose for 
which the exemption is required and the request must be endorsed by an 
agency of the federal government charged with responsibility for 
national defense.
    (b) EPA will maintain a list of models of nonroad engines (and the 
vehicles or equipment which use them) that have been granted a national 
security exemption under paragraph (a)(2) of this section. This list 
will be available to the public and may be obtained by writing to the 
following address: Group Manager, Engine Compliance Programs 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 so labeled 
or tagged on the outside of the container and on the engine itself, is 
subject to the provisions of Sec. 90.1003, unless the importing country 
has new nonroad engine emission standards which differ from EPA 
standards.
    (b) For the purpose of paragraph (a) of this section, a country 
having no standards, whatsoever, is deemed to be a country having 
emission standards which differ from EPA standards.
    (c) EPA will maintain a list of foreign countries that have in force 
nonroad emission standards identical to U.S. EPA standards and have so 
notified EPA. This list may be obtained by writing to the following 
address: Group Manager, Engine Compliance Programs Group, Engine 
Programs and Compliance Division (6403-J), Environmental Protection 
Agency, Washington, DC 20460. New nonroad engines exported to such 
countries must comply with U.S. EPA certification regulations.
    (d) It is a condition of any exemption for the purpose of export 
under Sec. 90.1004(b) that such exemption be void ab initio with 
respect to a new nonroad engine intended solely for export if such 
nonroad engine is sold, or offered for sale, to an ultimate purchaser 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 made 
pursuant to Sec. 90.905 or Sec. 90.908, EPA determines it is 
appropriate to grant such an exemption, a memorandum of exemption is to 
be prepared and submitted to the person requesting the exemption. The 
memorandum is to set forth the basis for the exemption, its scope, and 
such terms and conditions as are deemed necessary. Such terms and 
conditions generally include, but are not limited to, agreements by the 
applicant to conduct the exempt activity in the manner described to EPA, 
create and maintain adequate records accessible to EPA at reasonable 
times, employ labels for the exempt engines setting forth the nature of 
the exemption, take appropriate measures to assure that the terms of the 
exemption are met, and advise EPA of the termination of the activity and 
the ultimate disposition of the engines.
    (b) Any exemption granted pursuant to paragraph (a) of this section 
is deemed to cover any subject engine only to the extent that the 
specified terms and conditions are complied with. A breach of any term 
or condition causes the exemption to be void ab initio with respect to 
any engine. Consequently, the causing or the performing of an act 
prohibited under Sec. 90.1003(a) (1) or (3), other than in

[[Page 291]]

strict conformity with all terms and conditions of this exemption, 
renders the person to whom the exemption is granted, and any other 
person to whom the provisions of Sec. 90.1003 are applicable, liable to 
suit under sections 204 and 205 of the Act.



Sec. 90.911  Submission of exemption requests.

    Requests for exemption or further information concerning exemptions 
and/or the exemption request review procedure should be addressed to: 
Group Manager, Engine Compliance Programs Group, Engine Programs and 
Compliance Division (6403J), Environmental Protection Agency, 
Washington, DC 20460.

[64 FR 15252, Mar. 30, 1999]



Sec. 90.912  Treatment of confidential information.

    The provisions for treatment of confidential information described 
in 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 it is 
in an engine family that has a valid certificate of conformity showing 
that it meets emission standards and other requirements under 40 CFR 
part 1048 for the appropriate model year.
    (b) The only requirements or prohibitions from this part that apply 
to an engine that is exempt under this section are in this section.
    (c) If your engines do not have the certificate required in 
paragraph (a) of this section, they will be subject to the provisions of 
this part. Introducing these engines into commerce without a valid 
exemption or certificate of conformity violates the prohibitions in 
Sec. 90.1003.
    (d) Engines exempted under this section are subject to all the 
requirements affecting engines under 40 CFR part 1048. The requirements 
and restrictions of 40 CFR part 1048 apply to anyone manufacturing these 
engines, anyone manufacturing equipment that uses these engines, and all 
other persons in the same manner as if these were nonroad spark-ignition 
engines above 19 kW.
    (e) Engines exempted under this section may not generate or use 
emission credits under this part 90.

[70 FR 40450, July 13, 2005]



      Subpart K_Prohibited Acts and General Enforcement Provisions



Sec. 90.1001  Applicability.

    The requirements of subpart K are applicable to all nonroad engines 
and vehicles subject to the provisions of subpart A of part 90.



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 given them 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 or 
vehicles for distribution in commerce, the sale, the offering for sale, 
or the introduction, or delivery for introduction, into commerce, of any 
new nonroad engine manufactured after the applicable effective date 
under this part unless such engine is covered by a certificate of 
conformity issued (and in effect) under regulations found in this part.
    (ii) In the case of any person, except as provided by regulation of 
the Administrator, the importation into the United States of any new 
nonroad engine manufactured after the applicable effective date under 
this part 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 or 
copying of records or to fail to make reports or provide information 
required under Sec. 90.1004.
    (ii) For a person to fail or refuse to permit entry, testing or 
inspection 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 have 
tests performed as required under Sec. Sec. 90.119, 90.504, 90.703, 
90.1004, 90.1204.

[[Page 292]]

    (iv) For a person to fail to establish or maintain records as 
required under Sec. Sec. 90.209, 90.704, 90.805, or 90.1004.
    (v) For a person to fail to submit a remedial plan as required under 
Sec. 90.808.
    (3)(i) For a person to remove or render inoperative a device or 
element of design installed on or in a nonroad engine in compliance with 
regulations under this part prior to its sale and delivery to the 
ultimate purchaser, or for a person knowingly to remove or render 
inoperative such a device or element of design after the sale and 
delivery to the ultimate purchaser; or
    (ii) For a person to manufacture, sell or offer to sell, or install, 
a part or component intended for use with, or as part of, a nonroad 
engine, where a principal effect of the part or component is to bypass, 
defeat, or render inoperative a device or element of design installed on 
or in a nonroad engine in compliance with regulations issued under this 
part, and where the person knows or should know that the part or 
component is being offered for sale or installed for this use or put to 
such use.
    (4) For a manufacturer of a new nonroad engine subject to standards 
prescribed under this part:
    (i) To sell, offer for sale, or introduce or deliver into commerce, 
a nonroad engine unless the manufacturer has complied with the 
requirements of Sec. 90.1103.
    (ii) To sell, offer for sale, or introduce or deliver into commerce, 
a nonroad engine unless a label or tag is affixed to the engine in 
accordance with regulations under this part.
    (iii) To fail or refuse to comply with the requirements of Sec. 
90.808.
    (iv) To provide directly or indirectly in any communication to the 
ultimate purchaser or a subsequent purchaser that the coverage of a 
warranty under the Act is conditioned upon use of a part, component, or 
system manufactured by the manufacturer or a person acting for the 
manufacturer or under its control, or conditioned upon service performed 
by such persons, except as provided in subpart L of this part.
    (v) To fail or refuse to comply with the terms and conditions of the 
warranty under subpart L of this part.
    (5) For a manufacturer of new nonroad vehicles to distribute in 
commerce, sell, offer for sale, or introduce into commerce, nonroad 
vehicles which contain an engine not covered by a certificate of 
conformity (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 the 
residence time requirements of Paragraph (a) (2)(iii) of this Section of 
the nonroad engine definition in Sec. 90.3.
    (b) For the purposes of enforcement of this part, the following 
apply:
    (1) Nothing in paragraph (a) of this section is to be construed to 
require the use of manufacturer parts in maintaining or repairing a 
nonroad engine.
    (2) Actions for the purpose of repair or replacement of a device or 
element of design or any other item are not considered prohibited acts 
under Sec. 90.1003(a) if the actions are a necessary and temporary 
procedure, the device or element is replaced upon completion of the 
procedure, and the action results in the proper functioning of the 
device or element of design.
    (3) The followiong provisions apply for converting nonroad engines 
to use alternative fuels.
    (i) Until December 31, 2009, converting an engine to use a clean 
alternative fuel (as defined in Title II of the Act) is not considered a 
prohibited act under paragraph (a) of this section if the engine 
complies with the applicable standard when operating on the alternative 
fuel. Also, in the case of engines converted to dual fuel or flexible 
use, the action must result in the proper functioning of the nonroad 
engine when it operates on conventional fuel.
    (ii) The provisions of 40 CFR 1054.645 apply starting January 1, 
2010.
    (4) Certified nonroad engines shall be used in all equipment or 
vehicles that are self-propelled, portable, transportable, or are 
intended to be propelled while performing their function, unless the 
manufacturer of the equipment or vehicle can prove that the vehicle or 
equipment will be used in a manner consistent with paragraph (2) of the 
definition of Nonroad engine in Sec. 90.3. Nonroad vehicle and 
equipment manufacturers may continue to use noncertified nonroad engines 
built prior to the applicable implementation date of

[[Page 293]]

the Phase 1 rule until noncertified engine inventories are depleted; 
further after the applicable implementation of the Phase 2 regulations 
in this part, nonroad vehicle and equipment manufacturers may continue 
to use Phase 1 engines until Phase 1 engine inventories are depleted. 
Stockpiling (i.e., build up of an inventory of uncertified engines or 
Phase 1 engines beyond normal business practices to avoid or delay 
compliance 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 in a 
piece of nonroad equipment that was originally produced with an engine 
manufactured prior to the applicable implementation date as described in 
Sec. Sec. 90.2, 90.103 and 90.106, or with an engine that was 
originally produced in a model year in which less stringent standards 
under this part were in effect, shall not be subject to the requirements 
of Sec. 90.106 or prohibitions and provisions of paragraphs (a)(1) and 
(b)(4) of this section provided that:
    (i) The engine manufacturer has ascertained that no engine produced 
by itself or the manufacturer of the engine that is being replaced, if 
different, and certified to the requirements of this subpart, is 
available with the appropriate physical or performance characteristics 
to repower the equipment; and
    (ii) The engine manufacturer or its agent takes ownership and 
possession of the old engine in partial exchange for the replacement 
engine; and
    (iii) The replacement engine is clearly labeled with the following 
language, or similar alternate language approved in advance by the 
Administrator:

THIS ENGINE DOES NOT COMPLY WITH FEDERAL NONROAD OR ON-HIGHWAY EMISSION 
REQUIREMENTS. SALE OR INSTALLATION OF THIS ENGINE FOR ANY PURPOSE OTHER 
THAN AS A REPLACEMENT ENGINE IN A NONROAD VEHICLE OR PIECE OF NONROAD 
EQUIPMENT WHOSE ORIGINAL ENGINE WAS NOT CERTIFIED, OR WAS CERTIFIED TO 
LESS STRINGENT EMISSION STANDARDS THAN THOSE THAT APPLY TO THE YEAR OF 
MANUFACTURE OF THIS ENGINE, IS A VIOLATION OF FEDERAL LAW SUBJECT TO 
CIVIL PENALTY;


and
    (iv) Where the replacement engine is intended to replace an engine 
built after the applicable implementation date of regulations under this 
part, but built to less stringent emission standards than are currently 
applicable, the replacement engine shall be identical in all material 
respects to a certified configuration of the same or later model year as 
the engine being replaced.
    (v) In cases where an engine is to be imported for replacement 
purposes under the provisions of this paragraph (b)(5), the term 
``engine manufacturer'' shall not apply to an individual or other entity 
that does not possess a current Certificate of Conformity issued by EPA 
under this part.
    (6)(i) Regulations elsewhere in this part notwithstanding, for three 
model years after the phase-in of each set of Class I through Class V 
Phase 2 standards; i.e. up to and including August 1, 2010 for Class I 
engines, up to and including model year 2008 for Class II engines, up to 
and including model year 2008 for Class III and Class IV engines, and up 
to and including model year 2010 for Class V engines, 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 standards (or identified and labeled by their manufacturer to be 
identical to engines previously certified under Phase 1 standards), 
provided the equipment manufacturer has demonstrated to the satisfaction 
of the Administrator that no certified Phase 2 engine is available with 
suitable physical or performance characteristics to power a piece of 
equipment in production prior to the initial effective date of Phase 2 
standards, as indicated in Sec. 90.103(a). The equipment manufacturer 
must also certify to the Administrator that the equipment model has not 
undergone any redesign which could have facilitated conversion of the 
equipment to accommodate a Phase 2 engine. These provisions do not apply 
to Class I-A and Class I-B engines.
    (ii) Regulations elsewhere in this part notwithstanding, for the 
duration of the Phase 2 rule in this part, equipment manufacturers that 
produce

[[Page 294]]

small volume equipment models, as defined in this part, for a Class I 
model in production prior to August 1, 2007, or a Class II model in 
production prior to the 2001 model year, or a Class III or Class IV 
model in production prior to the 2002 model year, or a Class V model in 
production prior to the 2004 model year, may continue to use in that 
small volume equipment model, and engine manufacturers may continue to 
supply, engines certified to Phase 1 requirements (or identified and 
labeled by their manufacturer to be identical to engines previously 
certified under Phase 1 standards). To be eligible for this provision, 
the equipment manufacturer must have demonstrated to the satisfaction of 
the Administrator that no certified Phase 2 engine is available with 
suitable physical or performance characteristics to power the small 
volume equipment model. The equipment manufacturer must also certify to 
the Administrator that the equipment model has not undergone any 
redesign which could have facilitated conversion of the equipment to 
accommodate a Phase 2 engine. These provisions do not apply to Class I-A 
and Class I-B engines.
    (iii) An equipment manufacturer which is unable to obtain suitable 
Phase 2 engines and which can not obtain relief under any other 
provision of this part, may, prior to the date on which the manufacturer 
would become in noncompliance with the requirement to use Phase 2 
engines, apply to the Administrator to be allowed to continue using 
Phase 1 engines, through August 1, 2008 for Class I engines, through the 
2006 model year for Class II engines, through the 2006 model year for 
Class III and Class IV engines, and through the 2008 model 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 the 
manufacturer's best efforts and is the result of an extraordinary action 
on the part of the engine manufacturer that was outside the control of 
and could not be reasonably foreseen by the equipment manufacturer; such 
as canceled production or shipment, last minute certification failure, 
unforeseen engine cancellation, plant closing, work stoppage or other 
such circumstance; and
    (B) the inability to market the particular equipment will bring 
substantial economic hardship to the equipment manufacturer resulting in 
a major impact on the equipment manufacturer's solvency.
    (iv) The written permission from the Administrator to the equipment 
manufacturer shall serve as permission for the engine manufacturer to 
provide such Phase 1 engines required by the equipment manufacturers 
under this paragraph (b)(6) of this section. As Phase 1 engines, these 
engines are exempt from Production Line Testing requirements under 
subpart H of this part and in-use testing provisions under subpart M of 
this part, and are excluded from the certification averaging, banking 
and trading program of subpart C of this part.
    (7) Actions for the purpose of installing or removing altitude kits 
and performing other changes to compensate for altitude change as 
described in the application for certification pursuant to Sec. 
90.107(d) and approved at the time of certification pursuant to Sec. 
90.108(a) are not considered prohibited acts 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; 73 FR 59182, Oct. 
8, 2008]



Sec. 90.1004  General enforcement provisions.

    (a) Information collection provisions. (1) Every manufacturer of new 
nonroad engines and other persons subject to the requirements of this 
part must establish and maintain records, perform tests where such 
testing is not otherwise reasonably available under this part, make 
reports and provide information the Administrator may reasonably require 
to determine whether the manufacturer or other person has acted or is 
acting in compliance with this part or to otherwise carry out the 
provisions of this part, and must, upon request of an officer or 
employee duly designated by the Administrator, permit the officer or 
employee at reasonable times to have access to and copy such records. 
The manufacturer shall

[[Page 295]]

comply in all respects with the requirements of subpart I of this part.
    (2) For purposes of enforcement of this part, an officer or employee 
duly designated by the Administrator, upon presenting appropriate 
credentials, is authorized:
    (i) To enter, at reasonable times, any establishment of the 
manufacturer, or of any person whom the manufacturer engaged to perform 
any activity required under paragraph (a)(1) of this section, for the 
purposes of inspecting or observing any activity conducted pursuant to 
paragraph (a)(1) of this section; and
    (ii) To inspect records, files, papers, processes, controls, and 
facilities used in performing an activity required by paragraph (a)(1) 
of this section, by the manufacturer or by a person whom the 
manufacturer engaged to perform the activity.
    (b) Exemption provision. The Administrator may exempt a new nonroad 
engine from Sec. 90.1003 upon such terms and conditions as the 
Administrator may find necessary for the purpose of export, research, 
investigations, studies, demonstrations, or training, or for reasons of 
national security.
    (c) Importation provision. (1) A new nonroad engine or vehicle 
offered for importation or imported by a person in violation of Sec. 
90.1003 is to be refused admission into the United States, but the 
Secretary of the Treasury and the Administrator may, by joint 
regulation, provide for deferring a final determination as to admission 
and authorizing the delivery of such a nonroad engine offered for import 
to the owner or consignee thereof upon such terms and conditions 
(including the furnishing of a bond) as may appear to them appropriate 
to insure that the nonroad engine will be brought into conformity with 
the standards, requirements, and limitations applicable to it under this 
part.
    (2) If a nonroad engine is finally refused admission under this 
paragraph, the Secretary of the Treasury shall cause disposition thereof 
in accordance with the customs laws unless it is exported, under 
regulations prescribed by the Secretary, within 90 days of the date of 
notice of the refusal or additional time as may be permitted pursuant to 
the regulations.
    (3) Disposition in accordance with the customs laws may not be made 
in such manner as may result, directly or indirectly, in the sale, to 
the ultimate purchaser, of a new nonroad engine that fails to comply 
with applicable standards of the Administrator under this part.
    (d) Export provision. A new nonroad engine intended solely for 
export, and so labeled or tagged on the outside of the container and on 
the engine itself, shall be subject to the provisions of Sec. 90.1003, 
except that if the country that is to receive the engine has emission 
standards that differ from the standards prescribed under subpart B of 
this part, then the engine must comply with 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 to 
restrain violations of Sec. 90.1003.
    (b) Actions to restrain such violations 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 in any district may run into any 
other district.



Sec. 90.1006  Penalties.

    (a) Violations. A violation of the requirements of this subpart is a 
violation of the applicable provisions of the Act and is subject 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 violates Sec. 90.1003(a)(3)(i), is subject 
to a civil penalty of not more than $32,500 for each violation.
    (2) A person other than a manufacturer or dealer who violates Sec. 
90.1003(a)(3)(i) or any person who violates Sec. 90.1003(a)(3)(ii) is 
subject to a civil penalty of not more 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 respect to each 
nonroad engine.

[[Page 296]]

    (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 of violation.
    (6) The maximum penalty values listed in this section are shown for 
calendar year 2004. Maximum penalty limits for later years may be 
adjusted based on the Consumer Price Index. The specific regulatory 
provisions for changing the maximum penalties, published in 40 CFR part 
19, reference the applicable U.S. Code citation on which the prohibited 
action is based.
    (b) Civil actions. The Administrator may commence a civil action to 
assess and recover any civil penalty under paragraph (a) of this 
section.
    (1) An action under this paragraph may be brought in the district 
court of the United States for the district in which the violation is 
alleged to have occurred, the defendant resides, or the Administrator's 
principal place of business is located, and in which the court has 
jurisdiction to assess a civil penalty.
    (2) In determining the amount of a civil penalty to be assessed 
under this paragraph, the court is to take into account the gravity of 
the violation, the economic benefit or savings (if any) resulting from 
the violation, the size of the violator's business, the violator's 
history of compliance with Title II of the Act, action taken to remedy 
the violation, the effect of the penalty on the violator's ability to 
continue in business, and such other matters as justice may require.
    (3) In any such action, subpoenas for witnesses who are required to 
attend a district court in any district may run into any other district.
    (c) Administrative assessment of certain penalties. (1) 
Administrative penalty authority. In lieu of commencing a civil action 
under paragraph (b) of this section, the Administrator shall assess any 
civil penalty prescribed in paragraph (a) of this section, except that 
the maximum amount of penalty sought against each violator in a penalty 
assessment proceeding can not exceed $270,000, unless the Administrator 
and the Attorney General jointly determine that a matter involving a 
larger penalty amount is appropriate for administrative penalty 
assessment. Any such determination by the Administrator and the Attorney 
General is not subject to judicial review. Assessment of a civil penalty 
is made by an order made on the record after opportunity for a hearing 
held in accordance with the procedures found at part 22 of this chapter. 
The Administrator 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 any civil 
penalty assessed under this subsection, the Administrator is to take 
into account the gravity of the violation, the economic benefit or 
savings (if any) resulting from the violation, the size of the 
violator's business, the violator's history of compliance with Title II 
of the Act, action taken to remedy the violation, the effect of the 
penalty on the violator's ability to continue in business, and such 
other matters as justice may require.
    (3) Effect of administrator's action. (i) Action by the 
Administrator under this paragraph does not affect or limit the 
Administrator's authority to enforce any provisions of this part; except 
that any violation with respect to which the Administrator has commenced 
and is diligently prosecuting an action under this part, or for which 
the Administrator has issued a final order not subject to further 
judicial review and for which the violator has paid a penalty assessment 
under this part may not be the subject of a civil penalty action under 
paragraph (b) of this section.
    (ii) No action by the Administrator under this part affects a 
person's obligation to comply with a section of this part.
    (4) Finality of order. An order issued under this part becomes final 
30 days after its issuance unless a petition for judicial review is 
filed under paragraph (c)(5) of this section.
    (5) Judicial review. (i) A person against whom a civil penalty is 
assessed in accordance with this part

[[Page 297]]

may seek review of the assessment in the United States District Court 
for the District of Columbia or for the district in which the violation 
is alleged to have occurred, in which such person resides, or where the 
person's principle place of business is located, within the 30-day 
period beginning on the date a civil penalty order is issued. The person 
must simultaneously send a copy of the filing by certified mail to the 
Administrator and the Attorney General.
    (ii) The Administrator must file in the court within 30 days a 
certified copy, or certified index, as appropriate, of the record on 
which the order was issued. The court is not to set aside or remand any 
order issued in accordance with the requirements of this paragraph 
unless substantial evidence does not exist in the record, taken as a 
whole, to support the finding of a violation or unless the 
Administrator's assessment of the penalty constitutes an abuse of 
discretion, and the court is not to impose additional civil penalties 
unless the Administrator's assessment of the penalty constitutes an 
abuse of discretion. In any proceedings, the United States may seek to 
recover civil penalties assessed under this section.
    (6) Collection. (i) If any person fails to pay an assessment of a 
civil penalty imposed by the Administrator as provided in this part 
after the order making the assessment has become final or after a court 
in an action brought under paragraph (c)(5) of this section has entered 
a final judgment in favor of the Administrator, the Administrator is to 
request that the Attorney General bring a civil action in an appropriate 
district court to recover the amount assessed (plus interest at rates 
established pursuant to section 6621(a)(2) of the Internal Revenue Code 
of 1986 from the date of the final order or the date of final judgment, 
as the case may be). In such an action, the validity, amount, and 
appropriateness of the penalty are not subject to review.
    (ii) A person who fails to pay on a timely basis the amount of an 
assessment of a civil penalty as described in paragraph (c)(6)(i) of 
this section is required to pay, in addition to that amount and 
interest, the United States' enforcement expenses, including attorney's 
fees and costs for collection proceedings, and a quarterly nonpayment 
penalty for each quarter during which the failure to pay persists. The 
nonpayment penalty is an amount equal to 10 percent of the aggregate 
amount of that person's penalties and nonpayment penalties which are 
unpaid as of the beginning of such quarter.

[60 FR 34598, July 3, 1995, as amended at 70 FR 40450, July 13, 2005]



Sec. 90.1007  Bonding requirements related to compliance, enforcement, and 

warranty assurance.

    The bonding provisions of 40 CFR 1054.120(f)(4) and 1054.690 apply 
for all 2010 and later model year engines starting January 1, 2010. 
These provisions include measures to ensure that certifying 
manufacturers are able to cover any potential compliance or enforcement 
actions under the Clean Air Act and to meet their warranty obligations.

[73 FR 59182, Oct. 8, 2008]



        Subpart L_Emission Warranty and Maintenance Instructions



Sec. 90.1101  Applicability.

    The requirements of subpart L are applicable to all nonroad engines 
and vehicles subject to the provisions of subpart A of part 90.



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 two 
years of engine use from the date of sale to the ultimate purchaser. 
Manufacturers of handheld engines subject to Phase 2 standards may apply 
to the Administrator for approval for a warranty period of less than two 
years for handheld engines that are subject to severe service in 
seasonal equipment and are likely to run their full useful life hours in 
less than two years. Such an application must be made prior to 
certification. Alternatively, manufacturers of handheld engines subject 
to Phase 2

[[Page 298]]

standards may apply to the Administrator for approval for a warranty 
period equal to the useful life of the engine or two years, whichever is 
less, if the equipment in which the engine 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 to the 
ultimate purchaser and each subsequent purchaser that the engine is 
designed, built and equipped so as to conform at the time of sale with 
applicable regulations under section 213 of the Act, and the engine is 
free from defects in materials and workmanship which cause such engine 
to fail to conform with applicable regulations for its warranty period.
    (c) In the case of a nonroad engine part, the manufacturer or 
rebuilder of the part may certify according to Sec. 85.2112 of this 
chapter that use of the part will not result in a failure of the engine 
to comply with emission standards promulgated in this part.
    (d) For the purposes of this section, the owner of any nonroad 
engine warranted under this part is responsible for the proper 
maintenance of the engine as stated in the manufacturer's written 
instructions. Proper maintenance generally includes replacement and 
service, at the owner's expense at a service establishment or facility 
of the owner's choosing, such items as spark plugs, points, condensers, 
and any other part, item, or device related to emission control (but not 
designed for emission control) under the terms of the last 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.
    (e) Starting with the 2010 model year, you must meet the conditions 
specified in 40 CFR 1054.120(f) to ensure that owners will be able to 
promptly obtain warranty repairs.
    Describe in your application for certification how you will meet 
these conditions.

[60 FR 34598, July 3, 1995, as amended at 64 FR 15253, Mar. 30, 1999; 65 
FR 24314, Apr. 25, 2000; 73 FR 59182, Oct. 8, 2008]



Sec. 90.1104  Furnishing of maintenance instructions to ultimate purchaser.

    (a) The manufacturer must furnish or cause to be furnished to the 
ultimate purchaser of each new nonroad engine written instructions for 
the maintenance needed to assure proper functioning of the emission 
control system.
    (b) The manufacturer must provide in boldface type on the first page 
of the written maintenance instructions notice that maintenance, 
replacement, or repair of the emission control devices and systems may 
be performed by any nonroad engine repair establishment or individual.
    (c) The instructions under paragraph (b) of this section will not 
include any condition on the ultimate purchaser's using, in connection 
with such engine, any component or service (other than a component or 
service provided without charge under the terms of the purchase 
agreement) which is identified by brand, trade, or corporate name. Such 
instructions also will not directly or indirectly distinguish between 
service performed by the franchised dealers of such manufacturer or any 
other service establishments with which such manufacturer has a 
commercial relationship and service performed by independent nonroad 
engine repair facilities with which such manufacturer has no commercial 
relationship.
    (d) The prohibition of paragraph (c) of this section may be waived 
by the Administrator if:
    (1) The manufacturer satisfies the Administrator that the engine 
will function properly only if the component or service so identified is 
used in connection with such engine; and
    (2) The Administrator finds that such a waiver is in the public 
interest.
    (e) If a manufacturer includes in an advertisement a statement 
respecting the cost or value of emission control devices or systems, the 
manufacturer shall set forth in the statement the cost or value 
attributed to these devices or systems by the Secretary of Labor 
(through the Bureau of Labor Statistics). The Secretary of Labor, and 
his or her representatives, has the same access for this purpose to the 
books, documents, papers, and records of a manufacturer as the 
Comptroller General has to those of a recipient of

[[Page 299]]

assistance for purposes 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 otherwise noted.



Sec. 90.1201  Applicability.

    The provisions of this subpart from Sec. 90.1201 through Sec. 
90.1249 are applicable to all handheld and nonhandheld Phase 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 this subpart.



Sec. 90.1203  Voluntary Manufacturer In-Use Testing Program.

    (a) Manufacturers may elect to participate in the voluntary in-use 
testing program by notifying the Administrator in writing of their 
intent to conduct emissions testing on in-use engines prior to the 
beginning of each model year. The notification must include a list of 
engine families the manufacturer has selected to include in the testing 
program.
    (b) Each engine family included in the voluntary in-use testing 
program is exempted from the Production Line Testing requirements 
according to Sec. 90.701(c) for two model years, the current model year 
and the subsequent model year. Manufacturers may only include up to 
twenty percent of their eligible engine families in this in-use testing 
program each model year.
    (c) The manufacturer must randomly select or procure a minimum of 
three engines, from each family included in the voluntary program, for 
emissions testing. These three engines may be selected or procured from:
    (1) Existing consumer or independently owned fleets,
    (2) Existing manufacturer owned fleets, or
    (3) The production line and placed into either manufacturer or 
consumer owned fleets. Although a minimum of three engines must be 
emissions tested from each engine family in this testing program, a 
manufacturer may elect to emissions test more than three engines per 
family.
    (d) The manufacturer or the manufacturer's designee must:
    (1) Age the selected engines in equipment representing the top 50 
percent, by production, of available equipment for the engine family.
    (2) Age the selected engines to at least 75 percent of each engines' 
useful life as determined pursuant to Sec. 90.105.
    (3) Age the engine/equipment combination in actual field conditions 
encountered with typical use of the equipment as described in the 
owner's manual or other literature sold with the equipment or engine.
    (e) Documents obtained in the procurement or aging process must be 
maintained as required in Sec. 90.121.
    (f) The manufacturer must complete testing within three calendar 
years from the time they notified the Administrator of their intent to 
participate in the voluntary in-use testing program, unless otherwise 
approved by the Administrator; the Administrator will give such approval 
upon acceptance of documentation demonstrating that appropriate 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 appropriate stabilization, 
manufacturers may optionally conduct emissions testing on the engines, 
according to the test procedures described in subpart E of this part. 
These tests to serve as baseline references.
    (b) Manufacturers must obtain information regarding the accumulated 
usage, maintenance, operating conditions, and storage of the test 
engines.
    (1) The manufacturer may take reasonable measures to assure that the 
engines and equipment were properly used and maintained during the field 
aging process, but additional maintenance to that indicated in the 
owners manual or other literature sold with the equipment or engine is 
prohibited.

[[Page 300]]

    (2) Unless otherwise approved by the Administrator, once a 
manufacturer begins aging and/or testing an engine, the manufacturer may 
not remove that engine from the selected sample unless that engine 
experiences catastrophic mechanical failure or safety concerns requiring 
major engine repair.
    (c) The manufacturer may perform minimal set-to-spec maintenance on 
components of a test engine that are not subject to parameter 
adjustment. Components subject to parameter adjustment must be sealed 
and tamperproof and may not be adjusted for testing. Unless otherwise 
approved by the Administrator, maintenance to any test engine may 
include only that which is listed in the owner's instructions for 
engines with the amount of service and age of the test engine.
    (d) After aging each engine to at least 75 percent of the engine's 
useful life as determined pursuant to Sec. 90.105, at least one valid 
emission test, according to the test procedure outlined in subpart E of 
this part, is required for each test engine. Data from other emission 
testing or performance testing performed on a test engine must be 
supplied to EPA, and may not be used for the purpose of determining the 
need for maintenance on an engine.
    (e) Documents obtained in the procurement, aging, maintenance, or 
testing process must be maintained as required in Sec. 90.121.



Sec. 90.1205  In-use test program reporting requirements.

    (a) The manufacturer shall submit to the Administrator within ninety 
(90) days of completion of testing for a given model year's engines, all 
emission testing results generated from the voluntary in-use testing 
program. The following information must be reported for each 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 maintenance 
and/or adjustments performed;
    (10) Schedules, descriptions and justifications of all modifications 
and/or repairs; and
    (11) A listing of any test engines that were deleted from the aging 
process or testing process and technical justifications to support the 
deletion.
    (b) All testing reports and requests for approvals made under this 
subpart shall be addressed to: Manager, Engine Compliance Programs Group 
(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 manufacturer 
is complying with the provisions under this subpart, EPA enforcement 
officers or their authorized representatives, upon presentation of 
credentials, shall be permitted entry, during operating hours, into any 
of the following places:
    (1) Any facility where engines undergo or are undergoing aging, 
maintenance, repair, preparation for aging, selection for aging or 
emission testing.
    (2) Any facility where records or documents related to any of 
activities 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) of 
this section, EPA enforcement officers or EPA authorized representatives 
are authorized to perform those activities set forth in Sec. 90.705 (b) 
and also to inspect and make copies of records related to engine aging 
(service accumulation) and maintenance.
    (c) The provisions of Sec. 90.705(c), (d), (e), (f) and (g) also 
apply to entry and access under this subpart.

[[Page 301]]



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 emission credits.
91.104 Exhaust emission standards for outboard and personal watercraft 
          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--prohibited controls.
91.111 Requirement of certification--prohibition of defeat devices.
91.112 Requirement of certification--adjustable parameters.
91.113 Requirement of certification--emission control information label 
          and engine identification number.
91.114 Requirement of certification--supplying production engines upon 
          request.
91.115 Certification procedure--determining engine power 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 test procedures.
91.120 Compliance with Family Emission Limits over useful life.
91.121 Certification procedure--recordkeeping.
91.122 Amending the application and certificate of conformity.
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 with emission 
          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 frequency table.
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 302]]

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 system description.
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 system 
          description.
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 of conformity.
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 passing and failing 
          criteria for selective enforcement audits.

Appendix A to Subpart G of Part 91--Sampling Plans for 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.

             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-use engines.
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, record retention.
91.906 Responsibility under other legal provisions preserved.
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.
91.1006 Manufacturer-owned exemption and precertification exemption.
91.1007 Display exemption.

[[Page 303]]

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.
91.1013 Exemption for certified Small SI engines.

      Subpart L_Prohibited Acts and General Enforcement Provisions

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 to ultimate 
          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 otherwise noted.

    Effective Date Note: At 61 FR 52102, Oct. 4, 1996, part 91 was 
added, effective Dec. 3, 1996. This part contains information collection 
and recordkeeping requirements that will not become effective until 
approval has been given by the Office of Management and Budget.



                            Subpart A_General



Sec. 91.1  Applicability.

    (a) This part and all its subparts apply to marine spark-ignition 
engines used to propel marine vessels as defined in the General 
Provisions of the United States Code, 1 U.S.C.3 (1992), unless otherwise 
indicated.
    (b) Sterndrive and inboard engines are exempt from this part.
    (c) Existing technology OB/PWC are exempt from Sec. 91.112 and 
subparts D, E, F, G, I (Sec. Sec. 91.803 through 91.805), J, M and N 
through model year 2003.
    (d) This part does not apply to engines that are subject to emission 
standards under 40 CFR part 1045. See 40 CFR 1045.1 to determine when 
that part 1045 applies. Note that certain requirements and prohibitions 
apply to engines built on or after January 1, 2010 if they are installed 
in equipment that will be used solely for competition, as described in 
40 CFR 1045.1 and 40 CFR 1068.1; those provisions apply instead of the 
provisions of this part 91.

[61 FR 52102, Oct. 4, 1996, as amended at 73 FR 59183, Oct. 8, 2008]



Sec. 91.2  Applicable date.

    This part applies to marine spark-ignition engines beginning with 
the 1998 model year, except where otherwise specified.



Sec. 91.3  Definitions.

    The following definitions apply to this part 91. All terms not 
defined herein have the meaning given them in the Act.
    Act means the Clean Air Act, as amended, 42 U.S.C. 7401 et seq.
    Adjustable parameter means any device, system, or element of design 
which is physically capable of being adjusted (including those which are 
difficult to access) and which, if adjusted, may affect emissions or 
engine performance during emission testing or normal in-use operation.
    Administrator means the Administrator of the Environmental 
Protection Agency or his or her authorized representative.
    Amphibious vehicle means a vehicle with wheels or tracks that is 
designed primarily for operation on land and secondarily for operation 
in water.
    Auxiliary emission control device means any element of design that 
senses temperature, engine speed, engine RPM, transmission gear, or any 
other parameter for the purpose of activating, modulating, delaying, or 
deactivating the operation of any part of the emission control system.

[[Page 304]]

    Certification means, with respect to new SI marine engines, 
obtaining a certificate of conformity for an engine family complying 
with the marine SI engine emission standards and requirements specified 
in this part.
    Emission control system means any device, system, or element of 
design which controls or reduces the emission of substances from an 
engine.
    Engine as used in this part, refers to marine SI engine.
    Engine family means a group of engines, as specified in Sec. 
91.115.
    EPA enforcement officer means any officer, employee, or authorized 
representative of the U.S. Environmental Protection Agency so designated 
in writing by the Administrator (or by his or her designee).
    Exhaust emissions means matter emitted into the atmosphere from any 
opening downstream from the exhaust port of a marine engine.
    Existing technology OB/PWC means an outboard engine or a personal 
watercraft engine which was in production for the 1997 or any previous 
model years and that did not utilize newer technologies such as four-
stroke technology, direct-injection two-stroke technology, catalyst 
technology, or other technology used to comply with emission standards 
which the Administrator determines is a new type of OB/PWC technology.
    Family Emission Limit (FEL) means an emission level that is declared 
by the manufacturer to serve in lieu of an emission standard for 
certification and for the averaging, banking, and trading program. A FEL 
must be expressed to the same number of decimal places as 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 combustion 
chamber(s) including the following: Fuel tank, fuel tank cap, fuel pump, 
fuel lines, oil injection metering system, carburetor or fuel injection 
components, and all fuel system vents.
    Gross power means the power measured at the crankshaft or its 
equivalent (for outboards, the power may be measured at the propeller 
shaft), the engine being equipped only with the standard accessories 
(such as oil pumps, coolant pumps, and so forth) necessary for its 
operation on the test bed.
    Identification number means a unique specification (for example, 
model number/serial number combination) which allows a particular marine 
SI engine to be distinguished from other similar engines.
    Inboard engine means a four stroke marine SI engine that is designed 
such that the propeller shaft penetrates the hull of the marine vessel 
while the engine and the remainder of the drive unit is internal to the 
hull of the marine vessel.
    Marine engine means a nonroad engine that is installed or intended 
to be installed on a marine vessel. This includes a portable auxiliary 
marine engine only if its fueling, cooling, or exhaust system is an 
integral part of the vessel. There are two kinds of marine engines:
    (1) Propulsion marine engine means a marine engine that moves a 
vessel through the water or directs the vessel's movement.
    (2) Auxiliary marine engine means a marine engine not used for 
propulsion.
    Marine engine manufacturer means any person engaged in the 
manufacturing or assembling of new marine SI engines or the importing of 
such engines for resale, or who acts for and is under the control of any 
such person in connection with the distribution of such engines. A 
marine SI engine manufacturer does not include any dealer with respect 
to new marine SI engines received by such person in commerce.
    Marine spark-ignition engine means a spark-ignition marine engine 
that propels a marine vessel.
    Marine vessel has the meaning given in 1 U.S.C. 3, except that it 
does not include amphibious vehicles. The definition in 1 U.S.C. 3 very 
broadly includes every craft capable of being used as a means of 
transportation on water.
    Marine vessel manufacturer means any person engaged in the 
manufacturing or assembling of new marine vessels or importing such 
marine vessels for resale, or who acts for and is under the control of 
any such person in connection with the distribution of such vehicles. A 
marine vessel manufacturer

[[Page 305]]

does not include any dealer with respect to new marine vessels received 
by such person in commerce.
    Model year means the manufacturer's annual new model production 
period which includes January 1 of the calendar year for which the model 
year is named, ends no later than December 31 of the calendar year, and 
does not begin earlier than January 2 of the previous calendar year. 
Where a manufacturer has no annual new model production 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 to which has 
never been transferred to an ultimate purchaser. Where the equitable or 
legal title to the engine, vehicle or equipment is not transferred to an 
ultimate purchaser until after the engine, vehicle, or equipment is 
placed into service, then the engine, vehicle, or equipment will no 
longer be new after it is placed into service. A nonroad engine, 
vehicle, or equipment is placed into service when it is used for its 
functional purposes. With respect to imported nonroad engines, nonroad 
vehicles, or nonroad equipment, the term ``new'' means an engine, 
vehicle, or piece of equipment that is not covered by a certificate of 
conformity issued under this part at the time of importation, and that 
is manufactured after the effective date of a regulation 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 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 which 
personnel other than custodial personnel are at work in the vicinity of 
the storage area or facility and have access to it.
    (2) For all other areas or facilities, all times during which an 
assembly line is in operation or all times during which testing, 
maintenance, service accumulation, production or compilation of records, 
or any other procedure or activity related to certification testing, to 
translation of designs from the test stage to the production stage, or 
to engine manufacture or assembly is being carried out in a facility.
    Outboard engine is a marine SI engine that, when properly mounted on 
a marine vessel in the position to operate, houses the engine and drive 
unit external to the hull of the marine vessel.
    Personal watercraft engine (PWC) is a marine SI engine that does not 
meet the definition of outboard engine, inboard engine or sterndrive 
engine, except that the Administrator in his or her discretion may 
classify a PWC as an inboard or sterndrive engine if it is comparable in 
technology and emissions to an inboard or sterndrive engine.
    Presentation of credentials means the display of the document 
designating a person as an EPA enforcement officer or EPA authorized 
representative.
    Scheduled maintenance means any adjustment, repair, removal, 
disassembly, cleaning, or replacement of components or systems required 
by the manufacturer to be performed on a periodic basis to prevent part 
failure or marine vessel or engine malfunction, or those actions 
anticipated as necessary to correct an overt indication of malfunction 
or failure for which periodic maintenance is not appropriate.
    Spark-ignition means relating to a gasoline-fueled engine or any 
other type of engine with a spark plug (or other sparking device) and 
with operating characteristics significantly similar to the theoretical 
Otto combustion cycle. Spark-ignition engines usually use a throttle to 
regulate intake air flow to control power during normal operation.
    Sterndrive engine means a four stroke marine SI engine that is 
designed such that the drive unit is external to the hull of the marine 
vessel, while the engine is internal to the hull of the marine vessel.
    Test engine means the engine or group of engines that a manufacturer 
uses during certification, production line and in-use testing to 
determine compliance with emission standards.

[[Page 306]]

    Ultimate purchaser means, with respect to any new marine SI engine 
the first person who in good faith purchases such new marine SI engine 
for purposes other than resale.
    United States means the States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, Guam, American Samoa, and the U.S. Virgin Islands.
    Used solely for competition means exhibiting features that are not 
easily removed and that would render its use other than in competition 
unsafe, impractical, or highly unlikely.
    Warranty period means the period of time the engine or part is 
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 of the 
subpart. Tables are numbered consecutively by order of appearance in the 
appendix. The table title will indicate the topic.
    (b) Figures for each subpart appear in an appendix at the end of the 
subpart. Figures are numbered consecutively by order or appearance in 
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. The incorporation by 
reference was approved by the Director of the Federal Register in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be 
inspected at U.S. EPA, OAR, Air and Radiation Docket and Information 
Center, 401 M St., SW., Washington, DC 20460, or at the National 
Archives and Records Administration (NARA). For information on the 
availability of 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 material that 
has been incorporated by reference in this part.
    (1) ASTM material. The following table sets forth material from the 
American Society for Testing and Materials which has been incorporated 
by reference. The first column lists the number and name of the 
material. The second column lists the section(s) of this part, other 
than Sec. 91.6, in which the matter is referenced. The second column is 
presented for information only and may not be all inclusive. Copies of 
these materials may be obtained from American Society for Testing and 
Materials, 1916 Race St., Philadelphia, PA 19103.

------------------------------------------------------------------------
   Document number and name             40 CFR part 91 reference
------------------------------------------------------------------------
ASTM D86-93:
    Standard Test Method for   Appendix A to Subpart D.
     Distillation of
     Petroleum Products.

[[Page 307]]

 
ASTM D323-90:
    Standard Test Method for   Appendix A to Subpart D.
     Vapor Pressure of
     Petroleum Products (Reid
     Method).
ASTM D1319-93:
    Standard Test Method for   Appendix A to Subpart D.
     Hydrocarbon Types in
     Liquid Petroleum
     Products by Fluorescent
     Indicator Adsorption.
ASTM D2622-92:
    Standard Test Method for   Appendix A to Subpart D.
     Sulfur in Petroleum
     Products by X-Ray
     Spectrometry.
ASTM D2699-92:
    Standard Test Method for   Appendix A to Subpart D.
     Knock Characteristics of
     Motor Fuels by the
     Research Method.
ASTM D2700-92:
    Standard Test Method for   Appendix A to Subpart D.
     Knock Characteristics of
     Motor and Aviation Fuels
     by the Motor Method.
ASTM D3231-89:
    Standard Test Method for   Appendix A to Subpart D.
     Phosphorus in Gasoline.
ASTM D3606-92:
    Standard Test Method for   Appendix A to Subpart D.
     Determination of Benzene
     and Toluene in Finished
     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 to
     Determine Conformance
     with Specifications.
------------------------------------------------------------------------

    (2) SAE material. The following table sets forth material from the 
Society of Automotive Engineers which has been incorporated by 
reference. The first column lists the number and name of the material. 
The second column lists the section(s) of this part, other than Sec. 
91.7, in which the matter is referenced. The second column is presented 
for information only and may not be all inclusive. Copies of these 
materials may be obtained from Society of Automotive 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
 Propulsion Engine and
 Systems-Power Measurements
 and Declarations.
SAE J1930 June 1993            91.113.
 Electrical/Electronic
 Systems Diagnostic Terms,
 Definitions, Abbreviations
 and Acronyms.
SAE Paper 770141 Optimization  91.316
 of a Flame Ionization
 Detector for Determination
 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 the information 
submitted pursuant to this part is entitled to confidential treatment as 
provided by part 2, subpart B, of this chapter.
    (b) Any claim of confidentiality must accompany the information at 
the time it is submitted to EPA.
    (c) To assert that information submitted pursuant to this subpart is 
confidential, a manufacturer must indicate clearly the items of 
information claimed confidential by marking, circling, bracketing, 
stamping, or otherwise specifying the confidential information. 
Furthermore, EPA requests, but does not require, that the submitter also 
provide a second copy of its submittal from which all confidential 
information has been deleted. If a need arises to publicly release 
nonconfidential information, EPA will assume that the submitter has 
accurately deleted the confidential information from this second copy.
    (d) If a claim is made that some or all of the information submitted 
pursuant to this subpart is entitled to confidential treatment, the 
information covered by that confidentiality claim will be disclosed by 
the Administrator only to the extent and by means of the procedures set 
forth in part 2, subpart B, of this chapter.

[[Page 308]]

    (e) Information provided without a claim of confidentiality at the 
time of submission may be made available to the public by EPA without 
further notice to the submitter, in accordance with Sec. 
2.204(c)(2)(i)(A) of this chapter.



        Subpart B_Emission Standards and Certification Provisions



Sec. 91.101  Applicability.

    (a) The requirements of this subpart B are applicable to all engines 
subject to the provisions of subpart A of this part.
    (b) In a given model year, you may ask us to approve the use of 
procedures for certification, labeling, reporting and recordkeeping, or 
other administrative requirements specified in 40 CFR part 1045 or 1068 
instead of the comparable procedures specified in this part 91. We may 
approve the request as long as it does not prevent us from ensuring that 
you fully comply with the intent of this part.

[73 FR 59183, Oct. 8, 2008]



Sec. 91.102  Definitions.

    The definitions in subpart A of this part 91 apply to this subpart. 
All terms not defined herein or in subpart A of this part have the 
meaning given them in the Act.



Sec. 91.103  Averaging, banking, and trading of exhaust emission credits.

    Regulations regarding averaging, banking, and trading provisions 
along with applicable recordkeeping requirements are found in subpart C 
of this part.



Sec. 91.104  Exhaust emission standards for outboard and personal watercraft 

engines.

    (a) New marine spark-ignition outboard and personal watercraft 
engines for use in the U.S. must meet the following exhaust emission 
standards for HC+NOX. The exhaust emission standard for each 
model year is provided below. It is also used as input to the 
calculation procedure in Sec. 91.207 to determine compliance with the 
corporate average HC+NOX exhaust emission standard.

                         Hydrocarbon Plus Oxides of Nitrogen Exhaust Emission 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 as 
determined by SAE J1228. This procedure has been incorporated by 
reference. See Sec. 91.6.

    (b) Exhaust emissions are measured using the procedures set forth in 
subpart E of this part.
    (c) Manufacturers must designate a Family Emission Limit (FEL) for 
HC+NOX for every engine family. The FEL may be equal to the 
emission standard in paragraph (a) of this section. The FEL established 
through certification serves as the emission standard for the engine 
family and emissions may not exceed the FEL levels for HC+NOX 
for all engines sold in the engine family, for their useful life.
    (d) A manufacturer must comply with a corporate average 
HC+NOX emission standard as determined in accordance with 
subpart C Sec. 91.207.

[[Page 309]]



Sec. 91.105  Useful life period, recall, and warranty periods.

    (a) The useful life for PWC engines is a period of 350 hours of 
operation or 5 years of use, whichever first occurs. The useful life for 
Outboard marine spark-ignition engines is a period of 350 hours of 
operation or 10 years of use, whichever first occurs.
    (b) PWC engines are subject to recall testing for a period of 350 
hours of operation or 5 years of use, whichever first occurs. Outboard 
marine spark-ignition engines are subject to recall testing for a period 
of 350 hours of operation or 10 years of use, whichever first occurs. 
However, for purposes of this part only, if the Administrator should 
issue a nonconformity determination, then only those engines that are 
within the useful life as of the date of the nonconformity 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 during or 
after the 1998 model year for outboard engines and the 1999 model year 
for PWC engines, must obtain a certificate of conformity covering each 
engine family. The certificate of conformity must be obtained from the 
Administrator prior to selling, offering for sale, introducing into 
commerce, or importing into the United States the new marine SI engine.
    (b) The certificate of conformity is valid for the model year for 
which it is designated.



Sec. 91.107  Application for certification.

    (a) For each engine family, the engine manufacturer must submit to 
the Administrator a completed application for a certificate of 
conformity, except that with respect to an existing technology OB/PWC 
engine a manufacturer may, in lieu of providing such application, submit 
to the Administrator summary testing and other information as determined 
by the Administrator.
    (b) The application must be approved and signed by the authorized 
representative of the manufacturer.
    (c) The application must be updated and corrected by amendment as 
provided in Sec. 91.122 to accurately reflect the manufacturer's 
production.
    (d) Required content. Each application must include the following 
information:
    (1) A description of the basic engine design including, but not 
limited to, the engine family specifications;
    (2) An explanation of how the emission control system operates, 
including a detailed description of all emission control system 
components (detailed component calibrations are not required to be 
included, however they must be provided if requested), each auxiliary 
emission control device (AECD), and all fuel system components to be 
installed on any production or test engine(s);
    (3) Proposed test fleet selection and the rationale for the test 
fleet selection;
    (4) Special or alternative test procedures, if applicable;
    (5) The description of the operating cycle and the service 
accumulation period necessary to break in the test engine(s) and 
stabilize 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 associated production 
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 to establish 
each physically adjustable range; and
    (v) Information relating to why the physical limits or stops used to 
establish the physically adjustable range of each parameter, or any 
other means used to inhibit adjustment, are effective in preventing 
adjustment of parameters to settings outside the manufacturer's intended 
physically adjustable ranges on in-use engines;
    (7) Regarding the averaging, banking, and trading provisions, the 
information specified in Sec. 91.208;
    (8) The proposed maintenance and use instructions the manufacturer 
will furnish to the ultimate purchaser of each new engine and the 
proposed emission control label;

[[Page 310]]

    (9) All test data, for HC, CO and NOX. obtained by the 
manufacturer on each test engine;
    (10) A statement that the test engine(s), as described in the 
manufacturer's application for certification, has been tested in 
accordance with the applicable test procedures, utilizing the fuels and 
equipment described in the application, and that on the basis of such 
tests the engine(s) conforms to the requirements of this part; and
    (11) An unconditional statement certifying that all engines in the 
engine family comply with all requirements of this part and the Clean 
Air Act.
    (12) Identification of an agent for service located in the United 
States. Service on this agent constitutes service on you or any of your 
officers or employees for any action by EPA or otherwise by the United 
States related to the requirements of this part.
    (e) At the Administrator's request, the manufacturer must supply 
such additional information as may be required to evaluate the 
application including, but not limited to, projected marine SI engine 
production.
    (f) (1) The Administrator may modify the information submission 
requirements of paragraph (d) of this section, provided the information 
specified therein is maintained by the engine manufacturer as required 
by Sec. 91.121, and amended, updated, or corrected as necessary.
    (2) For the purposes of this paragraph, Sec. 91.121(a)(1) includes 
all information specified in paragraph (d) of this section whether or 
not such information is actually submitted to the Administrator for any 
particular model year.
    (3) The Administrator may review an engine manufacturer's records at 
any time.

[61 FR 52102, Oct. 4, 1996, as amended at 73 FR 59183, Oct. 8, 2008]



Sec. 91.108  Certification.

    (a) If, after a review of the manufacturer's submitted application, 
or with respect to an existing technology OB/PWC engine manufacturer's 
summary information submitted pursuant to Sec. 91.107(a), information 
obtained from any inspection, and such other information as the 
Administrator may require, the Administrator determines that the 
application or summary information is complete and that the engine 
family meets the requirements of this part and the Clean Air Act, the 
Administrator shall issue a certificate of conformity for the engine 
family.
    (b) The Administrator shall give a written explanation when 
certification is denied. The manufacturer may request a hearing on a 
denial. (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 the housing 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 with emission 
standards if such device, system, or element of design will 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 an 
unreasonable risk to public health, welfare, or safety while operating. 
For example, this would apply if the engine emits a noxious or toxic 
substance it would otherwise not emit that contributes to such an 
unreasonable risk.

[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 any device, 
system, or element of design which senses operation outside normal 
emission test conditions and reduces emission control effectiveness.
    (1) Defeat device includes any auxiliary emission control device 
(AECD) that reduces the effectiveness of the

[[Page 311]]

emission control system under conditions which may reasonably be 
expected to be encountered in normal operation and use, unless such 
conditions are included in the test procedure.
    (2) Defeat device does not include such items which either operate 
only during engine starting or are necessary to protect the engine (or 
vehicle or equipment in which it is installed) against damage or 
accident during its operation.



Sec. 91.112  Requirement of certification--adjustable parameters.

    (a) Engines equipped with adjustable parameters must comply with all 
requirements of this subpart for any adjustment in the physically 
available range.
    (b) An operating parameter is not considered adjustable if it is 
permanently sealed by the manufacturer or otherwise not normally 
accessible using ordinary tools.
    (c) The Administrator may require that adjustable parameters be set 
to any specification within the adjustable range during certification, 
production line testing, selective enforcement auditing or any in-use 
testing to determine compliance with the requirements of this part.



Sec. 91.113  Requirement of certification--emission control information label 

and engine identification number.

    (a) The engine manufacturer must affix at the time of manufacture a 
permanent and legible label identifying each engine. The label must meet 
the following requirements:
    (1) Be attached in such a manner that it cannot be removed without 
destroying or defacing the label;
    (2) Be durable and readable for the entire engine life;
    (3) Be secured to an engine part necessary for normal engine 
operation 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 person 
after the engine is installed in the marine vessel.
    (b) If the marine vessel obscures the label on the engine, the 
marine vessel manufacturer must attach a supplemental label so that this 
label is readily visible to the average person. The supplemental label 
must:
    (1) Be attached in such a manner that it cannot be removed without 
destroying or defacing the label;
    (2) Be secured to a marine vessel part necessary for normal 
operation and not normally requiring replacement during the marine 
vessel 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 engine 
manufacturer;
    (3) The statement, ``This (vessel's engine or engine, as applicable) 
is certified to operate on (specify operating fuel(s));''
    (4) Identification of the Exhaust Emission Control System 
(Abbreviations may be used and must conform to the nomenclature and 
abbreviations provided in SAE J1930. This procedure has been 
incorporated 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 should 
indicate the proper transmission position during tuneup, and 
accessories, if any, that should be in operation;
    (13) Fuel requirements;
    (14) Other information concerning proper maintenance and use or 
indicating compliance or noncompliance with other standards may be 
indicated on the label.
    (d) If there is insufficient space on the engine to accommodate a 
label including all the information required in paragraph (c) of this 
section, the manufacturer may delete or alter the label as indicated in 
this paragraph. The information deleted from the label must appear in 
the owner's manual.

[[Page 312]]

    (1) Exclude the information required in paragraphs (c) (3), (4), and 
(5) of this section. The fuel or lubricant may be specified elsewhere on 
the equipment.
    (2) Exclude the information required by paragraph (c)(6) of this 
section, if the date the engine was manufactured is stamped on the 
engine.
    (3) For existing technology OB/PWC only, exclude the information 
required by paragraphs (c) (10), (11), (13), and (14) of this section.
    (e) The Administrator may, upon request, waive or modify the label 
content 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, 
unique engine identification number permanently affixed to or engraved 
on the engine.



Sec. 91.114  Requirement of certification--supplying production engines upon 

request.

    Upon the Administrator's request, the manufacturer must supply a 
reasonable number of production engines for testing and evaluation. 
These engines must be representative of typical production and supplied 
for testing at such time and place and for such reasonable periods as 
the Administrator may require.



Sec. 91.115  Certification procedure--determining engine power and engine 

families.

    (a) Engine power must be calculated using SAE J1228. This procedure 
has been incorporated by reference. See Sec. 91.6.
    (b) The manufacturer's product line must be divided into engine 
families as specified by paragraph (c) of this section, comprised of 
engines expected to have similar emission characteristics throughout 
their useful life periods.
    (c) To be classed in the same engine family, engines must be 
identical in all of the following applicable respects:
    (1) The combustion cycle;
    (2) The cooling mechanism;
    (3) The cylinder configuration (inline, vee, opposed, bore spacings, 
and so forth);
    (4) The number of cylinders;
    (5) The number of catalytic converters, location; volume, and 
composition; and
    (6) The thermal reactor characteristics.
    (d) At the manufacturer's request, engines identical in all the 
respects listed in paragraph (c) of this section may be further divided 
into different engine families if the Administrator determines that they 
may be expected to have different emission characteristics. This 
determination is based upon the consideration of features such as:
    (1) The bore and stroke;
    (2) The combustion chamber configuration;
    (3) The intake and exhaust timing method of actuation (poppet valve, 
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 into engine 
families based upon the criteria listed in paragraph (c) of this 
section, the Administrator shall establish families for those engines 
based upon the features most related to their emission characteristics.
    (f) Upon a showing by the manufacturer that the emission 
characteristics 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 emission 
characteristics during the useful life are expected to be dissimilar, 
engines identical in all the characteristics in paragraph (c) of this 
section 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 test 
engine of a configuration that the manufacturer deems to be most likely 
to exceed the Family Emission Limit (FEL).
    (b) At the manufacturer's option, the criterion for selecting the 
worst case engine may be that engine configuration which has the highest 
weighted

[[Page 313]]

brake-specific fuel consumption over the appropriate engine test cycle.
    (c) The test engine must be constructed to be representative of 
production engines.



Sec. 91.117  Certification procedure--service accumulation.

    (a)(1) Any engine required to be tested under Sec. 91.118 must be 
operated with all emission control systems operating properly for a 
period sufficient to stabilize emissions prior to such testing.
    (2) A manufacturer may elect to consider emission levels as 
stabilized when the test engine has accumulated 12 hours of service.
    (b) No maintenance, other than recommended lubrication and filter 
changes, may be performed during service accumulation without the 
Administrator's approval.
    (c) Service accumulation is to be performed in a manner using good 
engineering judgment to ensure that emissions are representative of 
production engines.
    (d) The manufacturer must maintain, and provide to the Administrator 
if requested, records stating the rationale for selecting a service 
accumulation period different than 12 hours and records describing the 
method used to accumulate hours on the test engine(s).



Sec. 91.118  Certification procedure--testing.

    (a) Manufacturer testing. The manufacturer must test the test engine 
using the specified test procedures and appropriate test cycle. All test 
results must be reported to the Administrator.
    (1) The test procedures to be used are detailed in subpart E of this 
part.
    (2) Emission test equipment provisions are described in subpart D of 
this part.
    (b) Administrator testing. (1) The Administrator may require that 
any one or more of the test engines be submitted to the Administrator, 
at such place or places as the Administrator may designate, for the 
purposes of conducting emission tests. The Administrator may specify 
that testing will be conducted at the manufacturer's facility, in which 
case instrumentation and equipment specified by the Administrator must 
be made available by the manufacturer for test operations. Any testing 
conducted at a manufacturer's facility must be scheduled by the 
manufacturer as promptly as possible.
    (2)(i) Whenever the Administrator conducts a test on a test engine, 
the results of that test will, unless subsequently invalidated by the 
Administrator, comprise the official data for the engine and the 
manufacturer's data will not be used in determining compliance with the 
Family Emission Limit (FEL).
    (ii) Prior to the performance of such a test, the Administrator may 
adjust or cause to be adjusted any adjustable parameter of the test 
engine which the Administrator has determined to be subject to 
adjustment for testing, to any setting within the physically adjustable 
range of that parameter, to determine whether the engine conforms to the 
applicable Family Emission Limit (FEL).
    (iii) For those engine parameters which the Administrator has not 
determined to be subject to adjustment for testing, the test engine 
presented to the Administrator for testing will be calibrated within the 
production tolerances applicable to the manufacturer specification shown 
on the engine label, as specified in the application for certification.
    (c) Use of carryover test data. In lieu of testing, the manufacturer 
may submit, with the Administrator's approval, emission test data used 
to certify substantially similar engine families in previous years. This 
``carryover'' test data is only allowable if the data shows the test 
engine would fully comply with the applicable Family Emission Limit 
(FEL).
    (d) Scheduled maintenance during testing. No scheduled maintenance 
may be performed during testing of the engine.
    (e) Unscheduled maintenance on test engines. (1) Manufacturers may 
not perform any unscheduled engine, emission control system, or fuel 
system adjustment, repair, removal, disassembly, cleaning, or 
replacement on a test engine without the advance approval of the 
Administrator.
    (2) The Administrator may approve such maintenance if:

[[Page 314]]

    (i) A preliminary determination has been made that a part failure or 
system malfunction, or the repair of such failure or malfunction, does 
not render the engine unrepresentative of engines in use, and does not 
require direct access to the combustion chamber; and
    (ii) A determination has been made that the need for maintenance or 
repairs is indicated by an overt malfunction such as persistent misfire, 
engine stall, overheating, fluid leakage, or loss of oil pressure.
    (3) Emission measurements may not be used as a means of determining 
the need for unscheduled maintenance under paragraph (e)(2) of this 
section.
    (4) The Administrator must have the opportunity to verify the extent 
of any overt indication of part failure (for example, misfire, stall), 
or an activation of an audible and/or visual signal, prior to the 
manufacturer performing any maintenance related to such overt indication 
or signal.
    (5) Unless approved by the Administrator prior to use, engine 
manufacturers may not use any equipment, instruments, or tools to 
identify malfunctioning, maladjusted, or defective engine components 
unless the same or equivalent equipment, instruments, or tools are 
available at dealerships and other service outlets and are used in 
conjunction with scheduled maintenance on such components.
    (6) If the Administrator determines that part failure or system 
malfunction occurrence and/or repair rendered the engine 
unrepresentative of production engines, the engine may not be used as a 
test engine.
    (7) Unless waived by the Administrator, complete emission tests are 
required before and after any engine maintenance which may reasonably be 
expected to affect emissions.
    (f) Engine failure. A manufacturer may not use as a test engine any 
engine which incurs major mechanical failure necessitating disassembly 
of the engine. This prohibition does not apply to failures which occur 
after completion of the service accumulation period.
    (g) In lieu of providing or generating emission data under this 
section for existing technology, the Administrator may allow the 
manufacturer to demonstrate (on the basis of previous emission tests, 
development tests, or other testing information) that the engine will 
conform with the applicable FEL.
    (h)(1) Manufacturers may select an FEL for existing technology OB/
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). The power of 
each configuration is the rated output in kilowatts as determined by SAE 
J1228. (This procedure has been incorporated by reference. See Sec. 
91.6). The certificate of conformity would be conditioned by 
requirements that the manufacturer submit test data, as determined 
appropriate by the Administrator under Sec. 91.118(h) by the end of 
model year 2000; that the FEL is revised and approved by EPA to reflect 
the test data; that the credits associated with the engine family are 
recalculated based on the difference between the old FEL and the new 
FEL; and that the new FEL 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 the 
discretion to extend the time period set forth in paragraph (h)(1) of 
this section for a specific engine family up to model year 2005 if the 
Administrator determines that an engine family will be phased out of 
U.S. production by model year 2005. As a condition to being granted such 
an extension, the manufacturer must discontinue U.S. production 
according to the schedule upon which the Administrator based the 
extension. Failure to do so by the manufacturer will void the 
certificate of conformity ab initio.
    (i) A manufacturer request under paragraph (h)(2) of this section 
must be in writing and must apply to a specific engine family. The 
request must identify the engine family designation, the rationale 
supporting the FEL choice, the type of information used as a basis for 
the FEL (e.g., previous emission tests, development tests), the specific 
source of the information including when the information was generated, 
the schedule for phasing the engine family out of U.S. production, and 
any

[[Page 315]]

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 Administrator may 
establish special test procedures for any engine that the Administrator 
determines is not susceptible to satisfactory testing under the 
specified test procedures set forth in subpart E of this part.
    (b) Use of alternative test procedures by an engine manufacturer. 
(1) A manufacturer may elect to use an alternative test procedure 
provided that it yields results equivalent to the results from the 
specified test procedure in subpart E, its use is approved in advance by 
the Administrator, and the basis for equivalent results with the 
specified test procedures is fully described in the manufacturer's 
application.
    (2) An engine manufacturer electing to use alternate test procedures 
is solely responsible for the results obtained. The Administrator may 
reject data generated under test procedures which do not correlate with 
data generated under the specified procedures.
    (3) A manufacturer may elect to use the test procedures in 40 CFR 
part 1065 as an alternate test procedure without getting advance 
approval by the Administrator or meeting the other conditions of 
paragraph (b)(1) of this section. The manufacturer must identify in its 
application for certification that the engines were tested using the 
procedures in 40 CFR part 1065. For any EPA testing with engines subject 
to standards under this part, EPA will use the manufacturer's selected 
procedures for mapping engines, generating duty cycles, and applying 
cycle-validation criteria. For any other parameters, EPA may conduct 
testing using either of the specified procedures.
    (4) Where we specify mandatory compliance with the procedures of 40 
CFR part 1065, manufacturers may elect to use the procedures specified 
in 40 CFR part 86, subpart N, as an alternate test procedure without 
advance approval by the Administrator.

[61 FR 52102, Oct. 4, 1996, as amended at 70 FR 40451, July 13, 2005; 73 
FR 59183, Oct. 8, 2008]



Sec. 91.120  Compliance with Family Emission Limits over useful life.

    (a) If all test engines representing an engine family have 
emissions, as determined in paragraph (c)(3)(iii) of this section, less 
than or equal to the applicable Family Emission Limit (FEL) for each 
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 than 
the applicable Family Emission Limit for any pollutant as determined 
according to Sec. 91.104(c), that family will be deemed not in 
compliance with the Family Emission Limits.
    (c)(1) The engine Family Emission Limits (FELs) apply to the 
emissions of engines for their useful lives.
    (2) Since emission control efficiency generally decreases with the 
accumulation of service on the engine, deterioration factors must be 
used in combination with emission data engine test results as the basis 
for determining compliance with the standards.
    (3)(i) Paragraph (c)(3)(ii) of this section describes the procedure 
for determining compliance of an engine with family emission limits, 
based on deterioration factors supplied by the manufacturer.
    (ii) Separate exhaust emission deterioration factors, determined by 
the manufacturer, must be supplied for each engine family. The 
deterioration factors must be applied as follows:
    (A) For marine spark-ignition engines not utilizing aftertreatment 
technology (for example, catalytic converters), the official exhaust 
emission results for each emission data engine at the selected test 
point are adjusted by adding the appropriate deterioration factor to the 
results. However, if the deterioration factor supplied by the 
manufacturer is less than zero, it is zero for the purposes of this 
paragraph.
    (B) For marine spark-ignition engines utilizing aftertreatment 
technology (for example, catalytic converters), the official exhaust 
emission results for each emission data engine at the selected test 
point are adjusted

[[Page 316]]

by multiplying the results by the appropriate deterioration factor. 
However, if the deterioration factor supplied by the manufacturer is 
less than one, it is one for the purposes of this paragraph.
    (iii) The emission values to compare with the Family Emission Limits 
(FELs) are the adjusted emission values of paragraph (c)(3)(ii) of this 
section, rounded to the same number of significant figures as contained 
in the applicable standard in accordance with ASTM E 29-93a, for each 
emission data engine. This procedure has been incorporated by reference. 
See Sec. 91.6.



Sec. 91.121  Certification procedure--recordkeeping.

    (a) The engine manufacturer must maintain the following adequately 
organized records:
    (1) Copies of all applications and summary information, as 
applicable, filed with the Administrator;
    (2) A copy of all data obtained through the production line and in-
use testing programs; and
    (3) A detailed history of each test engine used for certification 
including the following:
    (i) A description of the test engine's construction, including a 
general description of the origin and buildup of the engine, steps taken 
to insure that it is representative of production engines, description 
of components specially built for the test engine, and the origin and 
description of all emission-related components;
    (ii) A description of the method used for engine 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), and 
reason(s) for such maintenance;
    (iv) A description of all emission tests performed, including 
routine and standard test documentation, as specified in subpart E of 
this part, date(s), and the purpose of each test;
    (v) A description of all tests performed to diagnose engine or 
emission control performance, giving the date and time of each and the 
reason(s) for the test; and
    (vi) A description of any significant event(s) affecting the engine 
during the period covered by the history of the test engine but not 
described by an entry under one of the previous paragraphs of this 
section.
    (b) Routine emission test data, such as test cell temperature and 
relative humidity at start and finish of test and raw emission results 
from each mode or test phase, must be retained for a period of one year 
after issuance of all certificates of conformity to which they relate. 
All other information specified in paragraph (a) of this section must be 
retained for a period of eight years after issuance of all certificates 
of conformity to which they relate.
    (c) Records may be kept in any format and on any media, provided 
that, at the Administrator's request, organized, written records in 
English are promptly supplied by the manufacturer.
    (d) The manufacturer must supply, at the Administrator's request, 
copies of any engine maintenance instructions or explanations issued by 
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 of 
conformity or changes are to be made to a product line covered by a 
certificate of conformity which may potentially affect emissions, 
emissions durability, an emission related part, or the durability of an 
emission related part. Notification occurs when the manufacturer submits 
and EPA receives a request to amend the original application prior to 
either producing such engines or making such changes to a product line. 
For existing technology OB/PWC engines only, notification may occur 
periodically but must occur at least on a quarterly basis and may be 
submitted summarily as determined by the Administrator.
    (2) When an FEL is changed for an engine family, as allowed under 
Sec. 91.203. Notification occurs when the manufacturer submits and EPA 
receives a request to amend the original application. The manufacturer 
may not

[[Page 317]]

change an FEL unless compliance under Sec. 91.207(b) is maintained 
through the use of the revised FEL.
    (b) The request to amend the engine manufacturer's existing 
certificate 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 test engine 
or FEL is or is not still appropriate.
    (c) The Administrator may require the engine manufacturer to perform 
tests on an engine representing the engine to be added or changed.
    (d) Decision by Administrator.
    (1) Based on the submitted request and data derived from such 
testing as the Administrator may require or conduct, the Administrator 
must determine whether the proposed addition or change would still be 
covered by the certificate of conformity then in effect.
    (2) If the Administrator determines that the new or changed 
engine(s) meets the requirements of this subpart and the Act, the 
appropriate certificate of conformity will be amended.
    (3) If the Administrator determines that the new or changed engines 
would not be covered by the certificate of conformity, the Administrator 
must provide a written explanation to the engine manufacturer of his or 
her decision not to amend the certificate. The manufacturer may request 
a hearing on a denial. See Sec. 91.125.
    (4) If the Administrator determines that the revised FEL meets the 
requirements of this subpart and the Act, the appropriate certificate of 
conformity will be amended to reflect the revised FEL. The certificate 
of conformity is revised conditional upon compliance under Sec. 
91.207(b).
    (e)(1) Alternatively, an engine manufacturer may make changes in or 
additions to production engines concurrently with requesting to amend 
the application or certification of conformity as set forth in paragraph 
(b) of this section, if the manufacturer determines that all affected 
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 its determination.
    (2) If, after a review, the Administrator determines additional 
testing is required, the engine manufacturer must provide required test 
data within 30 days or cease production of the affected engines.
    (3) If the Administrator determines that the affected engines do not 
meet applicable requirements, the Administrator will notify the engine 
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, the Administrator 
determines that the test engine or engine family does not meet 
applicable requirements or the Family Emission Limit (FEL), the 
Administrator will notify the manufacturer in writing, setting forth the 
basis for this determination.
    (b) Notwithstanding the fact that engines described in the 
application may comply with all other requirements of this subpart, the 
Administrator may deny the issuance of or revoke a previously issued 
certificate of conformity if the Administrator finds any one of the 
following infractions to be substantial:
    (1) The engine manufacturer submits false or incomplete information;
    (2) The engine manufacturer denies an EPA enforcement officer or EPA 
authorized representative the opportunity to conduct authorized 
inspections;
    (3) The engine manufacturer fails to supply requested information or 
amend its application to include all engines being produced;
    (4) The engine manufacturer renders inaccurate any test data which 
it submits or otherwise circumvents the intent of the Act or this part;
    (5) The engine manufacturer denies an EPA enforcement officer or EPA 
authorized representative reasonable assistance (as defined in Sec. 
91.505); or

[[Page 318]]

    (6) The engine manufacturer fails to initiate, perform or submit 
required data generated from the production line and in-use testing 
programs to EPA.
    (c) If any manufacturer knowingly commits an infraction specified in 
paragraph (b)(1), (b)(4), or (b)(6) of this section or knowingly commits 
any other fraudulent act which results in the issuance of a certificate 
of conformity, or fails to comply with the conditions specified in 
Sec. Sec. 91.203(f), 91.206(d), 91.208(c) or 91.209(g), the 
Administrator may void such certificate ab initio.
    (d) When the Administrator denies, revokes, or voids ab initio a 
certificate of conformity, the engine manufacturer will be provided a 
written determination. The manufacturer may request a hearing on the 
Administrator's decision.
    (e) Any revocation of a certificate of conformity extends no further 
than to forbid the introduction into commerce of those engines 
previously covered by the certificate which are still in the possession 
of the engine manufacturer, except in cases of such fraud or other 
misconduct that makes the certificate void ab initio.



Sec. 91.124  Request for hearing.

    (a) An engine manufacturer may request a hearing on the 
Administrator's denial or revocation or voiding ab initio of a 
certificate of conformity.
    (b) The engine manufacturer's request must be filed within 30 days 
of the Administrator's decision, be in writing, and set forth the 
manufacturer's objections to the Administrator's decision and data to 
support the objections.
    (c) If, after review of the request and supporting data, the 
Administrator finds that the request raises a substantial and factual 
issue, the Administrator will grant the engine manufacturer's request 
for 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 new 
engine or engine family subject to certification testing under this 
subpart must admit or cause to be admitted to any applicable facilities 
during operating hours any EPA enforcement officer or EPA authorized 
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 marine 
spark-ignition engines subject to the provisions of subpart A of this 
part 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 of emission 
credits among engine families within a given manufacturer's product 
line.
    Banking means the retention of marine SI engine emission credits by 
the manufacturer generating the emission credits for use in future model 
year averaging or trading as permitted by these regulations.
    Eligible sales means marine SI engines sold for purposes of being 
used in the United States and include any engine introduced into 
commerce in the U.S. to be sold for use in the U.S.
    Emission credits represent the amount of emission reduction or 
exceedance, by a marine SI engine family, below or above the applicable 
emission standard, respectively. Emission reductions below the standard 
are considered as ``positive credits,'' while emission exceedances above 
the standard are considered as ``negative credits.'' In addition, 
``projected credits'' refer to emission credits based on the projected 
applicable production/sales volume of the engine family. ``Reserved 
credits'' are emission credits generated within a model year waiting to 
be reported to EPA at the end of the model year. ``Actual credits'' 
refer to emission

[[Page 319]]

credits based on actual applicable production/sales volume as contained 
in the end-of-year reports submitted to EPA. Some or all of these 
credits may be revoked if EPA review of the end-of-year reports or any 
subsequent audit action(s) uncovers problems or errors.
    Point of first retail sale means the point at which the engine is 
first sold directly to an end user. Generally, this point is the retail 
boat or engine dealer. If the engine is sold first to a boat or vessel 
manufacturer for installation in a boat or vessel, the boat or vessel 
manufacturer may be the point of first retail sale if the boat or vessel 
manufacturer can determine if the engine is or is not exported once they 
have sold the boat or vessel. If the boat or vessel manufacturer cannot 
determine if the engine is or is not exported once they have sold the 
boat or vessel, the engine is presumed to not be exported, unless the 
engine manufacturer can demonstrate otherwise. Engine manufacturers must 
include engines in their average if the engine is exported and 
subsequently imported into the United States installed in a boat or 
vessel and introduced into United States commerce.
    Trading means the exchange of marine engine emission credits between 
manufacturers.



Sec. 91.203  General provisions.

    (a) The certification averaging, banking, and trading provisions for 
hydrocarbon plus oxides of nitrogen emissions from eligible marine SI 
engines are described in this subpart.
    (b) A marine SI engine family must use the averaging provisions and 
may use the banking and trading provisions for hydrocarbon plus oxides 
of nitrogen emissions if it is subject to regulation under subpart 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 and 
trading provisions for new marine SI engines:
    (1) Which are exported, or
    (2) Which are subject to state engine emission standards unless the 
manufacturer demonstrates to the Administrator that inclusion of these 
engines in banking and trading is appropriate.
    (d) A manufacturer may certify marine SI engine families at Family 
Emission Limits (FELs) above or below the applicable emission standard, 
provided the summation of the manufacturer's projected balance of all 
credit transactions in a given model year is greater than or equal to 
zero, as determined under Sec. 91.207.
    (1) A manufacturer of an engine family with an FEL exceeding the 
applicable emission standard must obtain positive emission credits 
sufficient to address the associated credit shortfall via averaging, 
banking, or trading.
    (2) An engine family with an FEL below the applicable emission 
standard may generate positive emission credits for averaging, banking, 
or trading, or a combination thereof. Emission credits may not be used 
to offset an engine family's emissions that exceed its applicable FEL. 
Credits may not be used to remedy nonconformity determined by a 
production line testing, a Selective Enforcement Audit (SEA) or by 
recall (in-use) testing. However, in the case of a manufacturer 
production line testing or SEA failure, credits may be used to allow 
subsequent production of engines for the family in question if the 
manufacturer elects to recertify to a higher FEL. In the case of 
production line testing a manufacturer may revise the FEL based upon 
production line testing results obtained under subpart F and upon 
Administrator approval pursuant to Sec. 91.122(d).
    (e) Credits generated in a given model year may be used in the 
following three model years. Credits not used by the end of the third 
model year after being generated are forfeited. Credits generated in one 
model year may not be used for prior model years, unless allowed under 
Sec. 91.207.
    (f) Manufacturers must demonstrate compliance under the averaging, 
banking, and trading provisions for a particular model year by 270 days 
after the model year. An engine family generating negative credits for 
which the manufacturer does not obtain or generate an adequate number of 
positive credits from the same or previous model years will violate the 
conditions of the certificate of conformity. The

[[Page 320]]

certificate of conformity may be voided ab initio pursuant to Sec. 
91.123 for this engine family.



Sec. 91.204  Averaging.

    (a) Negative credits from engine families with FELs above the 
applicable emission standard must be offset by positive credits from 
engine families below the applicable emission standard, as allowed under 
the provisions of this subpart. Averaging of credits in this manner is 
used to determine compliance under Sec. 91.207(b).
    (b) For model years through 2000, outboard credits may not be summed 
with personal watercraft credits, or vice versa, for purposes of 
compliance under Sec. 91.207, except manufacturers may, at their 
discretion, include personal watercraft credits with outboard credits 
upon demonstration to the satisfaction of the Administrator that the 
personal watercraft engine is installed in a hybrid vessel that is 
smaller than a typical sterndrive or inboard vessel and larger than a 
typical personal watercraft. For model year 2001 and later, 
manufacturers must sum credits generated from outboard and personal 
watercraft to determine compliance under Sec. 91.207.
    (c) Credits used in averaging may be obtained from credits generated 
by another engine family as allowed under Sec. 91.204(b), in the same 
model year, credits banked in the three previous model years, or credits 
obtained through trading.



Sec. 91.205  Banking.

    (a) A manufacturer of a marine SI engine family with an FEL below 
the applicable emission standard for a given model year may bank credits 
in that model year for use in averaging and trading in the following 
three model years. Negative credits must be banked according to the 
requirements under Sec. 91.207(c). Positive credits not used within the 
three model years after they are banked are forfeited.
    (1) Early banking. (i) For outboard engines in model year (MY) 1997, 
a manufacturer may bank positive emission credits if the following 
conditions are met: the manufacturer certifies their entire marine 
outboard engine product line for MY 1997 under the emission standards 
applicable to MY 1998, the manufacturer demonstrates compliance with the 
corporate average standard under Sec. 91.207(b), and the sum of 
positive and negative credits under Sec. 91.207 generates positive 
emission credits, when the following formula is used for purposes of the 
applicable standard in Sec. 91.207(a). The number of credits that may 
be banked under this paragraph is the number of positive emission 
credits generated under the provisions of the preceding sentence. Marine 
engines certified under the provisions of this paragraph are subject to 
all of the requirements of this part.

     Hydrocarbon Plus Oxides of Nitrogen Exhaust Emission 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, a 
manufacturer may bank positive emission credits if the following 
conditions are met: The manufacturer certifies their entire marine 
personal watercraft engine product line for MY 1998 under the emission 
standards applicable to 1998 model year outboard engine emission 
standards, the manufacturer demonstrates compliance with the corporate 
average standard under Sec. 91.207(b), and the sum of positive and 
negative credits under Sec. 91.207 generates positive emission credits, 
when the following formula is used for purposes of the applicable 
standard Sec. 91.207(a). The number of credits that may be banked under 
this paragraph is the number of positive emission credits generated 
under the provisions of the preceding sentence. Marine engines certified 
under the provisions of this paragraph are subject to all of the 
requirements of this part.

[[Page 321]]



     Hydrocarbon Plus Oxides of Nitrogen Exhaust Emission 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 manufacturer may 
bank positive emission credits if the following conditions are met: the 
manufacturer certifies their entire marine personal watercraft engine 
product line for MY 1997 under the emission standards specified in the 
formula below for PWC, the manufacturer demonstrates compliance with the 
corporate average standard under Sec. 91.207(b), and the sum of 
positive and negative credits under Sec. 91.207 generates positive 
emission credits, when the following formula is used for purposes of the 
applicable standard in Sec. 91.207(a). The number of credits that may 
be banked under this paragraph is the number of positive emission 
credits generated under the provisions of the preceding sentence. Marine 
engines certified under the provisions of this paragraph are subject to 
all of the requirements of this part.

     Hydrocarbon Plus Oxides of Nitrogen Exhaust Emission 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 of the 
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 certification process for 
banking will be considered reserved and may be redesignated for trading 
or averaging in the end-of-year report and final report.
    (c) Credits declared for banking from the previous model year that 
have not been reviewed by EPA may be used in averaging or trading 
transactions. However, such credits may be revoked at a later time 
following EPA review of the end-of-year report or any subsequent audit 
actions.



Sec. 91.206  Trading.

    (a) A marine SI engine manufacturer may exchange emission credits 
with other marine SI engine manufacturers in trading. These credits must 
be used in the same averaging set as generated.
    (b) Credits for trading can be obtained from credits banked in the 
three previous model years or credits generated during the model year of 
the trading transaction. Traded credits expire if they are not used in 
averaging within three model years following the model year in which 
they were generated.
    (c) Traded credits can be used for averaging, banking, or further 
trading transactions.
    (d) In the event of a negative credit balance resulting from a 
transaction, both the buyer and the seller are liable, except in cases 
involving fraud. Certificates of all engine families participating in a 
negative trade may be voided ab initio pursuant to Sec. 91.123.



Sec. 91.207  Credit calculation and manufacturer compliance with emission 

standards.

    (a) For each engine family, certification emission credits (positive 
or negative) are to be calculated according to the following equation 
and rounded, in accordance with ASTM E29-93a, to the nearest gram. ASTM 
E29-93a has been incorporated by reference. See Sec. 91.6. Consistent 
units are to be used throughout the equation. The following equation is 
used to determine hydrocarbon plus oxides of nitrogen credit status for 
an engine family, whether generating positive credits or negative 
credits:

[[Page 322]]

[GRAPHIC] [TIFF OMITTED] TR04OC96.004

Where:

sales = the number of eligible sales tracked to the point of first 
retail sale for the given engine family during the model year. Annual 
production projections are used to project credit availability for 
initial certification. Actual sales volume is used in determining actual 
credits for end of-year compliance determination.
t = time in model years
Power = the average power of an engine family in kW (sales weighted). 
The power of each configuration is the rated output in kilowatts as 
determined by SAE J1228. This procedure has been incorporated by 
reference. See Sec. 91.6.
max actual life = maximum actual life specific to the power rating and 
the application; max actual life = 2[mu]life
[mu]life = average actual life in years, specific to the 
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 outboard engines,
[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 emission standard in 
grams per kilowatt hour as determined in Sec. 91.104.
FEL = the family emission limit for the engine family in grams per 
kilowatt hour.

    (b) Manufacturer compliance with the corporate average emission 
standard is determined on a corporate average basis at the end of each 
model year. A manufacturer is in compliance when the sum of positive and 
negative emission credits it holds is greater than or equal to zero, 
except as allowed under paragraph (c) of this section.
    (c)(1) Outboard Engines
    (i) For model year 1998, a manufacturer is in compliance when the 
sum of positive credits and negative emission credits it holds is 
greater than or equal to zero, including
    (A) Credits generated in MY 1998 exceed 70% of the negative credits 
generated in MY 1998. The remaining negative credits (up to 30% of the 
total negative credits) must be banked.
    (ii) For model year 1999, a manufacturer is in compliance when the 
positive credits generated in MY 1999 exceed the sum of 80% of the 
negative credits generated in MY 1999 and the negative credits banked in 
1998. The remaining negative credits (up to 20% of the total negative 
credits) must be banked.
    (iii) For model year 2000, a manufacturer is in compliance when the 
sum of positive and negative emission credits it holds is greater than 
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 FELs 
resulting from requirements in Sec. 91.118(h)(1)(i). Manufacturers do 
not have to recalculate compliance for model years 1998 and 1999.
    (2) Personal watercraft engines. (i) For model year 1999, a 
manufacturer is in compliance when the positive credits generated in MY 
1999 exceed 50% of the negative credits generated in MY 1999. The 
remaining negative credits (up to 50% of the total negative credits) 
must be banked.
    (ii) For model year 2000, a manufacturer is in compliance when the 
sum of positive and negative emission credits it holds is greater than 
or equal to zero, including
    (A) The negative credits banked in 1999 and
    (B) Any adjustments to credits based on adjustments to FELs 
resulting from requirements in Sec. 91.118(h)(1)(i). Manufacturers do 
not have to recalculate compliance for model year 1999.

[[Page 323]]

    (d) When a manufacturer is not in compliance, the manufacturer will 
be in violation of these regulations and EPA may void ab initio the 
certificates of engine families for which the manufacturer has not 
obtained sufficient positive emission credits pursuant to Sec. 91.123.
    (e) Notwithstanding other provisions of this part, for model years 
beginning with model year 2000, a manufacturer having a negative credit 
balance during one period of up to four consecutive model years will not 
be considered to be in noncompliance in a model year up through and 
including model year 2009 where:
    (1) The manufacturer has a total annual production of engines 
subject to regulation under this part of 1000 or less; and
    (2) The manufacturer has not had a negative credit balance other 
than in three immediately preceding model years, except as permitted 
under paragraph (c) of this section; and
    (3) The FEL(s) of the family or families produced by the 
manufacturer are no higher than those of the corresponding family or 
families in the previous model year, except as allowed by the 
Administrator; and
    (4) The manufacturer submits a plan acceptable to the Administrator 
for coming into compliance with future model year standards including 
projected dates for the introduction or increased sales of engine 
families having FEL(s) below standard and projected dates for 
discontinuing or reducing sales of engines having FEL(s) above standard; 
and
    (5)(i) The manufacturer has set its FEL using emission testing as 
prescribed in subpart E of this part; or
    (ii) The manufacturer has set its FEL based on the equation and 
provisions of Sec. 91.118(h)(1)(i) and the manufacturer has submitted 
appropriate test data and revised its FEL(s) and recalculated its 
credits pursuant to the provisions of Sec. 91.118(h)(1); or
    (iii) The manufacturer has set its FEL using good engineering 
judgement, 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 is 
requested will not, to the best of the manufacturer's belief, cause the 
manufacturer to be in noncompliance under Sec. 91.207(b) when all 
credits are calculated for all the manufacturer's engine families.
    (2) Declare an FEL for each engine family for HC plus 
NOX. The FEL must have the same number of significant digits 
as the emission standard.
    (3) Indicate the projected number of credits generated/needed for 
this family; the projected applicable production/sales volume, by 
quarter; and the values required to calculate credits as given in Sec. 
91.207.
    (4) Submit calculations in accordance with Sec. 91.207 of projected 
emission credits (positive or negative) based on quarterly production 
projections for each family.
    (5)(i) If the engine family is projected to have negative emission 
credits, state specifically the source (manufacturer/engine family or 
reserved) of the credits necessary to offset the credit deficit 
according to quarterly projected production.
    (ii) If the engine family is projected to generate credits, state 
specifically (manufacturer/engine family or reserved) where the 
quarterly projected credits will be applied.
    (b) All certificates issued are conditional upon manufacturer 
compliance with the provisions of this subpart both during and after the 
model year of production.
    (c) Failure to comply with all provisions of this subpart will be 
considered to be a failure to satisfy the conditions upon which the 
certificate was issued, and the certificate may be deemed void ab initio 
pursuant to Sec. 91.123.
    (d) The manufacturer bears the burden of establishing to the 
satisfaction of the Administrator that the conditions upon which the 
certificate was issued were satisfied or waived.
    (e) Projected credits based on information supplied in the 
certification application may be used to obtain a certificate of 
conformity. However, any such credits may be revoked based on

[[Page 324]]

review of end-of-year reports, follow-up audits, and any other 
verification steps deemed appropriate by the Administrator.



Sec. 91.209  Maintenance of records.

    (a) The manufacturer must establish, maintain, and retain the 
following adequately organized and indexed records for each engine 
produced:
    (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 the 
following adequately organized and indexed records for each engine 
family:
    (1) EPA engine family identification code,
    (2) Family Emission Limit (FEL) or FELs where FEL changes have been 
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 FEL 
changes have been implemented during the model year.
    (c) Any manufacturer producing an engine family participating in 
trading reserved credits must maintain the following records on a 
quarterly basis for each such engine family:
    (1) The engine family,
    (2) The actual quarterly and cumulative applicable production/sales 
volume,
    (3) The values required to calculate credits as given in Sec. 
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.
    (d) The manufacturer must retain all records required to be 
maintained under this section for a period of eight years from the due 
date for the end-of-model year report. Records may be retained as hard 
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 is retained.
    (e) Nothing in this section limits the Administrator's discretion in 
requiring the manufacturer to retain additional records or submit 
information not specifically required by this section.
    (f) Pursuant to a request made by the Administrator, the 
manufacturer must submit to the Administrator the information that the 
manufacturer is required to retain.
    (g) EPA may void ab initio a certificate of conformity for an engine 
family for which the manufacturer fails to retain the records required 
in this section or to provide such information to the Administrator 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 as 
given in Sec. 91.207, and the number of credits generated/required. 
Manufacturers must also submit how and where credit surpluses were 
dispersed (or are to be banked) and/or how and through what means credit 
deficits were met. Copies of contracts related to credit trading must be 
included or supplied by the broker, if applicable. The report must 
include a calculation of credit balances to show that the credit 
summation is equal to or greater than zero.
    (b) The sales volume for end-of-year and final reports must be based 
on the location of the point of first retail sale (for example, retail 
customer or dealer) also called the final product purchase location.
    (c)(1) End-of-year reports must be submitted within 90 days of the 
end of the model year to: Manager, Engine Compliance Programs Group 
(6403-J), US Environmental Protection Agency, 1200 Pennsylvania Ave., 
NW., Washington, DC 20460.
    (2) Final reports must 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, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460.
    (d) Failure by a manufacturer to submit any end-of-year or final 
reports in

[[Page 325]]

the specified time for all engines is a violation of Sec. 91.1103(a)(2) 
and section 213(d) of the Clean Air Act for each engine.
    (e) A manufacturer generating credits for banking only who fails to 
submit end-of-year reports in the applicable specified time period (90 
days after the end of the model year) may not use the credits until such 
reports are received and reviewed by EPA. Use of projected credits 
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 corrected in the 
final report up to 270 days from the end of the model year.
    (g) If EPA or the manufacturer determines that a reporting error 
occurred on an end-of-year or final report previously submitted to EPA 
under this section, the manufacturer's credits and credit calculations 
must be recalculated. Erroneous positive credits will be void except as 
provided in paragraph (h) of this section. Erroneous negative credit 
balances may be adjusted by EPA.
    (h) If within 270 days of the end of the model year, EPA review 
determines a reporting error in the manufacturer's favor (that is, 
resulting in an increased credit balance) or if the manufacturer 
discovers 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 under Sec. Sec. 91.203(f), 
91.206(d), 91.207(d), 91.208(c), or Sec. 91.209(g) shall be made only 
after the manufacturer concerned is offered an opportunity for a hearing 
conducted in accordance with Sec. Sec. 91.512, 91.513 and 91.514 and, 
if a manufacturer requests such a hearing, will be made only after 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 to 
perform exhaust emission tests on new marine gasoline-fueled spark-
ignition propulsion engines subject to the provisions of subpart A of 
this part 91.
    (b) Exhaust gases are sampled while the test engine is operated 
using a steady state test cycle on an engine dynamometer. Exhaust gas 
sampling may be performed using either the raw gas sampling method or 
the constant volume sampling (CVS) method. The exhaust gases receive 
specific 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 test procedure.
    (c) Additional information about system design, calibration 
methodologies, and so forth, for raw gas sampling can be found in 40 CFR 
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, July 13, 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 to this 
subpart.
    (b) The symbols in Table 1 in appendix A of this subpart apply to 
this subpart.



Sec. 91.304  Test equipment overview.

    (a) All engines subject to this subpart are tested for exhaust 
emissions. Engines are operated on dynamometers meeting the 
specification given in Sec. 91.305.
    (b) The exhaust is tested for gaseous emissions using either a 
constant volume sampling (CVS) system as described in Sec. 91.414, or 
using the raw gas sampling system as described in

[[Page 326]]

Sec. 91.421. Both systems require analyzers (see paragraph (c) of this 
section) specific to the pollutant being measured.
    (c) Analyzers used are a non-dispersive infrared 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 heated 
flame ionization detector (HFID) type for hydrocarbon analysis; and a 
chemiluminescent 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 test stand and 
other instruments for measurement of engine speed and torque must meet 
the accuracy requirements shown in Table 2 in appendix A to this 
subpart. The dynamometer must be capable of performing the test cycle 
described in Sec. 91.410.
    (b) Dynamometer calibration accuracy. (1) The dynamometer test stand 
and other instruments for measurement of engine torque and speed must 
meet the calibration frequency shown in Table 2 in appendix to this 
subpart.
    (2) A minimum of three calibration weights for each range used is 
required. The weights must be equally spaced and traceable to within 0.5 
percent of National Institute of Standards and Testing (NIST) weights. 
Laboratories located in foreign countries may certify calibration 
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 a 
distance into a torque must be used in a horizontal position for 
horizontal shaft dynamometers (five degrees). For 
vertical shaft dynamometers, a pulley system may be used to convert the 
dynamometer's horizontal loading into the vertical plane.
    (2) Calculate the indicated torque (IT) for each calibration weight 
to be used by:

IT=Moment Arm (meters)xCalibration Weight (Newtons)

    (3) Attach each calibration weight specified in Sec. 91.305(b)(2) 
to the moment arm at the calibration distance determined in paragraph 
(a)(2) of this section. Record the power 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 the calculated 
torque.
    (6) If the measured torque is not within two percent of the 
calculated torque, adjust or repair the system. Repeat steps in 
paragraphs (a)(1) through (a)(6) of this section with the adjusted or 
repaired system.
    (b) Option. A master load-cell or transfer standard may be used to 
verify the torque measurement system.
    (1) The master load-cell and read out system must be calibrated with 
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 spaced torque 
values as indicated by the master load-cell for each in-use range used.
    (4) The in-use torque measurement must be within two percent of the 
torque measured by the master system for each load used.
    (5) If the in-use torque is not within two percent of the master 
torque, 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 torque 
transducer calibration, but may be used to span the transducer prior to 
engine testing.
    (d) Other engine dynamometer system calibrations such as speed are 
performed as specified by the dynamometer manufacturer or as dictated by 
good engineering practice.



Sec. 91.307  Engine cooling system.

    An engine cooling system is required with sufficient capacity to 
maintain the engine at normal operating temperatures as prescribed by 
the engine manufacturer. Auxiliary fan(s) may be

[[Page 327]]

used to maintain sufficient engine cooling during dynamometer operation.



Sec. 91.308  Lubricating oil and test fuel.

    (a) Lubricating oil. (1) Use the engine lubricating oil which meets 
the marine engine manufacturer's requirements for a particular engine 
and intended usage. Record the specifications of the lubricating oil 
used for the test.
    (2) For two-stroke engines, the fuel/oil mixture ratio must be that 
which is recommended by the manufacturer. If the flow rate of the oil 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 in the 
emission calculations described in Sec. 91.419 and Sec. 91.426. Good 
engineering judgment may be used to estimate oil flow when oil injection 
is used.
    (b) Test fuels--certification. The manufacturer must use gasoline 
having the specifications or substantially equivalent specifications 
approved by the Administrator, as specified in Table 3 in appendix A of 
this subpart for exhaust emission testing of gasoline fueled engines. 
The specification range of the fuel to be used under this paragraph must 
be reported in accordance with Sec. 91.109(d).
    (c) Test fuels--service accumulation. (1) Unleaded gasoline 
representative of commercial gasoline which will be generally available 
through retail outlets must be used in service accumulation for 
gasoline-fueled marine engines. As an alternative, the certification 
test fuels specified under paragraph (b) of this section for engine 
service accumulation. Leaded fuel may not be used during service 
accumulation.
    (2) The octane rating of the gasoline used may not be higher than 
4.0 research octane numbers above the minimum recommended by the 
manufacturer and have a minimum sensitivity of 7.5 octane numbers, where 
sensitivity is defined as research octane number minus motor octane 
number.
    (d) Other fuels may be used for testing provided:
    (1) They are commercially viable,
    (2) Information, acceptable to the Administrator, is provided to 
show that only the designated fuel would be used in customer service,
    (3) Use of a fuel listed under paragraph (b) of this section would 
have a detrimental effect on emissions or durability; and
    (4) The Administrator provides written approval of the fuel 
specifications prior to the start of testing.



Sec. 91.309  Engine intake air temperature measurement.

    (a) Engine intake air temperature measurement must be made within 
100 cm of the air-intake of the engine. The measurement location must be 
either in the supply system or in the air stream entering the engine.
    (b) The temperature measurements must be accurate to within 2 [deg]C.



Sec. 91.310  Engine intake air humidity measurement.

    This section refers to engines which are supplied with intake air 
other than the ambient air in the test cell (i.e., air which has been 
pumbed directly to the engine air intake system). For engines which use 
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 its absolute 
humidity altered is considered humidity-conditioned air. For this type 
of intake air supply, the humidity measurements must be made within the 
intake air supply system, and after the humidity conditioning has taken 
place.
    (b) Unconditioned air supply. Humidity measurements in unconditioned 
intake air supply must be made in the intake air stream entering the 
engine. Alternatively, the humidity measurements can be measured within 
the intake air stream entering the supply system.



Sec. 91.311  Test conditions.

    (a) General requirements. (1) Ambient temperature levels encountered 
by the test engine throughout the test sequence may not be less than 20 
[deg]C nor more than 30 [deg]C.
    (2) Calculate all volumes and volumetric flow rates at standard 
conditions for temperature and pressure. Use these conditions 
consistently throughout all calculations. Standard conditions for 
temperature and pressure are 25 [deg]C and 101.3 kPa.

[[Page 328]]

    (b) Engine test conditions. Measure the absolute temperature 
(designated as T and expressed in Kelvin) of the engine air at the inlet 
to the engine and the dry atmospheric pressure (designated as ps and 
expressed in kPa. Determine the parameter f 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 f must 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 each calibration gas.
    (b) Pure gases. The required purity of the gases is defined by the 
contamination limits given in parenthesis. The following gases must be 
available for operation.
    (1) Purified nitrogen, also referred to as ``zero-grade nitrogen'' 
(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 (402 percent 
hydrogen, balance helium) (Contamination<=1 ppm C, <=400 ppm CO)
    (4) Purified synthetic air, also referred to as ``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 values are to be 
derived from NIST ``Standard Reference Materials'' (SRM's) or other 
local gas standards and are to be single blends as specified in this 
subsection.
    (2) Mixtures of gases having the following chemical compositions 
must be available:

C3 H8 and purified synthetic air (dilute 
    measurements); C3 H8 and purified nitrogen 
    (raw measurements);
CO and purified nitrogen;
NOX and purified nitrogen (the amount of NO2 
    contained in this calibration gas must not exceed five percent of 
    the NO content);
CO2 and purified nitrogen.

    Note: For the HFID or FID, the manufacturer may choose to use as a 
diluent span gas and the calibration gas either purified synthetic air 
or purified nitrogen. Any mixture of C3 H8 and 
purified synthetic air which contains a concentration of propane higher 
than what a gas supplier considers to be safe may be substituted with a 
mixture of C3 H8 and purified nitrogen. However, 
the manufacturer must be consistent in the choice of diluent (zero air 
or purified nitrogen) between the calibration and span gases. If a 
manufacturer chooses to use C3 H8 and purified 
nitrogen for the calibration gases, then purified nitrogen must be the 
diluent for the span gases.

    (3) The true concentration of a span gas must be within 2 percent of the NIST gas standard. The true 
concentration of a calibration gas must be within 1 percent of the NIST gas standard. The use of precision 
blending devices (gas dividers) to obtain the required calibration gas 
concentrations is acceptable. Give all concentrations of calibration gas 
on a volume basis (volume percent or volume ppm).
    (4) The gas concentrations used for calibration and span may also be 
obtained by means of a gas divider, diluting with purified N2 
or with purified synthetic air. The accuracy of the mixing device must 
be such that the concentration of the diluted gases may be determined to 
within 2 percent.
    (d) Oxygen interference check gases must contain propane with 350 
ppmC 75 ppmC hydrocarbon. Determine the 
concentration value to calibration gas tolerances by chromatographic 
analysis of total hydrocarbons plus impurities or by dynamic blending. 
Use nitrogen as the 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 
balance being helium. The mixture

[[Page 329]]

shall contain less than one ppm equivalent carbon response; 98 to 100 
percent hydrogen fuel may be used with advance approval of the 
Administrator.
    (f) Hydrocarbon analyzer burner air. The concentration of oxygen 
must be within one mole percent of the oxygen concentration of the 
burner air used in the latest oxygen interference check (percent 
O2 I), see Sec. 91.316(d). If the difference in oxygen 
concentration is greater than one mole percent, then the oxygen 
interference must be checked and the analyzer adjusted if necessary, to 
meet the percent O2 I requirements. The burner air must 
contain less than two ppmC hydrocarbon.



Sec. 91.313  Analyzers required.

    (a) Analyzers. Analyze measured gases with the following 
instruments:
    (1) Carbon monoxide (CO) analysis. (i) The carbon 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 Gas Sampling, the 
hydrocarbon analyzer must be of the heated flame ionization (HFID) type. 
For constant volume sampling, the hydrocarbon analyzer may be of the 
flame ionization (FID) type or of the heated flame ionization (HFID) 
type.
    (ii) For the HFID system, if the temperature of the exhaust gas at 
the 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 wall 
temperature of 190 11 [deg]C. If the temperature 
of the exhaust gas at the sample probe is above 190 [deg]C, the 
temperature of the valves, pipe work, and so forth, must be controlled 
so 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 continuous operation at 
temperatures to 200 [deg]C. It must by capable of maintaining 
temperature within 5.5 [deg]C of the set point.
    (iv) Fuel and burner air must conform to the specifications in Sec. 
91.312.
    (v) The percent of oxygen interference must be less than three 
percent, 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 NO 
converter efficiency must be at least 90 percent.
    (B) An ice bath located after the NOX converter 
(optional).
    (C) A chemiluminescent detector (CLD) or heated chemiluminescent 
detector (HCLD).
    (ii) The quench interference must be less than three percent as 
measured in Sec. 91.325.
    (b) Other gas analyzers yielding equivalent results may be used with 
advance approval of the Administrator.
    (c) The following requirements must be incorporated as indicated in 
systems used for testing under this subpart.
    (1) Carbon monoxide and carbon dioxide measurements must be made on 
a dry basis (for raw exhaust measurement only). Specific requirements 
for the means of drying the sample can be found in Sec. 91.313(e).
    (2) Calibration or span gases for the NOX measurement 
system must pass through the NO2 to NO converter.
    (d) The electromagnetic compatibility (EMC) of the equipment must be 
on a level as to minimize additional errors.
    (e) Gas drying. Chemical dryers are not an acceptable method of 
removing water from the sample. Water removal by condensation is 
acceptable. If water is removed by condensation, the sample gas 
temperature or sample dew point must be monitored either within the 
water trap or downstream and its temperature must not exceed 7 [deg]C. A 
water trap performing this function is an acceptable method. Means other 
than condensation may be used only with prior approval from the 
Administrator.

[[Page 330]]



Sec. 91.314  Analyzer accuracy and specifications.

    (a) Measurement accuracy--general. The analyzers must have a 
measuring range which allows them to measure the concentrations of the 
exhaust gas sample pollutants with the accuracies shown in Table 2 in 
appendix A to this subpart.
    (1) Precision. The precision of the analyzer must be, at worst, 
1 percent of full-scale concentration for each 
range used. 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 and 
calibration or span gases over any 10-second period may not exceed two 
percent of full-scale chart deflection on all ranges used.
    (3) Zero drift. The analyzer zero-response drift during a one-hour 
period must be less than two percent of full-scale chart deflection on 
the lowest range used. The zero-response is defined as the mean response 
including noise to a zero-gas during a 30-second time interval.
    (4) Span drift. The analyzer span drift during a one-hour period 
must be less than two percent of full-scale chart deflection on the 
lowest range used. The analyzer span is defined as the difference 
between the span-response and the zero-response. The span-response is 
defined as the mean response including noise to a span gas during a 30-
second time interval.
    (b) Operating procedure for analyzers and sampling system. Follow 
the start-up and operating instructions of the instrument manufacturer. 
Adhere to the minimum requirements given in Sec. 91.316 to Sec. 91.325 
and Sec. 91.409.
    (c) Emission measurement accuracy--bag sampling. (1) Good 
engineering practice dictates that exhaust emission sample analyzer 
readings below 15 percent of full scale chart deflection should 
generally not be used.
    (2) Some high resolution read-out systems, such as computers, data 
loggers, and so forth, can provide sufficient accuracy and resolution 
below 15 percent of full scale. Such systems may be used provided that 
additional calibrations are made to ensure the accuracy of the 
calibration curves. The following procedure for calibration below 15 
percent of full scale may be used:
    Note: If a gas divider is used, the gas divider must conform to the 
accuracy requirements as follows: The use of precision blending devices 
(gas dividers) to obtain the required calibration gas concentrations is 
acceptable, provided that the blended gases are accurate to within 
1.5 percent of NIST gas standards or other gas 
standards which have been approved by the Administrator. This accuracy 
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 calibration gas. 
The span gases must be accurate to within 2 
percent of NIST gas standards or other gas standards which have been 
approved by the Administrator.
    (ii) Generate a calibration curve according to, and meeting the 
requirements of the sections describing analyzer calibrations which are 
found in Sec. Sec. 91.316, 91.317, 91.318, and 91.320 of this chapter.
    (iii) Select a calibration gas (a span gas may be used for 
calibrating the CO2 analyzer) with a concentration between 
the two lowest non-zero gas divider increments. This gas must be 
``named'' to an accuracy of 2 percent of NIST gas 
standards, or other standards approved by the Administrator.
    (iv) Using the calibration curve fitted to the points generated in 
paragraphs (c)(2) (i) and (ii) of this section, check the concentration 
of the gas selected in paragraph (c)(2)(iii) of this section. The 
concentration derived from the curve must be within 2.3 percent (2.8 percent for 
CO2 span gas) of the gas' original named concentration.
    (v) Provided the requirements of paragraph (c)(2)(iv) of this 
section are met, use the gas divider with the gas selected in paragraph 
(c)(2)(iii) of this section and determine the remainder of the 
calibration points. Fit a calibration curve per Sec. Sec. 91.316, 
91.317, 91.318, and 91.320 of this chapter for the entire analyzer 
range.
    (d) Emission measurement accuracy--continuous sampling. Analyzers 
used for continuous analysis must be operated such that the measured 
concentration falls between 15 and 100 percent of full scale chart 
deflection. Exceptions to these limits are:

[[Page 331]]

    (1) The analyzer's response may be less than 15 percent or more than 
100 percent of full scale if automatic range change circuitry is used 
and the limits for range changes are between 15 and 100 percent of full 
scale chart deflection;
    (2) The analyzer's response may be less than 15 percent of full 
scale if:
    (i) Alternative in paragraph (c)(2) of this section is used to 
ensure that the accuracy of the calibration curve is maintained below 15 
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 integrated 
chart deflection value for the cycle is greater than 15 percent of full 
scale; or
    (iv) The contribution of all data read below the 15 percent level is 
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 to the 
recommendations of the manufacturer. If not specified, a minimum of two 
hours should be allowed for warming up the analyzers.
    (b) NDIR and HFID analyzer. Tune and maintain the NDIR analyzer per 
the instrument manufacturer recommendations. The combustion flame of the 
HFID analyzer must be optimized in order to meet the specifications in 
Sec. 91.316(b).
    (c) Zero setting and calibration. Using purified synthetic air (or 
nitrogen), set the CO, CO2, NOX and HC analyzers 
at zero. Connect the appropriate calibrating gases to the analyzers and 
record the values. The same gas flow rates shall be used as when 
sampling exhaust.
    (d) Rechecking of zero setting. Recheck the zero setting and, if 
necessary, repeat the procedure described in paragraph (c) of this 
section.



Sec. 91.316  Hydrocarbon analyzer calibration.

    (a) Calibrate the FID and HFID hydrocarbon analyzer as described in 
this section. Operate the HFID 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 and HFID hydrocarbon analyzer for optimum hydrocarbon response as 
specified by this paragraph. Alternative methods yielding equivalent 
results may be used, if approved in advance by the Administrator.
    (1) Follow good engineering practices for initial instrument start-
up and basic operating adjustment using the appropriate fuel (see Sec. 
91.312) and purified synthetic air or zero-grade nitrogen.
    (2) One of the following procedures is required for FID or HFID 
optimization:
    (i) The procedure outlined in Society of Automotive Engineers (SAE) 
paper No. 770141, ``Optimization of Flame Ionization Detector for 
Determination of Hydrocarbons in Diluted Automobile Exhaust''; author, 
Glenn D. Reschke. This procedure has been incorporated by reference. See 
Sec. 91.6.
    (ii) The HFID optimization procedures outlined in 40 CFR part 1065, 
subpart D.
    (iii) Alternative procedures may be used if approved in advance by 
the Administrator.
    (3) After the optimum flow rates have been determined, they are 
recorded for future reference.
    (c) Initial and periodic calibration. Prior to introduction into 
service and monthly thereafter, or within one month prior to the 
certification test, calibrate the FID or HFID hydrocarbon analyzer on 
all normally used instrument ranges, using the steps in this paragraph. 
Use the same flow rate and pressures as when analyzing samples. 
Introduce calibration gases directly at the analyzer. An optional 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 or 
zero-grade nitrogen.
    (3) Calibrate on each used operating range with calibration gases 
having nominal concentrations between 10 and 90 percent of that range. A 
minimum of six evenly spaced points covering at least 80 percent of the 
10 to 90 percent range (64 percent) is required (see following table).

[[Page 332]]



------------------------------------------------------------------------
   Example calibration points (percent)      Acceptable for calibration?
------------------------------------------------------------------------
20, 30, 40, 50, 60, 70....................  No, range covered is 50?
                                             percent, not 64 percent.
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 range covered, 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 at each data 
point, calculate concentration values by use of a single calibration 
factor for that range. If the deviation exceeds two percent at any 
point, use the best-fit non-linear equation which represents the data to 
within two percent of each test point to determine concentration.
    (d) Oxygen interference optimization. Choose a range where the 
oxygen interference check gases will fall in the upper 50 percent. 
Conduct the test, as outlined in this paragraph, with the oven 
temperature set as required by the instrument manufacturer. Oxygen 
interference check gas specifications are found in Sec. 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 percent 
of full scale repeat paragraphs (d)(1) and (d)(2) of this section to 
correct the problem.
    (4) Introduce the 5 percent and 10 percent oxygen interference check 
gases.
    (5) Recheck the zero response. If it has changed more than 1 percent of full scale, repeat the test.
    (6) Calculate the percent of oxygen interference (designated as 
percent O2 I) for each mixture in paragraph (d)(4) of this 
section according to the following equation:

percent O2 I = (B - Analyzer response (ppm C))/B x 100
[GRAPHIC] [TIFF OMITTED] TR21SE05.022

Where:

A=hydrocarbon concentration (ppmC) of the span gas used in paragraph 
(d)(2) of this section.
B=hydrocarbon concentration (ppmC) of the oxygen interference check 
gases used in paragraph (d)(4) of this section.

    (7) The percent of oxygen interference (designated as percent 
O2 I) must be less than three percent 
for all required 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's 
specifications, repeating paragraphs (d)(1) through (d)(7) of this 
section for each flow.
    (9) If the oxygen interference is greater than the specification 
after adjusting the air flow, vary the fuel flow and thereafter the 
sample flow, repeating paragraphs (d)(1) through (d)(7) of this section 
for each new setting.
    (10) If the oxygen interference is still greater than the 
specifications, repair or replace the analyzer, FID fuel, or burner air 
prior to testing. Repeat this section with the repaired or replaced 
equipment or gases.

[61 FR 52102, Oct. 4, 1996, as amended at 70 FR 40451, July 13, 2005]



Sec. 91.317  Carbon monoxide analyzer calibration.

    (a) Calibrate the NDIR carbon monoxide analyzer described in this 
section.
    (b) Initial and periodic interference check. Prior to its 
introduction into service and annually thereafter, check the NDIR carbon 
monoxide analyzer for response to water vapor and CO2.
    (1) Follow good engineering practices for instrument start-up and 
operation.

[[Page 333]]

Adjust the analyzer to optimize performance on the most sensitive range 
to be used.
    (2) Zero the carbon monoxide analyzer with either purified synthetic 
air or zero-grade nitrogen.
    (3) Bubble a mixture of three percent CO2 in 
N2 through water at room temperature and record analyzer 
response.
    (4) An analyzer response of more than one percent of full scale for 
ranges above 300 ppm full scale or more than three ppm on ranges below 
300 ppm full scale requires corrective action. (Use of conditioning 
columns is one form of corrective action which may be taken.)
    (c) Initial and periodic calibration. Calibrate the NDIR carbon 
monoxide analyzer prior to its introduction into service and monthly 
thereafter.
    (1) Adjust the analyzer to optimize performance.
    (2) Zero the carbon monoxide analyzer with either purified synthetic 
air or zero-grade nitrogen.
    (3) Calibrate on each used operating range with carbon monoxide-in-
N2 calibration gases having nominal concentrations between 10 
and 90 percent of that range. A minimum of six evenly spaced points 
covering at least 80 percent of the 10 to 90 range (64 percent) 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 64 percent.
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 range covered, a
                                             minimum of six points is
                                             needed.
------------------------------------------------------------------------

    (4) Additional calibration points may be generated. For each range 
calibrated, if the deviation from a least-squares best-fit straight line 
is two percent or less of the value at each data point, concentration 
values may be calculated by use of a single calibration factor for that 
range. If the deviation exceeds two percent at any point, use the best-
fit non-linear equation which represents the data to within two percent 
of each test point to determine concentration.



Sec. 91.318  Oxides of nitrogen analyzer calibration.

    (a) Calibrate the chemiluminescent oxides of nitrogen analyzer as 
described in this section.
    (b) Initial and periodic interference. Prior to its introduction 
into service, and monthly thereafter, check the chemiluminescent oxides 
of nitrogen analyzer for NO2 to NO converter efficiency. 
Figure 2 in appendix B of this subpart is a reference for the following 
paragraphs:
    (1) Follow good engineering practices for instrument start-up and 
operation. Adjust the analyzer to optimize performance.
    (2) Zero the oxides of nitrogen analyzer with purified synthetic air 
or zero-grade nitrogen.
    (3) Connect the outlet of the NOX generator to the sample 
inlet of the oxides of nitrogen analyzer which has been set to the most 
common operating range.
    (4) Introduce into the NOX generator analyzer-system an 
NO-in-nitrogen (N2) mixture with an NO concentration equal to 
approximately 80 percent of the most common operating range. The 
NO2 content of the gas mixture must be less than 5 percent of 
the NO concentration.
    (5) With the oxides of nitrogen analyzer in the NO mode, record the 
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 NO 
indicated by the analyzer is about 10 percent less than indicated in 
paragraph (b)(5) of this section. Record the concentration of NO in this 
NO+O2 mixture as value ``c.''
    (7) Switch the NOX generator to the generation mode and 
adjust the generation rate so that the NO measured on the analyzer is 20 
percent of that measured in paragraph (b)(5) of this section. 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 NOX 
mode and measure total NOX. Record this value as ``a.''
    (9) Switch off the NOX generator but maintain gas flow 
through the system.

[[Page 334]]

The oxides of nitrogen analyzer will indicate the NOX in the 
NO+O2 mixture. Record this value as ``b.''
    (10) Turn off the NOX generator O2 (or air) 
supply. The analyzer will now indicate the NOX in the 
original NO-in-N2 mixture. This value should be no more than 
5 percent above the value indicated in paragraph (b)(4) of this section.
    (11) Calculate the efficiency of the NOX converter by 
substituting the concentrations obtained into the following equation:

percent efficiency = (1 + (a - b)/(c - d)) x 100
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, corrective 
action is required.
    (c) Initial and periodic calibration. Prior to its introduction into 
service, and monthly thereafter, calibrate the chemiluminescent oxides 
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 or 
zero-grade nitrogen.
    (3) Calibrate on each normally used operating range with NO-in-
N2 calibration gases with nominal concentrations between 10 
and 90 percent of that range. A minimum of six evenly spaced points 
covering at least 80 percent of the 10 to 90 percent range (64 percent) 
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 64 percent.
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 range covered, a
                                             minimum of six points is
                                             needed.
------------------------------------------------------------------------

    (4) Additional calibration points may be generated. For each range 
calibrated, if the deviation from a least-squares best-fit straight line 
is two percent or less of the value at each data point, concentration 
values may be calculated by use of a single calibration factor for that 
range. If the deviation exceeds two percent at any point, use the best-
fit non-linear equation which represents the data to within two percent 
of each test point to determine concentration.
    (d) The initial and periodic interference, system check, and 
calibration test procedures specified in 40 CFR part 1065, subparts C 
and D, may be used in lieu of the procedures specified in this section.

[61 FR 52102, Oct. 4, 1996, as amended at 70 FR 40451, July 13, 2005]



Sec. 91.319  NOX converter check.

    (a) The efficiency of the converter used for the conversion of 
NO2 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 to this 
subpart (see also Sec. 91.318 of this chapter) and the procedures 
described in paragraphs (a)(2) through (a)(8) of this section, test the 
efficiency of converters by means of an ozonator.
    (2) Calibrate the HCLD in the most common operating range following 
the manufacturer's specifications using zero and span gas (the NO 
content of which must amount to about 80 percent of the operating range 
and the NO2 concentration of the gas mixture less than 5 
percent of the NO concentration). The NOX analyzer must be in 
the NO mode so that the span gas does not pass through the converter. 
Record the indicated concentration.
    (3) Calculate the efficiency of the NOX converter as 
described in Sec. 91.318(b).
    (4) Via a T-fitting, add oxygen continuously to the gas flow until 
the concentration indicated is about 20 percent less than the indicated 
calibration concentration given in paragraph (a)(2) of this section. 
Record the indicated concentration as ``c''. The ozonator is kept 
deactivated throughout the process.

[[Page 335]]

    (5) Activate the ozonator to generate enough ozone to bring the NO 
concentration down to about 20 percent (minimum 10 percent) of the 
calibration 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 the 
NOX converter cannot give a reduction from 80 percent to 20 
percent, then use the highest range which will give the reduction.
    (6) Switch the NO analyzer to the NOX mode, which means 
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 in 
paragraph (a)(6) of this section passes through the converter into the 
detector. Record the indicated concentration as ``b''.
    (8) Switched to NO mode with the ozonator deactivated, the flow of 
oxygen or synthetic air is also shut off. The NOX reading of 
the analyzer may not deviate by more than 5 
percent 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 each 
calibration of the NOX analyzer.
    (c) The efficiency of the converter may not be less than 90 percent.



Sec. 91.320  Carbon dioxide analyzer calibration.

    (a) Prior to its introduction into service, and monthly thereafter, 
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 and 
operation. Adjust the analyzer to optimize performance.
    (2) Zero the carbon dioxide analyzer with either purified synthetic 
air or zero-grade nitrogen.
    (3) Calibrate on each normally used operating range with carbon 
dioxide-in-N2 calibration or span gases having nominal 
concentrations between 10 and 90 percent of that range. A minimum of six 
evenly spaced points covering at least 80 percent of the 10 to 90 
percent range (64 percent) 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 64 percent.
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 range covered, a
                                             minimum of six points is
                                             needed.
------------------------------------------------------------------------

    (4) Additional calibration points may be generated. For each range 
calibrated, if the deviation from a least-squares best-fit straight line 
is 2 percent or less of the value at each data point, concentration 
values may be calculated by use of a single calibration factor for that 
range. If the deviation exceeds 2 percent at any point, use the best-fit 
non-linear equation which represents the data to within 2 percent of 
each test point to determine concentration.
    (b) The initial and periodic interference, system check, and 
calibration test procedures specified in 40 CFR part 1065, subparts C 
and D, may be used in lieu of the procedures in this section.

[61 FR 52102, Oct. 4, 1996, as amended at 70 FR 40451, July 13, 2005]



Sec. 91.321  NDIR analyzer calibration.

    (a) Detector optimization. If necessary, follow the manufacturer's 
instructions for initial start-up and basic operating adjustments.
    (b) Calibration curve. Develop a calibration curve for each range 
used as follows:
    (1) Zero the analyzer.
    (2) Span the analyzer to give a response of approximately 90 percent 
of full-scale chart deflection.
    (3) Recheck the zero response. If it has changed more than 0.5 
percent 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 nominal 
concentrations between 10 and 90 percent of full-scale concentration. A 
minimum of six evenly spaced points covering at least 80 percent of the 
10 to 90 percent range (64 percent) is required (see following table).

[[Page 336]]



------------------------------------------------------------------------
   Example calibration points (percent)      Acceptable for calibration?
------------------------------------------------------------------------
20, 30, 40, 50, 60, 70....................  No, range covered is 50
                                             percent, not 64 percent.
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 range covered, a
                                             minimum of six points is
                                             needed.
------------------------------------------------------------------------

    (5) Generate a calibration curve. The calibration curve must be of 
fourth order or less, have five or fewer coefficients, and be of the 
form of equation (1) or (2). Include zero as a data point. Compensation 
for known impurities in the zero gas can be made to the zero-data point. 
The calibration curve must fit the data points within 2 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 this 
section exists;
    (ii) The responses generated in paragraph (b)(4) of this section are 
within one percent of full scale or two percent of point, whichever is 
less, of the responses predicted by the calibration curve for the gases 
used in paragraph (b)(4) of this section.
    (7) If multiple range analyzers are used, the lowest range used must 
meet the curve fit requirements below 15 percent of full scale.
    (c) Linear calibration criteria. If any range is within 2 percent of 
being linear, a linear calibration may be used. To determine if this 
criterion is met:
    (1) Perform a linear least-square regression on the data generated. 
Use an equation of the form y=mx, where x is the actual chart 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 (designated as 
y).
    (3) Determine the linearity (designated as percent L) for each 
calibration gas by:
[GRAPHIC] [TIFF OMITTED] TR04OC96.011

    (4) The linearity criterion is met if the percent L is less than 
2 percent for each data point generated. For each 
emission test, use a calibration curve of the form Y=mx. The slope 
(designated as 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 the 
manufacturer 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 each 
analyzer complies with the specifications given in Table 2 in appendix A 
to this subpart.
    (b) If a stainless steel NO2 to NO converter is used, 
condition all new or replacement converters. The conditioning consists 
of either purging the converter with air for a minimum of four hours or 
until the converter efficiency is greater than 90 percent. The converter 
must be at operational temperature while purging. Do not use this 
procedure prior to checking converter efficiency on in-use converters.



Sec. 91.324  Analyzer leakage check.

    (a) Vacuum side leak check. (1) Check any location within the 
analysis system where a vacuum leak could affect the test results.
    (2) The maximum allowable leakage rate on the vacuum side is 0.5 
percent of the in-use flow rate for the portion

[[Page 337]]

of the system being checked. The analyzer flows and bypass flows may be 
used to estimate the in-use flow rates.
    (3) The sample probe and the connection between the sample probe and 
valve V2 (see Figure 1 in appendix B of this subpart) may be excluded 
from the leak check.
    (b) Pressure side leak check. Substantial leaks of the sample on the 
pressure side of the system may impact sample integrity if the leaks are 
of sufficient magnitude. As a safety precaution, it is good engineering 
practice to perform periodic pressure side leak checks on the sampling 
system.



Sec. 91.325  Analyzer interference checks.

    (a) Gases present in the exhaust other than the one being analyzed 
can interfere with the reading in several ways. Positive interference 
occurs in NDIR and PMD instruments when the interfering gas gives the 
same effect as the gas being measured, but to a lesser degree. Negative 
interference occurs in NDIR instruments by the interfering gas 
broadening the absorption band of the measured gas, and in CLD 
instruments by the interfering gas quenching the radiation. The 
interference checks described in this section are to be made initially 
and 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 gas having a 
concentration of between 80 percent and 100 percent inclusive of full 
scale of the maximum operating range used during testing and record the 
analyzer response. For dry measurements, this mixture may be introduced 
into the sample system prior to the water trap. The analyzer response 
must not be more than one percent of full scale for ranges equal to or 
above 300 ppm or more than three ppm for ranges below 300 ppm.
    (c) NOX analyzer quench check. The two gases of concern 
for CLD (and HCLD) analyzers are CO2 and water vapor. Quench 
responses to these two gases are proportional to their concentrations 
and, therefore, require test techniques to determine quench at the 
highest expected concentrations experienced during testing.
    (1) NOX analyzer CO2 quench check. (i) Pass a 
CO2 span gas having a concentration of 80 percent to 100 
percent of full scale of the maximum operating range used during testing 
through the CO2 NDIR analyzer and record the value as ``a.''
    (ii) Dilute the CO2 span gas approximately 50 percent 
with NO span gas and pass through the CO2 NDIR and CLD (or 
HCLD). Record the CO2 and NO values as ``b'' and ``c'', 
respectively.
    (iii) Shut off the CO2 and pass only the NO span gas 
through 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 [c x 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 check 
applies to wet measurements only. Pass an NO span gas having a 
concentration of 80 percent to 100 percent of full scale of a normal 
operating range through the CLD (or HCLD). Record the response as ``D.'' 
Bubble through water at room temperature the NO span gas and pass it 
through the CLD (or HCLD). Record the analyzers response as ``AR.'' 
Determine and record the analyzers absolute operating pressure and the 
bubbler water temperature. (It is important that the NO span gas 
contains minimal NO2 concentration for this check. No 
allowance for absorption of NO2 in water has been made in the 
following quench calculations.)
    (ii) Calculations for water quench must consider dilution of the NO 
span gas with water vapor and scaling of the water vapor concentration 
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 water concentration (``Z1'', 
percent) in the mixture by the following equation:

Z1 = 100 x (Pwb / GP)

Where:


[[Page 338]]


GP=the analyzer's standard operating pressure (pascals)

    (iii) Calculate the expected dilute NO span gas and water vapor 
mixture concentration (designated as ``D1'') by the following equation:

D1 = D x (1 - Z1/100)

    (iv)(A) The maximum raw or dilute exhaust water vapor concentration 
expected during testing (designated as Wm) can be estimated from the 
CO2 span gas (or as defined in the equation 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 of 1.8:1 as:

Wm(%) = 0.9 x A(%)

Where:

A = maximum CO2 concentration expected in the sample system 
during testing.

    (B) Percent water quench shall not exceed 3 percent and shall be 
calculated by:

% Water Quench = 100 x (D1 - AR)/D1 x Wm/Z1

[61 FR 52102, Oct. 4, 1996, as amended at 70 FR 40451, July 13, 2005]



Sec. 91.326  Pre- and post-test analyzer calibration.

    Calibrate the operating range of each analyzer used during the test 
prior to and after each test in accordance with the following procedure 
(A chronic need for parameter adjustment can indicate a need for 
instrument maintenance.):
    (a) Make the calibration using a zero gas and a span gas whose 
nominal 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 used 
during exhaust emission test sampling.
    (c) Warm-up and stabilize the analyzer(s) before the calibration is 
made.
    (d) If necessary, clean and/or replace filter elements before 
calibration is made.
    (e) Calibrate analyzer(s) as follows:
    (1) Zero the analyzer using the appropriate zero gas. Adjust 
analyzer zero if necessary. Zero reading should be stable.
    (2) Span the analyzer using the appropriate span gas for the range 
being calibrated. Adjust the analyzer to the calibration set point if 
necessary.
    (3) Recheck zero and span set points.
    (4) If the response of the zero gas or span gas differs more than 
one 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 sampling systems which 
use heated components, use engineering judgment to locate the coolest 
portion of each component (pump, sample line section, filters, and so 
forth) in the heated portion of the sampling system that has a separate 
source of power or heating element. Monitor the temperature at that 
location. If several components are within an oven, then only the 
surface temperature of the component with the largest thermal mass and 
the oven temperature need be measured.
    (b) If water is removed by condensation, monitor the sample gas 
temperature or sample dew point either within the water trap or 
downstream. 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 maximum 
tolerances shown in Table 2 in appendix A to this subpart are not 
exceeded.
    (b) Calibrate all equipment and analyzers according to the 
frequencies shown in Table 2 in appendix A to this subpart.
    (c) Prior to initial use and after major repairs, bench check each 
analyzer (see Sec. 91.323).
    (d) Calibrate as specified in Sec. 91.306 and Sec. Sec. 91.315 
through 91.322.
    (e) At least monthly, or after any maintenance which could alter 
calibration, perform the following calibrations and checks.
    (1) Leak check the vacuum side of the system (see Sec. 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 the 
specifications in Table 2 in appendix A to this subpart are met.

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    (f) Verify that all NDIR analyzers meet the water rejection ratio 
and the CO2 rejection ratio as specified in Sec. 91.325.
    (g) Verify that the dynamometer test stand and power output 
instrumentation meet the specifications in Table 2 in appendix A to this 
subpart.



Sec. 91.329  Catalyst thermal stress test.

    (a) Oven characteristics. The oven used for termally stressing the 
test catalyst must be capable of maintaining a temperature of 500 5 [deg]C and 1000 10 [deg]C.
    (b) Evaluation gas composition. (1) A synthetic exhaust gas mixture 
is used for evaluating the effect of thermal stress on catalyst 
conversion efficiency.
    (2) The synthetic exhaust gas mixture must have the following 
composition:

------------------------------------------------------------------------
                                                   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 hydrocarbon proportions of
  the mixture may be changed to 1.2% and 4650 ppm, respectively (using
  on of these alternative concentrations requires that the other be used
  simultaneously).
\2\ Propylene/propane ratio=2/1.


[61 FR 52102, Oct. 4, 1996; 62 FR 20066, Apr. 24, 1997]



             Sec. Appendix A to Subpart D of Part 91--Tables

                                    Table 1--Symbols Used in Subparts D and E
----------------------------------------------------------------------------------------------------------------
             Symbol                             Term                                    Unit
----------------------------------------------------------------------------------------------------------------
AYM.............................  Final weighted emission test      g/kW-hr
                                   results.
C3 H8...........................  Propane.........................  ............................................
CB..............................  Concentration of emission in      ppm
                                   background sample.
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 dry
                                   basis.
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
                                   sampling period.
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 flow venturi.
MX..............................  Molecular weight of a specific    g/mole
                                   molecule(XX).
mass............................  Pollutant mass flow.............  g/h
MFUEL...........................  Mass of fuel consumed during a    g
                                   sampling period.
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
                                   auxiliaries fitted for the test.
PB..............................  Total barometric pressure         kPa
                                   (average of the pre-test and
                                   post-test values).
Pdew............................  Test ambient saturation vapor     kPa
                                   pressure at the dew point.
Pe..............................  Absolute pump outlet pressure...  kPa
PED.............................  Pressure drop between the inlet   kPa
                                   and throat of metering venturi.
Pi..............................  Pi=PM, i + PAUX,i...............  ............................................

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PM..............................  Maximum power measured at the     kW
                                   test speed under test
                                   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 CVS at 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 or flowmeter.
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) on
                                   wet basis.
WF..............................  Weighing factor.................  ............................................
Z1..............................  Water concentration.............  percent
[alpha].........................  Fuel specific factor
                                   representing the hydrogen to
                                   carbon ratio.
----------------------------------------------------------------------------------------------------------------


                               Table 2--Measurement Accuracy Calibration Frequency
----------------------------------------------------------------------------------------------------------------
                                            Permissible deviation from reading \1\
     No.                Item          --------------------------------------------------  Calibration frequency
                                               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  Same...................  As required.
               (combustion air).        [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  Same...................  As required.
               to dilution system.      [deg]C.
15..........  Dilution air humidity..  3% absolute.
16..........  HC analyzer............  2% \2\.
17..........  CO analyzer............  2% \2\.
18..........  NOX analyzer...........  2% \2\.
19..........  NOX converter check....  90%....................  Same...................  Monthly.
20..........  CO2 analyzer...........  2% \2\.
----------------------------------------------------------------------------------------------------------------
\1\ All accuracy requirements pertain to the final recorded value which is inclusive of the data acquisition
  system.
\2\ If reading is under 100 ppm then the accuracy shall be 2 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 Part 91--Figures

[GRAPHIC] [TIFF OMITTED] TR04OC96.013


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[GRAPHIC] [TIFF OMITTED] TR04OC96.014


[[Page 344]]





                Subpart E_Gaseous Exhaust Test Procedures



Sec. 91.401  Scope; applicability.

    (a) This subpart describes the procedures to follow in order to 
perform exhaust emission tests on new marine gasoline-fueled spark-
ignition propulsion engines subject to the provisions of subpart A of 
this part 91. Provisions specific to raw gas sampling are in Sec. Sec. 
91.414 through 91.419, provisions specific to constant volume sampling 
are in Sec. Sec. 91.420 through 91.426. All other sections in this 
subpart apply to both raw gas sampling and constant volume sampling 
unless indicated otherwise.
    (b) Requirements for emission test equipment and calibrating this 
equipment are found in subpart D of this part.



Sec. 91.402  Definitions.

    The definitions in Sec. Sec. 91.3, 91.102, and 91.302 apply to this 
subpart.



Sec. 91.403  Symbols and abbreviations.

    (a) The abbreviations in Sec. 91.5 apply to this subpart.
    (b) The symbols in Table 1 in appendix A to subpart D apply to this 
subpart.



Sec. 91.404  Test procedure overview.

    (a) The test consists of prescribed sequences of engine operating 
conditions to be conducted on an engine dynamometer or equivalent load 
and speed measurement device. The exhaust gases generated during engine 
operation are sampled either raw or dilute, and specific components are 
analyzed through the analytical system.
    (b) The tests are designed to determine the brake-specific emissions 
of hydrocarbons, carbon monoxide, and oxides of nitrogen. The test 
consists of one idle mode and four power modes with an exponential 
relationship between torque and speed which span the typical operating 
range of spark-ignition marine propulsion engines. These procedures 
require the determination of the concentration of each pollutant, fuel 
flow, and the power output during each mode. The measured values are 
weighted and used to calculate the grams of each pollutant emitted per 
brake kilowatt hour (g/kW-hr).
    (c)(1) When an engine is tested for exhaust emissions the complete 
engine is tested, with all emission control devices installed and 
functioning.
    (2) Additional accessories (for example, oil cooler, alternators, 
and so forth) may be installed, but such accessory loading will be 
considered parasitic in nature and observed power is used in the 
emission calculation.
    (d) All emission control systems installed on or incorporated in the 
application must be functioning during all procedures in this subpart. 
In cases of component malfunction or failure, no maintenance is allowed 
without prior approval from the Administrator in accordance with Sec. 
91.118.



Sec. 91.405  Recorded information.

    (a) Record the information described in this section for each test 
where 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 prior to 
beginning the warm-up portion of the test (to the nearest tenth hour).
    (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. As long 
as this information is traceable, it may be summarized by system number 
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 be 
measured 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 segment 
zero traces for each range used, and span traces for each range used.
    (d) Test data; modal. (1) Recorder chart or equivalent. Identify for 
each

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test mode the emission concentration traces and the 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 flow 
measurement is not required for dilute testing but is allowed. If the 
fuel flow measurement is a volume measurement system, record the fuel 
temperature in the measurement system for fuel density corrections to 
the mass flow rate. If the fuel temperature is within 3 [deg]C of the 
calibration temperature, no density correction is required.
    (7) Engine intake temperature and humidity for each mode, if 
applicable.
    (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 for each 
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 Table 1 
in appendix A of this subpart.



Sec. 91.407  Engine inlet and exhaust systems.

    (a) The marine engine manufacturer is liable for emission compliance 
over the full range of restrictions that are specified by the 
manufacturer for that particular engine.
    (b) The air inlet filter system and exhaust muffler system 
combination used on the test engine must be the systems expected to 
yield 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 manufacturer for 
exhaust emission stabilizing of an engine, consistent with good 
engineering practice (see Sec. 91.117).
    (1) The manufacturer determines, for each engine family, the number 
of hours at which the engine exhaust emission control system combination 
is stabilized for emission testing. However, this stabilization 
procedure may not exceed 12 hours. The manufacturer must maintain, and 
provide to the Administrator upon request, a record of the rationale 
used in making this determination. If the manufacturer can document 
that, at some time prior to the full 12 hour service accumulation 
period, the engine emissions are decreasing for the remainder of the 12 
hours, the service accumulation may be completed at that time. The 
manufacturer may elect to accumulate 12 hours on each test engine within 
an engine family without making this determination.
    (2) During service accumulation, the fuel and lubricants specified 
in Sec. 91.308 must be used.
    (3) Engine maintenance during service accumulation is allowed only 
in accordance with Sec. 91.117.
    (b) Engine pre-test preparation. (1) Drain and charge the fuel 
tank(s) with the specified test fuel (see Sec. 91.308) to 50 percent of 
the tank's nominal capacity. If an external fuel tank is used, the 
engine fuel inlet system pressure must be typical of what the engine 
will see in use.
    (2) Operate the engine on the dynamometer measuring the fuel 
consumption (fuel consumption required only for raw gas sampling method) 
and torque before and after the emission sampling equipment is 
installed, including the sample probe, using mode 1 from Table 2 in 
appendix A of this subpart. The emission sampling equipment may not 
significantly affect the operational characteristics of the engine 
(typically, the results should agree within five percent).
    (c) Analyzer pre-test procedures. (1) If necessary, warm up and 
stabilize the analyzer(s) before calibrations are performed.
    (2) Replace or clean the filter elements and then vacuum leak check 
the

[[Page 346]]

system per Sec. 91.324(a). If necessary, allow the heated sample line, 
filters, and pumps to reach operating temperature.
    (3) Perform the following system checks:
    (i) If necessary, check the sample-line temperature. Heated FID 
sample line temperature must be maintained between 110 [deg]C and 230 
[deg]C, a heated NOX sample line temperature must be 
maintained between 60 [deg]C and 230 [deg]C.
    (ii) Check that the system response time has been accounted for 
prior to sample collection data recording.
    (iii) A hang-up check is permitted.
    (4) Check analyzer zero and span before and after each test at a 
minimum. Further, check analyzer zero and span any time a range change 
is made or at the maximum demonstrated time span for stability for each 
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 may be made to 
the test engine prior to starting a test.
    (2) If necessary, warm up the dynamometer as recommended by the 
dynamometer manufacturer ore good engineering practice.
    (3) At the manufacturer's option, the engine can be run with the 
throttle in a fixed position or by using the engine's governor (if the 
engine is manufactured with a governor). In either case, the engine 
speed 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 in Sec. 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 50 
percent power at the rated speed for 5 to 7 minutes;
    (iii) Operate the engine at rated speed and maximum power for 25 to 
30 minutes;
    (iv) Option. For four-stroke engines, where appropriate, it is 
permitted to precondition the engine at rated speed and maximum power 
until the oil and water temperatures are stabilized. The temperatures 
are defined as stabilized if they are maintained within 2 percent of 
point for 2 minutes. The engine must be operated a minimum of 10 minutes 
for this option. This optional procedure may be substituted for step in 
paragraphs (b)(2)(iii) of this section;
    (v) Option. If the engine has been operating on service accumulation 
for a minimum of 40 minutes, the service accumulation may be substituted 
for steps in paragraphs (b)(2) (i) through (iii) of this section.
    (3) Record all pre-test data specified in Sec. 91.405(c).
    (4) Start the test cycle (see Sec. 91.410) within 10 minutes of the 
completion of the steps required by paragraph (b)(2) of this section.
    (5) During the first mode calculate the torque corresponding to 
71.6, 46.5, and 25.3 percent of the maximum observed torque for the 
rated speed (see Table 2 in appendix A of this subpart).
    (6) Once engine speed and load are set for a mode, run the engine 
for a sufficient period of time to achieve thermal stability. At the 
manufacturers option, determine and document the appropriate criterion 
for 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. Longer averaging 
periods are acceptable, but the data averaged must be from a continuous 
time period. The duration of time during which this data is recorded is 
referred to as the ``sampling period.'' The data collected during the 
sampling period is used for modal emission calculations.
    (8) Continuously record the analyzer's response to the exhaust gas 
during the sampling period.
    (9) Modes may be repeated.
    (10) If a delay of more than one hour occurs between the end of one 
mode and the beginning of another mode, the test is void and must be 
restarted as described at paragraph (b)(1) of this section.
    (11) The engine speed and load must be maintained within the 
requirements

[[Page 347]]

of Sec. 91.410 during the sampling period for each mode. If this 
requirement is not met, the mode is void and must be restarted.
    (12) If at any time during a mode, the test equipment malfunctions 
or the specifications in Sec. 91.410 can not be met, the test is void, 
and must be aborted. Corrective action should be taken and the test 
restarted.
    (13) Fuel flow and air flow during the idle condition may be 
determined just prior to or immediately following the dynamometer 
sequence, if longer times are required for accurate measurements. If the 
dilute sampling method (Constant Volume Sampling) is used, neither fuel 
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 segment must 
have the zero and span responses recorded prior to the start of the 
test. Only the range(s) used to measure the emissions during the test is 
required to have its zero and span recorded after the completion of the 
test. Depending on the stability of each individual analyzer, more 
frequent zero checks or spans between modes may be necessary.
    (3) It is permitted to change filter elements between test segments.
    (4) A leak check is permitted between modes.
    (5) A hang-up check is permitted between modes (see Sec. 91.413).
    (6) If, during the emission measurement portion of a mode, the value 
of the gauges downstream of the NDIR analyzer(s) G3 or G4 (See Figure 1 
in appendix B of subpart D of this part) differs by more than 0.5 kPa, the mode is void.



Sec. 91.410  Engine test cycle.

    (a) The 5-mode cycle specified in Table 2 in appendix A to this 
subpart shall be followed in dynamometer operation tests of marine 
engines.
    (b) During each non-idle mode the specified speed and load shall be 
held to within 50 rpm or 2 
percent of point, whichever is greater. During each idle mode the engine 
speed shall be held within 75 rpm or 5 percent of the manufacturers specified idle speed, 
whichever is greater. For direct drive products (no neutral gear), it is 
acceptable to have an accessory load on the engine during the idle mode 
provided that the engine speed is within 5 percent 
of the manufacturers specified idle speed and the accessory load is 
representative of in use operation.
    (c) If the operating conditions specified in paragraph (b) of this 
section for modes 2, 3, 4, and 5 cannot be maintained, the Administrator 
may authorize deviations from the specified load conditions. Such 
deviations shall not exceed 10 percent of the maximum torque at the test 
speed. The minimum deviations, above and below the specified load, 
necessary for stable operation shall be determined by the manufacturer 
and approved by the Administrator prior to the test run.
    (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 of 
the last mode in the test. Use the following procedure:
    (1) Introduce a zero-grade gas or room air into the sample probe or 
valve V2 (see Figure 1 in appendix B of subpart D of this part) 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 in 
paragraph (a)(1) of this section, the difference between the zero gas 
response and the hang-up zero response shall not be greater than 5.0 
percent of full scale or 10 ppmC whichever is greater.
    (b) Begin the analyzer span checks within six minutes after the 
completion of the last mode in the test. Record for each analyzer the 
zero and span response for each range used during the preceding test or 
test segment.
    (c) If during the test, the filter element(s) were replaced or 
cleaned, a vacuum check must be performed per Sec. 91.324(a) 
immediately after the span checks. If the vacuum side leak check does 
not meet the requirements of Sec. 91.324(a) the test is void.

[[Page 348]]

    (d) Read and record the post-test data specified in Sec. 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 the following 
requirements:
    (1) The span drift (defined as the change in the difference between 
the zero response and the span response) must not exceed two percent 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 below 155 
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 of 
this subpart.
    (b) Determine from the data collection records the analyzer 
responses 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 the 
individually calculated power points for each value of speed and torque 
recorded during the sampling period. As an alternative, the final value 
for power can be calculated from the average values for speed and 
torque, collected during the sampling period.
    (e) Determine the final value for CO2, CO, HC, and 
NOX concentrations by averaging the concentration of each 
point taken during the sample period for each mode.



Sec. 91.413  Exhaust sample procedure--gaseous components.

    (a) Automatic data collection equipment requirements. The analyzer 
response may be read by automatic data collection (ADC) equipment such 
as computers, data loggers, etc. If ADC equipment is used the following 
is required:
    (1) For dilute grab (``bag'') analysis, the analyzer response must 
be stable at greater than 99 percent of the final reading for the dilute 
exhaust sample bag. A single value representing the average chart 
deflection over a 10-second stabilized period shall be stored.
    (2) For continuous analysis systems, a single value representing the 
average integrated concentration over a cycle shall be stored. 
Alternatively, the ADC may store the individual instantaneous values 
collected during the measurement period.
    (3) The chart deflections or average integrated concentrations 
required in paragraphs (a)(1) and (a)(2) of this section may be stored 
on long-term computer storage devices such as computer tapes, storage 
discs, punch cards, and so forth, or they may be printed in a listing 
for storage. In either case a chart recorder is not required and records 
from a chart recorder, if they exist, need not be stored.
    (4) If ADC equipment is used to interpret analyzer values, the ADC 
equipment is subject to the calibration specifications of the analyzer 
as if the ADC equipment is part of analyzer system.
    (b) Data records from any one or a combination of analyzers may be 
stored as chart recorder records.
    (c) Grab sample analysis. For dilute grab sample analysis perform 
the following sequence:
    (1) Calibrate analyzers using the procedure described in Sec. 
91.326.
    (2) Record the most recent zero and span response as the pre-
analysis value.
    (3) Measure HC, CO, CO2, and NOX background 
concentrations in the sample bag(s) and background sample bag(s) using 
the same flow rates and pressures.
    (4) Good engineering practice dictates that analyzers used for 
continuous analysis should be operated such that the measured 
concentration falls between 15 percent and 100 percent of full scale.
    (5) A post-analysis zero and span check of each range must be 
performed and the values recorded. The number of events that may occur 
between the pre and post checks is not specified. However, the 
difference between pre-analysis zero and span values (recorded in 
paragraph (c)(5) or (c)(6) of this section) versus those recorded for 
the post-analysis check may not exceed the zero drift limit or the span 
drift limit

[[Page 349]]

of 2 percent of full scale chart deflection for any 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 in Sec. 
91.326.
    (2) Leak check portions of the sampling system that operate at 
negative 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 sampling 
system:
    (i) Zero the analyzer using zero air introduced at the analyzer 
port.
    (ii) Flow zero air through the overflow sampling system. Check the 
analyzer response.
    (iii) If the overflow zero response exceeds the analyzer zero 
response by two percent or more of the FID or HFID full-scale 
deflection, 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 for 
continuous analysis should be operated such that the measured 
concentration 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, and NOX in 
a sample bag (for dilute exhaust sampling only, see Sec. 91.422).
    (8) Perform a post-analysis zero and span check for each range used 
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 three 
percent for HC, or two percent for NOX. CO, and 
CO2, of full scale chart deflection, or the test is void. (If 
the HC drift is greater than three percent of full-scale chart 
deflection, hydrocarbon hang-up is likely.)
    (10) Determine background levels of NOX. CO, or 
CO2 (for dilute exhaust sampling only) by the grab (``bag'') 
technique outlined in paragraph (c) of this section.
    (e) Hydrocarbon hang-up. If HC hang-up is indicated, the following 
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 analyzer 
ports.
    (4) Analyze the background air through the entire sample probe 
system.
    (5) If the difference between the readings obtained is two ppm or 
more, 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 this 
section.



Sec. 91.414  Raw gaseous exhaust sampling and analytical system description.

    (a) Schematic drawing. An example of a sampling and analytical 
system which may be used for testing under this subpart is shown in 
Figure 4 in appendix B of this subpart. All components or parts of 
components that are wetted by the sample or corrosive calibration gases 
shall be either chemically cleaned stainless steel or inert material 
(e.g., polytetrafluoroethylene resin). The use of ``gauge savers'' or 
``protectors'' with nonreactive 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 diameter shall not be 
greater than the inside diameter of the sample line + 0.03 cm. The wall 
thickness of the probe shall not be greater than 0.10 cm. The fitting 
that attaches the probe to the exhaust pipe shall be as small as 
practical in order to minimize heat loss from the probe.
    (2) The probe shall have a minimum of three holes. The spacing of 
the radial planes for each hole in the probe must be such that they 
cover approximately equal cross-sectional areas of

[[Page 350]]

the exhaust duct. 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 this subpart). The holes should be sized such that each 
has approximately the same flow. If only three holes are used, they may 
not all be in the same radial plane.
    (3) The exhaust gas probe must be located in a position which yields 
a well mixed, homogeneous sample of the engine exhaust. The probe must 
extend radially through the exhaust duct prior to where the exhaust 
mixes with the cooling water. The cooling water flow may be rerouted if 
necessary to obtain an emission sample provided that the modification 
has no significant effect on the performance or emissions 
characteristics of the engine. The probe must pass through the 
approximate center and must extend across at least 80 percent of the 
diameter of the duct. The exact position of the probe may vary from 
engine family to engine family.
    (c) Sample transfer line. (1) The maximum inside diameter of the 
sample line shall not exceed 1.32 cm.
    (2) If valve V2 in Figure 1 of appendix B of Subpart D of this part 
is used, the sample probe must connect directly to valve V2 in Figure 1 
of appendix B of subpart D of this part. The location of optional valve 
V2 may not be greater than 1.22 m from the exhaust duct.
    (3) The location of optional valve V16 in Figure 1 of appendix B of 
subpart D of this part may not be greater than 61 cm from the sample 
pump. The leakage rate for this section on the pressure side of the 
sample pump may not exceed the leakage rate specification for the vacuum 
side of the pump.
    (d) Venting. All vents including analyzer vents, bypass flow, and 
pressure relief vents of regulators should be vented in such a manner to 
avoid endangering personnel in the immediate area.
    (e) 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.
    (f) Additional components, such as instruments, valves, solenoids, 
pumps, switches, and so forth, may be employed to provide additional 
information and coordinate the functions of the component systems.
    (g) The following requirements must be incorporated in each system 
used for raw testing under this subpart.
    (1) Take the sample for all components with one sample probe and 
split it internally to the different analyzers.
    (2) Heat the sample transport system from the engine exhaust pipe to 
the HC analyzer for the raw gas sampling method as indicated in Figure 1 
in appendix B of subpart D of this part. The NOX analyzer for 
the raw gas sampling method may be heated as indicated in Figure 1 in 
appendix B of subpart D of this part. The HC analyzer and the 
NOX analyzer for the dilute sampling method may be heated as 
indicated in Figure 1 in appendix B of subpart D of this part.



Sec. 91.415  Raw gaseous sampling procedures.

    Fit all heated sampling lines with a heated filter to extract solid 
particles from the flow of gas required for analysis. The sample line 
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 used must 
have a range large enough to accurately measure the air flow over the 
engine operating range during the test. Overall measurement accuracy 
must be 2 percent of full-scale value of the 
measurement device for all modes except the idle mode. For the idle 
mode, the measurement accuracy shall be 5 percent 
or less of the full-scale value. The Administrator must be advised of 
the method used prior to testing.
    (b) When an engine system incorporates devices that affect the air 
flow measurement (such as air bleeds, air injection, pulsed air, and so 
forth) that result in understated exhaust emission results, make 
corrections to the exhaust emission results to account for such effects.

[[Page 351]]



Sec. 91.417  Fuel flow measurement specifications.

    (a) Fuel flow measurement is required only for raw testing but is 
allowed for dilute testing.
    (b) The fuel flow rate measurement instrument must have a minimum 
accuracy of 2 percent of full-scale flow rate for 
each measurement range used.



Sec. 91.418  Data evaluation for gaseous emissions.

    For the evaluation of the gaseous emissions recording, record the 
last two minutes of each mode and determine the average values for HC, 
CO, CO2, and NOX during each mode from the average 
concentration readings determined from the corresponding calibration 
data.



Sec. 91.419  Raw emission sampling calculations.

    (a) Derive the final test results through the steps described in 
this section.
    (b) Air and fuel flow method. If both air and fuel flow mass rates 
are measured, the following equations are used to determine the weighted 
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 the exhaust; 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 the following 
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 the exhaust, 
wet

[[Page 352]]

DCO2 = CO2 percent concentration in the 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 measurements to a 
wet basis. Therefore, wet concentration = dry concentration x 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 on 
NO2 formation for four-stroke gasoline engines; see the 
equation below:
[GRAPHIC] [TIFF OMITTED] TR04OC96.020

Where:

H = specific humidity of the intake air in grams of moisture per 
kilogram 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 when 
fuel flow is selected as the basis for mass emission calculations using 
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 following equation:
[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 the exhaust, 
wet
DCO2 = CO2 percent concentration in the 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 measurements to a 
wet basis. Therefore, wet concentration = dry concentration x K, where K 
is:

[[Page 353]]

[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 on 
NO2 formation for four-stroke gasoline engines; see the 
equation below:
[GRAPHIC] [TIFF OMITTED] TR04OC96.026

Where:

H = specific humidity of the intake air in grams of moisture per 
kilogram of dry air.
    For two-stroke gasoline engines, KH should be set to 1.

    (d) The final reported emission test results must be computed by 
using 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 engine during mode i, [g/
hr].
fi = Weighting factors for each mode according to Sec. 
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 fuel per 
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 to Sec. 
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 directly measure 
the true mass of emissions in engine exhaust without the necessity of 
measuring either fuel flow or intake air flow. This is accomplished by 
diluting the exhaust produced by an engine under test with ambient 
background air and measuring the total diluted exhaust flow 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 control the 
total amount of dilute flow through the system. As the name implies, a 
CVS restricts flow to a known value dependent only on the dilute exhaust 
temperature and pressure.
    (c) For the testing described in this subpart, a CVS must consist 
of: A mixing tunnel into which the engine exhaust and dilutant 
(background) air are dumped; a dilute exhaust flow metering system; a 
dilute exhaust sample port; a background sample port; a dilute exhaust 
sampling system; and a background sampling system.
    (1) Mixing tunnel. The mixing tunnel must be constructed such that 
complete mixing of the engine exhaust and background air is assured 
prior to the sampling probe.
    (2) Exhaust flow metering system. A dilute exhaust flow metering 
system must be used to control the total flow

[[Page 354]]

rate of the dilute engine exhaust as described in Sec. 91.421.
    (3) Exhaust sample port. A dilute exhaust sample port must be 
located in or downstream of the mixing tunnel at a point where complete 
mixing of the engine exhaust and background air is assured.
    (4) Background sample port. A dilute background sample port must be 
located in the stream of background air before it is mixed with the 
engine exhaust. The background probe must draw a representative sample 
of the background air during each sampling mode.
    (5) Exhaust sampling system. The dilute exhaust sampling system 
controls the flow of samples from the mixing tunnel to the analyzer 
system. This could be either a continuous sampling system or grab (bag) 
sampling system. If a critical flow venturi (CFV) is used on the dilute 
exhaust sample probe, this system must assure that the sample CFV is in 
choke flow during testing. If no CFV is used, this system must assure a 
constant volumetric flow rate through the dilute exhaust sample probe or 
must incorporate electronic flow compensation.
    (6) Background sampling system. The background sampling system 
controls the flow of samples from the background air supply to the 
analyzer system. This could be either a continuous sampling system or 
grab (bag) sampling system. This system must assure a constant 
volumetric 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 this 
section is designed to measure the true mass emissions of engine 
exhaust. This system utilizes the Constant volume Sampling (CVS) concept 
(described in Sec. 91.420) of measuring mass emissions of HC, 
NOX. CO, and CO2. Grab sampling for individual 
modes is an acceptable method of dilute testing for all constituents, 
HC, NOX. CO, and CO2. Continuous dilute sampling 
is not required for any of the exhaust constituents, but is allowable 
for all. Heated sampling is not required for any of the constituents, 
but is allowable for HC and NOX. The mass of gaseous 
emissions is determined from the sample concentration and total flow 
over the test period. As an option, the measurement of total fuel mass 
consumed over a cycle may be substituted for the exhaust measurement of 
CO2. General requirements are as follows:
    (1) This sampling system requires the use of a Positive Displacement 
Pump--Constant Volume Sampler (PDP-CVS) system with a heat exchanger, or 
a Critical Flow Venturi--Constant Volume Sampler (CFV-CVS) system with 
CVS sample probes and/or a heat exchanger or electronic flow 
compensation. Figure 2 in appendix B of this subpart is a schematic 
drawing of the PDP-CVS system. Figure 3 in appendix B of this subpart is 
a schematic drawing of the CFV-CVS system.
    (2) The HC analytical system requires:
    (i) Grab sampling (see Sec. 91.420, and Figure 2 or Figure 3 in 
appendix B of this subpart) and analytical capabilities (see Sec. 
91.423, and Figure 4 in appendix B of this subpart), or
    (ii) Continuously integrated measurement of diluted HC meeting the 
minimum requirements and technical specifications contained in paragraph 
(b)(2) of this section.
    (iii) The dilute HC analytical system for marine spark-ignition 
engines does not require a heated flame ionization detector (HFID).
    (iv) If used, the HFID sample must be taken directly from the 
diluted exhaust stream through a heated probe and integrated 
continuously over the test cycle.
    (v) The heated probe must be located in the sampling system far 
enough downstream of the mixing area to ensure a uniform sample 
distribution 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 or Figure 3 in 
appendix B of this subpart) and analytical capabilities (see Sec. 
91.423, and Figure 4 in appendix B of this subpart), or
    (ii) Continuously integrated measurement of diluted CO and 
CO2 meeting

[[Page 355]]

the minimum requirements and technical specifications contained in 
paragraph (b)(4) of this section.
    (4) The NOX analytical system requires:
    (i) Grab sampling (see Sec. 91.420, and Figure 2 or Figure 3 in 
appendix B of this subpart) and analytical capabilities (see Sec. 
91.423, and Figure 4 in appendix B of this subpart), or
    (ii) A continuously integrated measurement of diluted NOX 
meeting the minimum requirements and technical specifications contained 
in paragraph (b)(4) of this section.
    (5) Since various configurations can produce equivalent results, 
exact conformance with these drawings is not required. Additional 
components such as instruments, valves, solenoids, pumps, and switches 
may be used to provide additional information and coordinate the 
functions of the component systems. Other components, such as snubbers, 
which are not needed to maintain accuracy on some systems, may be 
excluded if their exclusion is based upon good engineering judgment.
    (6) Other sampling and/or analytical systems may be used if shown to 
yield equivalent results and if approved in advance by the 
Administrator.
    (b) Component description. The components necessary for exhaust 
sampling must meet the following requirements:
    (1) Exhaust dilution system. The PDP-CVS must conform to all of the 
requirements listed for the exhaust gas PDP-CVS in Sec. 91.420 of this 
chapter. The CFV-CVS must conform to all of the requirements listed for 
the exhaust gas CFV-CVS in Sec. 91.420. In addition, the CVS must 
conform to the following requirements:
    (i) The flow capacity of the CVS must be sufficient to maintain the 
diluted exhaust stream in the dilution system at a temperature of 190 
[deg]C or less at the sampling zone for hydrocarbon measurement and as 
required to prevent condensation at any point in the dilution system. 
Gaseous emission samples may be taken directly from this sampling point.
    (ii) For the CFV-CVS, either a heat exchanger or electronic flow 
compensation is required (see Figure 3 in appendix B of this subpart).
    (iii) For the CFV-CVS when a heat exchanger is used, the gas mixture 
temperature, measured at a point immediately ahead of the critical flow 
venturi, must be within 11 [deg]C of the average 
operating temperature observed during the test with the simultaneous 
requirement that condensation does not occur. The temperature measuring 
system (sensors and readout) must have an accuracy and precision of 
2 [deg]C. For systems utilizing a flow compensator 
to maintain proportional flow, the requirement for maintaining constant 
temperature is not necessary.
    (2) Continuous HC measurement system. (i) The continuous HC sample 
system (as shown in Figure 2 or 3 in appendix B of this subpart) uses an 
``overflow'' zero and span system. In this type of system, excess zero 
or span gas spills out of the probe when zero and span checks of the 
analyzer are made.
    (ii) No other analyzers may draw a sample from the continuous HC 
sample probe, line, or system, unless a common sample pump is used for 
all analyzers and the sample line system design reflects good 
engineering practice.
    (iii) The overflow gas flow rates into the sample line must be at 
least 105 percent of the sample system flow rate.
    (iv) The overflow gases must enter the sample line as close as 
practical to the outside surface of the CVS duct or dilution system.
    (v) The continuous HC sampling system consists of a probe (which for 
a HFID analyzer must raise the sample to the specified temperature) and, 
where used, a sample transfer system (which for a HFID must maintain the 
specified temperature). The HFID continuous hydrocarbon sampling system 
(exclusive of the probe) must:
    (A) Maintain a wall temperature of 190 11 
[deg]C as measured at every separately controlled heated component (that 
is, filters, heated line sections), using permanent thermocouples 
located at each of the separate components.
    (B) Have a wall temperature of 190 11 [deg]C 
over its entire length. The temperature of the system is demonstrated by 
profiling the thermal characteristics of the system where possible at 
initial installation and after any major maintenance performed on the 
system.

[[Page 356]]

The profiling is to be accomplished using the insertion thermocouple 
probing technique. The system temperature must be monitored continuously 
during testing at the locations and temperature described in Sec. 
91.421(b)(2).
    (C) Maintain a gas temperature of 190 11 
[deg]C immediately before the heated filter and HFID. Determine these 
gas temperatures by a temperature sensor located immediately upstream of 
each component.
    (vi) The continuous hydrocarbon sampling probe:
    (A) Is defined as the first 25.4 to 76.2 cm of the continuous 
hydrocarbon sampling system.
    (B) Has a 0.483 cm minimum inside diameter.
    (C) Is installed in the dilution system at a point where the 
dilution air and exhaust are well mixed and provide a homogenous 
mixture.
    (D) Is sufficiently distant (radially) from other probes and the 
system wall so as to be free from the influence of any wakes or eddies.
    (E) For a continuous HFID sample probe, the probe must increase the 
gas stream temperature to 190 11 [deg]C at the 
exit of the probe. Demonstrate the ability of the probe to accomplish 
this using the insertion thermocouple technique at initial installation 
and after any major maintenance. Demonstrate compliance with the 
temperature specification by continuously recording during each test the 
temperature of either the gas stream or the wall of the sample probe at 
its terminus.
    (vii) The response time of the continuous measurement system must be 
taken into account when logging test data.
    (3) Sample mixing. (i) configure the dilution system to ensure a 
well mixed, homogeneous sample prior to the sampling probe(s).
    (ii) Make the temperature of the diluted exhaust stream inside the 
dilution system sufficient to prevent water condensation.
    (iii) Direct the engine exhaust downstream at the point where it is 
introduced into the dilution system.
    (4) Continuously integrated NOX. CO, and CO2 
measurement systems. (i) Sample probe requirements:
    (A) The sample probe for continuously integrated NOX. CO, 
and CO2 must be in the same plane as the continuous HC probe, 
but sufficiently distant (radially) from other probes and the tunnel 
wall so as to be free from the influences of any wakes or eddies.
    (B) The sample probe for continuously integrated NOX. CO, 
and CO2 must be heated and insulated over the entire length, 
to prevent water condensation, to a minimum temperature of 55 [deg]C. 
Sample gas temperature immediately before the first filter in the system 
must be at least 55 [deg]C.
    (ii) Conform to the continuous NOX, CO, or CO2 
sampling and analysis system to the specifications of 40 CFR 1065.145, 
with the following exceptions and revisions:
    (A) Heat the system components requiring heating only to prevent 
water condensation, the minimum component temperature is 55 [deg]C.
    (B) Coordinate analysis system response time with CVS flow 
fluctuations 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 of 40 
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 any range on a 
linear analyzer below 155 ppm.
    (iii) Convert the chart deflections or voltage output of analyzers 
with non-linear calibration curves to concentration values by the 
calibration curve(s) specified in 40 CFR part 1065, subpart D, before 
flow correction (if used) and subsequent integration takes place.

[61 FR 52102, Oct. 4, 1996, as amended at 70 FR 40452, July 13, 2005]



Sec. 91.423  Exhaust gas analytical system; CVS grab sample.

    (a) Schematic drawings. Figure 4 in appendix B of this subpart is a 
schematic drawing of the exhaust gas analytical system used for 
analyzing CVS grab ``bag'' samples from spark-ignition engines. Since 
various configurations can

[[Page 357]]

produce accurate results, exact conformance with the drawing is not 
required. Additional components such as instruments, valves, solenoids, 
pumps and switches may be used to provide additional information and 
coordinate the functions of the component systems. Other components such 
as snubbers, which are not needed to maintain accuracy in some systems, 
may be excluded if their exclusion is based on good engineering 
judgement.
    (b) Major component description. The analytical system, Figure 4 in 
Appendix B of this subpart, consists of a flame ionization detector 
(FID) or a heated flame ionization detector (HFID) for the measurement 
of hydrocarbons, nondispersive infrared analyzers (NDIR) for the 
measurement of carbon monoxide and carbon dioxide, and a 
chemiluminescence detector (CLD) (or heated CLD (HCLD)) for the 
measurement of oxides of nitrogen. The exhaust gas analytical system 
shall conform to the following requirements:
    (1) The CLD (or HCLD) requires that the nitrogen dioxide present in 
the sample be converted to nitric oxide before analysis. Other types of 
analyzers may be used if shown to yield equivalent results and if 
approved in advance by the Administrator.
    (2) If CO instruments are used which are essentially free of 
CO2 and water vapor interference, the use of the conditioning 
column may be deleted. (See Sec. Sec. 91.317 and 91.320.)
    (3) A CO instrument will be considered to be essentially free of 
CO2 and water vapor interference if its response to a mixture 
of three percent CO2 in N2, which has been bubbled 
through water at room temperature, produces an equivalent CO response, 
as measured on the most sensitive CO range, which is less than one 
percent of full scale CO concentration on ranges above 300 ppm full 
scale or less than 3 ppm on ranges below 300 ppm full scale. (See Sec. 
91.317.)
    (c) Alternate analytical systems. Analysis systems meeting the 
specifications and requirements of this subpart for dilute sampling may 
be used upon approval of the Administrator.
    (d) Other analyzers and equipment. Other types of analyzers and 
equipment may be used if shown to yield equivalent results and if 
approved in advance by the Administrator.



Sec. 91.424  Dilute sampling procedure--CVS calibration.

    (a) The CVS is calibrated using an accurate flowmeter and restrictor 
valve. (1) The flowmeter calibration shall be traceable to the National 
Institute for Standards and Testing (NIST), and will serve as the 
reference value (NIST ``true'' value) for the CVS calibration.)
    Note: In no case should an upstream screen or other restriction 
which can affect the flow be used ahead of the flowmeter unless 
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 or American Society of 
Mechanical Engineers (ASME) flow nozzles are considered equivalent if 
traceable to NIST measurements. Other measurement systems may be used if 
shown to be equivalent under the test conditions in this section and 
traceable to NIST measurements.
    (3) Measurements of the various flowmeter parameters are recorded 
and related to flow through the CVS.
    (4) Procedures used by EPA for both PDP-CVS and CFV-CVS are outlined 
below. Other procedures yielding equivalent results may be used if 
approved in advance by the Administrator.
    (b) After the calibration curve has been obtained, verification of 
the entire system may be performed by injecting a known mass of gas into 
the system and comparing the mass indicated by the system to the true 
mass injected. An indicated error does not necessarily mean that the 
calibration is wrong, since other factors can influence the accuracy of 
the system (e.g., analyzer calibration, leaks, or HC hangup). A 
verification procedure is found in paragraph (e) of this section.
    (c) PDP-CVS calibration. (1) The following calibration procedure 
outlines the equipment, the test configuration, and the various 
parameters which must be measured to establish the flow rate of the CVS 
pump.
    (i) All the parameters related to the pump are simultaneously 
measured with the parameters related to a flowmeter which is connected 
in series with the pump.

[[Page 358]]

    (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 value of a specific combination of pump 
parameters.
    (iii) The linear equation which relates the pump flow and the 
correlation function is then determined.
    (iv) In the event that a CVS has a multiple speed drive, a 
calibration for each range used must be performed.
    (2) This calibration procedure is based on the measurement of the 
absolute values of the pump and flowmeter parameters that relate the 
flow rate at each point. Two conditions must be maintained to assure the 
accuracy and integrity of the calibration curve:
    (i) The temperature stability must be maintained during calibration. 
(Flowmeters are sensitive to inlet temperature oscillations; this can 
cause the data points to be scattered. Gradual changes in temperature 
are acceptable as long as they occur over a period of several minutes.)
    (ii) All connections and ducting between the flowmeter and the CVS 
pump must be absolutely void of leakage.
    (3) During an exhaust emission test the measurement of these same 
pump parameters enables the user to calculate the flow rate from the 
calibration equation.
    (4) Connect a system as shown in Figure 5 in appendix B of this 
subpart. Although particular types of equipment are shown, other 
configurations that yield equivalent results may be used if approved in 
advance by the Administrator. For the system indicated, the following 
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 metering venturi  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 NIST
                                                                                          value
Air temperature at CVS pump inlet....  PTI....................  [deg]C.................  1.11 [deg]C
Pressure depression at CVS pump inlet  PPI....................  kPa....................  0.055 kPa
Pressure head at CVS pump outlet.....  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 of 
appendix B of this subpart, set the variable restrictor in the wide open 
position and run the CVS pump for 20 minutes. Record the calibration 
data.
    (6) Reset the restrictor valve to a more restricted condition in an 
increment of pump inlet depression that will yield a minimum of six data 
points for the total calibration. Allow the system to stabilize for 3 
minutes and repeat the data acquisition.
    (7) Data analysis:
    (i) The air flow rate, Qs, at each test point is 
calculated in standard cubic feet per minute 20 [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 pump inlet 
temperature 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 per minute, 
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 359]]

PPI=Pump inlet depression, kPa.

    (iii) The correlation function at each test point is then calculated 
from the calibration data:
[GRAPHIC] [TIFF OMITTED] TR04OC96.030

Where:

XO=correlation function.
[Delta]\p\ = The pressure differential from pump inlet to pump outlet, 
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 the 
calibration 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 on 
each speed used. The calibration curves generated for the ranges will be 
approximately parallel and the intercept values, DO, will increase as 
the pump flow range decreases.
    (9) If the calibration has been performed carefully, the calculated 
values from the equation will be within 0.50 
percent of the measured value of VO. Values of M will vary 
from one pump to another, but values of DO for pumps of the 
same make, model and range should agree within three percent of each other. Calibrations should be 
performed at pump start-up and after major maintenance to assure the 
stability of the pump slip rate. Analysis of mass injection data will 
also reflect pump slip stability.
    (d) CFV-CVS calibration. (1) Calibration of the CFV is based upon 
the 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) of this 
section establishes the value of the calibration coefficient at measured 
values of pressure, temperature and air flow.
    (2) The manufacturer's recommended procedure shall be followed for 
calibrating 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 flow meter......  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 NIST
                                                                                          value
CVS inlet depression.................  PPI....................  kPa....................  0.055 kPa
Pressure head at CVS pump outlet.....  PPO....................  kPa....................  0.055 kPa
Temperature at venturi inlet.........  TV.....................  [deg]C.................  2.22 [deg]C
----------------------------------------------------------------------------------------------------------------

    (4) Set up equipment as shown in Figure 6 in appendix B of this 
subpart and eliminate leaks. (Leaks between the flow measuring devices 
and the critical flow venturi will seriously affect the accuracy of the 
calibration.)
    (5) Set the variable flow restrictor to the open position, start the 
blower, and allow the system to stabilize. Record data from all 
instruments.
    (6) Vary the flow restrictor and make at least eight readings across 
the critical flow range of the venturi.
    (7) Data analysis. The data recorded during the calibration are to 
be used in the following calculations:
    (i) The air flow rate (designated as Qs) at each test 
point is calculated in standard cubic feet per minute from

[[Page 360]]

the flow meter data using the manufacturer's prescribed method.
    (ii) Calculate values of the calibration coefficient for each test 
point:
[GRAPHIC] [TIFF OMITTED] TR04OC96.032

QS=Flow rate in standard cubic meter per minute, at the 
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 unchoked and 
KV decreases. (See Figure 7 in appendix B of this subpart)
    (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 average 
KV, take corrective action.
    (e) CVS system verification. The following ``gravimetric'' technique 
can be used to verify that the CVS and analytical instruments can 
accurately measure a mass of gas that has been injected into the system. 
(Verification can also be accomplished by constant flow metering using 
critical flow orifice devices.)
    (1) Obtain a small cylinder that has been charged with 99.5 percent 
or greater propane or carbon monoxide gas (CAUTION--carbon monoxide is 
poisonous).
    (2) Determine a reference cylinder weight to the nearest 0.01 grams.
    (3) Operate the CVS in the normal manner and release a quantity of 
pure propane into the system during the sampling period (approximately 
five minutes).
    (4) The calculations are performed in the normal way except in the 
case 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 mass 
and then divided by the gravimetric mass to determine the percent 
accuracy of the system.
    (6) Good engineering practice requires that the cause for any 
discrepancy greater than 2 percent must be found 
and corrected.



Sec. 91.425  CVS calibration frequency.

    Calibrate the CVS positive displacement pump or critical flow 
venturi following initial installation, major maintenance or as 
necessary when indicated by the CVS system verification (described in 
Sec. 91.424(e)).



Sec. 91.426  Dilute emission sampling calculations.

    (a) The final reported emission test results must be computed by use 
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 test engine 
during mode i [g/hr].
WFi = Weighting factor for each mode i as defined in Sec. 
91.410(a).
Pi = Gross average power generated during mode i [kW] 
calculated from the following equation (power for the idle mode shall 
always 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. This correction 
factor only affects calculations for NOX and is equal to one 
for all other emissions. KHi is also equal to one for all 
two-stroke engines.

    (b) The mass flow rate (Wi) of an emission for mode i is 
determined from the following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.035

Where:

Qi = Volumetric flow rate of the dilute exhaust through the 
CVS at standard conditions [m\3\/hr at STP].

[[Page 361]]

D = Density of a specific emission (DHC, DCO, 
DCO2, DNOx) in the exhaust [g/m\3\].
DFi = Dilution factor of the dilute exhaust during mode i.
CDi = Concentration of the emission (HC, CO, NOX) 
in the dilute exhaust extracted from the CVS during mode i [ppm].
CBi = Concentration of the emission (HC, CO, NOX) 
in the background sample during mode i [ppm].
STP = Standard temperature and pressure. All volumetric calculations 
made for the equations in this section are to be corrected to a standard 
temperature of 20 [deg]C and 101.3 kPa.

    (c) Densities for emissions that are to be measured for this test 
procedure 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 the 
assumption that the fuel used has a carbon to hydrogen ratio of 1:1.85. 
For other fuels, DHC can be calculated from the following 
formula:
[GRAPHIC] [TIFF OMITTED] TR04OC96.036

Where:

MHC = Molecular weight of the hydrocarbon molecule divided 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 the number 
of carbon atoms in the molecule, MHC can be calculated 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 that NOX 
in entirely in the form of NO2.
    (d) The dilution factor (DF) is the ratio of the volumetric flow 
rate of the background air to that of the raw engine exhaust. The 
following 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 dilute sample 
[ppm].

    (e) The humidity correction factor KH is an adjustment 
made to the measured NOX. This corrects for the sensitivity 
that a spark-ignition engine has to the humidity of its combustion air. 
The following formula is used to determine KH for 
NOX calculations:
[GRAPHIC] [TIFF OMITTED] TR04OC96.039

Where:

H = Absolute humidity of the engine intake air [grams of water per 
kilogram of dry air].

    (f) The absolute humidity of the engine intake air H is calculated 
using the following formula:
[GRAPHIC] [TIFF OMITTED] TR04OC96.040

Where:

Pdew = Saturated vapor pressure at the dew point temperature 
[kPa].
Pb = Barometric pressure [kPa].

    (g) The fuel mass flow rate Fi can be either measured or 
calculated using the following formula:
[GRAPHIC] [TIFF OMITTED] TR04OC96.041

Where:

Mf = Mass of fuel consumed by the engine during the mode [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 sampling period 
[g].

[[Page 362]]

R2 = The fuel carbon weight fraction, which is the mass of 
carbon in fuel per mass of fuel [g/g].

    (i) The grams of carbon measured during the mode GS can 
be calculated from the following equation:
[GRAPHIC] [TIFF OMITTED] TR04OC96.043

Where:

HCmass = mass of hydrocarbon emissions for the mode sampling 
period [g].
COmass = mass of carbon monoxide emissions for the mode 
sampling period [g].
CO2mass = mass of carbon dioxide emissions for the mode 
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 this 
section is to determine the effect of thermal stress on catalyst 
conversion efficiency. The thermal stress is imposed on the test 
catalyst by exposing it to quiescent heated air in an oven. The 
evaluation of the effect of such stress on catalyst performance is based 
on the resultant degradation of the efficiency with which the 
conversions of specific pollutants are promoted. The application of this 
evaluation procedure involves the several steps that are described in 
the following paragraphs.
    (2) The engine manufacturer need not submit catalyst conversion 
efficiency data for pollutants that the catalyst being tested was not 
designed to reduce/oxidize. The engine manufacturer must specify the 
pollutants that the catalyst will be converting and submit catalyst 
conversion efficiency data on only those pollutants.
    (b) Determination of initial conversion efficiency.
    (1) A synthetic exhaust gas mixture having the composition specified 
in Sec. 91.329 is heated to a temperature of 450 5 [deg]C and passed through the new test catalyst or, 
optionally, a test catalyst that has been exposed to temperatures less 
than or equal to 500 [deg]C for less than or equal to two hours, under 
flow conditions that are representative of anticipated in-use 
conditions.
    (2) The concentration of each pollutant of interest, that is, 
hydrocarbons, carbon monoxide, or oxides of nitrogen, in the effluent of 
the catalyst is determined by means of the instrumentation that is 
specified 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 initial 
concentration,
    (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 to 
1000 [deg]C and the temperature of the air in the oven is maintained at 
1000 10 [deg]C for six hours. Optionally, the 
catalyst may instead be placed in an oven having a 90% nitrogen/10% 
water vapor environment that has been pre-heated to at least 850 [deg]C 
and the temperature of the nitrogen/water vapor environment in the oven 
is maintained at 850 [deg]C 10 [deg]C for six 
hours.
    (2) The catalyst is removed from the oven and allowed to cool to 
room temperature.
    (d) Determination of final conversion efficiency. The steps listen 
in paragraph (b) of this section are repeated.
    (e) Determination of conversion efficiency degradation.
    (1) The final conversion efficiency determined in paragraph (c) of 
this section is subtracted from the initial conversion efficiency 
determined 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. The percent 
degradation determined in paragraph (e) of

[[Page 363]]

this section must not be greater than 20 percent.



             Sec. Appendix A to Subpart E of Part 91--Tables

      Table 1--Parameters To Be Measured or Calculated 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 Weighting Factors for Marine Engines
------------------------------------------------------------------------
                                                     Engine
                                         Engine     torque as
                                       speed as a       a
                                       percentage  percentage     Mode
               Mode No.                 of engine  of maximum  weighting
                                          rated     torque at    factor
                                          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 364]]



            Sec. Appendix B to Subpart E of Part 91--Figures
[GRAPHIC] [TIFF OMITTED] TR04OC96.044


[[Page 365]]


[GRAPHIC] [TIFF OMITTED] TR04OC96.045


[[Page 366]]


[GRAPHIC] [TIFF OMITTED] TR04OC96.046


[[Page 367]]


[GRAPHIC] [TIFF OMITTED] TR04OC96.047


[[Page 368]]


[GRAPHIC] [TIFF OMITTED] TR04OC96.048


[[Page 369]]


[GRAPHIC] [TIFF OMITTED] TR04OC96.049


[[Page 370]]


[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 all marine 
spark-ignition engines subject to the provisions of subpart A of this 
part 91.
    (1) This subpart F applies to marine spark-ignition outboard engines 
beginning with model year 1999.
    (2) This subpart F applies to marine spark-ignition personal 
watercraft engines beginning with model year 2000.
    (b) The Administrator may waive the provisions of this subpart for a 
manufacturer or a specific engine family, as

[[Page 371]]

specified in paragraphs (b) (1), (2) and (3) of this section.
    (1) The provisions of this subpart are waived for existing 
technology OB/PWC through model year 2003.
    (2) Upon request by a manufacturer, the Administrator may waive the 
provisions of this subpart for existing technology OB/PWC for a specific 
engine family through model year 2005 if the Administrator determines 
that the engine family will be phased out of production for sale in the 
U.S. by the end of model year 2005. As a condition to receiving such a 
waiver for either model year 2004, 2005 or both, the manufacturer must 
discontinue production of engines for sale in the U.S. according to a 
schedule determined by the Administrator upon granting this waiver. 
Failure to do so by the manufacturer will void ab initio the applicable 
certificate of conformity.
    (3) A manufacturer request under paragraph (b)(2) of this section 
must be in writing and apply to a specific engine family. The request 
must identify the engine family designation, a written rationale 
supporting the FEL choice, the type of information used as a basis for 
the FEL (e.g., previous emission tests, development tests), the specific 
source of the information including when the information was generated, 
the requested schedule for phasing the engine family out of production, 
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 engine family which 
can be described on the basis of gross power, emission control system, 
governed speed, injector size, engine calibration, and other parameters 
as designated by the Administrator.
    Test sample means the collection of engines selected from the 
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 line 
engines from each engine family according to the provisions of this 
subpart.
    (b) Production line engines must be tested using the test procedure 
specified in subpart E of this part that was used in certification 
unless an alternate procedure is approved by the Administrator. Any 
adjustable engine parameter must be set to values or positions that are 
within the range recommended to the ultimate purchaser, unless otherwise 
specified by the Administrator. The Administrator may specify values 
within or without the range recommended 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 of 
the provisions of this subpart must establish, maintain, and retain the 
following adequately organized and indexed records:
    (1) General records. A description of all equipment used to test 
engines in accordance with Sec. 91.503. Subpart D of this part sets 
forth relevant equipment requirements in Sec. Sec. 91.306, 91.308, 
91.309, and 91.313.
    (2) Individual records. These records pertain to each production 
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 engine 
when the test began and ended;
    (iii) The names of all supervisory personnel involved in the conduct 
of the production line test;
    (iv) A record and description of any adjustment, repair, preparation 
or modification performed prior to and/or subsequent to approval by the 
Administrator pursuant to Sec. 91.507(b)(1), giving the date, 
associated time, justification, name(s) of the authorizing personnel, 
and names of all supervisory personnel responsible for the conduct of 
the repair;
    (v) If applicable, the date the engine was shipped from the assembly 
plant,

[[Page 372]]

associated storage facility or port facility, and the date the engine 
was received at the testing facility;
    (vi) A complete record of all emission tests performed pursuant to 
this subpart (except tests performed directly by EPA), including all 
individual worksheets and/or other documentation relating to each test, 
or exact copies thereof, in accordance with the record requirements 
specified in Sec. 91.405.
    (vii) A brief description of any significant events during testing 
not otherwise described under paragraph (a)(2) of this section, 
commencing with the test engine selection process and including such 
extraordinary events as engine damage during shipment.
    (3) The manufacturer must establish, maintain and retain general 
records, pursuant to paragraph (a)(1) of this section, for each test 
cell that can be used to perform emission testing under this subpart.
    (b) The manufacturer must retain all records required to be 
maintained under this subpart for a period of one year after completion 
of all testing required for the engine family in a model year. Records 
may be retained as hard copy (i.e., on paper) or reduced to 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 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 or actual production for each engine 
configuration within each engine family for which certification has been 
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 discretion to 
require a manufacturer to establish, maintain, retain or submit to EPA 
information not specified by this section.
    (e) All reports, submissions, notifications, and requests for 
approval made under this subpart must be addressed to: Manager, Engine 
Compliance Programs Group 6403J, U.S. Environmental Protection Agency, 
1200 Pennsylvania Ave., NW., Washington, DC 20460.
    (f) The manufacturer must electronically submit the results of its 
production line testing using an EPA information format. The 
Administrator may exempt manufacturers from this requirement upon 
written request with supporting justification.



Sec. 91.505  Right of entry and access.

    (a) To allow the Administrator to determine whether a manufacturer 
is complying with the provisions of this or other subparts of this part, 
one or more EPA enforcement officers may enter during operating hours 
and upon presentation of credentials any of the following places:
    (1) Any facility, including ports of entry, where any engine to be 
introduced into commerce or any emission-related component is 
manufactured, assembled, or stored;
    (2) Any facility where any test conducted pursuant to this or any 
other subpart or any procedure or activity 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 under Sec. 91.504 or 
other document relating to this subpart or any other subpart of this 
part is located.
    (b) Upon admission to any facility referred to in paragraph (a) of 
this section, EPA enforcement officers are authorized to perform the 
following inspection-related activities:
    (1) To inspect and monitor any aspect of engine manufacture, 
assembly, storage, testing and other procedures, and to inspect and 
monitor the facilities in which these procedures are conducted;
    (2) To inspect and monitor any aspect of engine test procedures or 
activities, including test engine selection, preparation and service 
accumulation, emission test cycles, and maintenance and verification of 
test equipment calibration;
    (3) To inspect and make copies of any records or documents related 
to the assembly, storage, selection, and testing of an engine; and
    (4) To inspect and photograph any part or aspect of any engine and 
any

[[Page 373]]

component used in the assembly thereof that is reasonably related to the 
purpose of the entry.
    (c) EPA enforcement officers are authorized to obtain reasonable 
assistance without cost from those in charge of a facility to help the 
officers perform any function listed in this subpart and they are 
authorized to request the manufacturer to make arrangements with those 
in charge of a facility operated for the manufacturer's benefit to 
furnish reasonable assistance without cost to EPA.
    (1) Reasonable assistance includes, but is not limited to, clerical, 
copying, interpretation and translation services; the making available 
on an EPA enforcement officer's request of personnel of the facility 
being inspected during their working hours to inform the EPA enforcement 
officer of how the facility operates and to answer the officer's 
questions; and the performance on request of emission tests on any 
engine which is being, has been, or will be used for production line or 
other testing.
    (2) By written request, signed by the Assistant Administrator for 
Air and Radiation, and served on the manufacturer, a manufacturer may be 
compelled to cause the personal appearance of any employee at such a 
facility before an EPA enforcement officer. Any such employee who has 
been instructed by the manufacturer to appear will be entitled to be 
accompanied, represented, and advised by counsel.
    (d) EPA enforcement officers are authorized to seek a warrant or 
court order authorizing the EPA enforcement officers to conduct the 
activities authorized in this section, as appropriate, to execute the 
functions specified in this section. EPA enforcement officers may 
proceed ex parte to obtain a warrant or court order whether or not the 
EPA enforcement officers first attempted to seek permission from the 
manufacturer or the party in charge of the facility(ies) in question to 
conduct the activities authorized in this section.
    (e) A manufacturer must permit an EPA enforcement officer(s) who 
presents a warrant or court order to conduct the activities authorized 
in this section as described in the warrant or court order. The 
manufacturer must also cause those in charge of its facility or a 
facility operated for its benefit to permit entry and access as 
authorized in this section pursuant to a warrant or court order whether 
or not the manufacturer controls the facility. In the absence of a 
warrant or court order, an EPA enforcement officer(s) may conduct the 
activities authorized in this section only upon the consent of the 
manufacturer 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 for any 
person to refuse to permit an EPA enforcement officer(s) to conduct 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 testing 
and manufacturing facilities in jurisdictions where local law does not 
prohibit an EPA enforcement officer(s) from conducting the entry and 
access activities specified in this section. EPA will not attempt to 
make any inspections which it has been informed local foreign law 
prohibits.



Sec. 91.506  Engine sample selection.

    (a) At the start of each model year, the marine SI engine 
manufacturer will begin to randomly select engines from each engine 
family for production line testing at a rate of one percent. Each engine 
will be selected from the end of the assembly line.
    (1) For newly certified engine families: After two engines are 
tested, the manufacturer will calculate the required sample size for the 
model year according to the Sample Size Equation in paragraph (b) of 
this section.
    (2) For carry-over engine families: After one engine is tested, the 
manufacturer will combine the test with the last test result from the 
previous model year and then calculate the required sample size for the 
model year according to the Sample Size Equation in paragraph (b) of 
this section.
    (b)(1) Manufacturers will calculate the required sample size for the 
model year for each engine family using the Sample Size Equation below. 
N is calculated from each test result. The number N indicates the number 
of tests

[[Page 374]]

required for the model year for an engine family. N, is recalculated 
after each test. Test results used to calculate the variables in the 
Sample Size Equation must be final deteriorated 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 the actual 
number of tests completed, n, as specified in the table in paragraph 
(b)(2) of this section. It defines one-tail, 95 percent confidence 
intervals.
[sigma]=actual test sample standard deviation calculated from the 
following 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 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  [infin]          1.645
------------------------------------------------------------------------

    (3) A manufacturer must distribute the testing of the remaining 
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, is 
recalculated using updated sample means, sample standard deviations and 
the appropriate 95% confidence coefficient.
    (5) A manufacturer must continue testing and updating each engine 
family's sample size calculations according to paragraphs (b)(1) through 
(b)(4) of this section until a decision is made to stop testing as 
described in paragraph (b)(6) of this section or a noncompliance 
decision is made pursuant to Sec. 91.510(b).
    (6) If, at any time throughout the model year, the calculated 
required sample size, N, for an engine family is less than or equal to 
the actual sample size, n, and the sample mean, x, for HC+NOX 
is less than or equal to the FEL, the manufacturer may 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 must 
continue testing that 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 year or 
one percent of projected annual production for that engine family for 
that model year.
    (9) Manufacturers may elect to test additional randomly chosen 
engines. All additional randomly chosen engines tested in accordance 
with the testing procedures specified in Sec. 91.507 must be included 
in the Sample Size and Cumulative Sum equation calculations as defined 
in paragraph (b)(1) of this section and Sec. 91.508(a), respectively.
    (c) The manufacturer must produce and assemble the test engines 
using its normal production and assembly process for engines to be 
distributed into commerce.
    (d) No quality control, testing, or assembly procedures will be used 
on any test engine or any portion thereof, including parts and 
subassemblies, that have not been or will not be used during the 
production and assembly of all other engines of that family, unless the 
Administrator approves the modification in production or assembly 
procedures.



Sec. 91.507  Test procedures.

    (a)(1) For marine SI engines subject to the provisions of this 
subpart, the prescribed test procedures are specified in subpart E of 
this part.
    (2) The Administrator may, on the basis of a written application by 
a

[[Page 375]]

manufacturer, prescribe test procedures other than those specified in 
paragraph (a)(1) of this section for any marine engine he or she 
determines is not susceptible to satisfactory testing using procedures 
specified in paragraph (a)(1) of this section.
    (b)(1) The manufacturer may not adjust, repair, prepare, or modify 
any test engine and may not perform any emission test on any test engine 
unless this adjustment, repair, preparation, modification and/or test is 
documented in the manufacturer's engine assembly and inspection 
procedures and is actually performed by the manufacturer or unless this 
adjustment, repair, preparation, modification and/or test is required or 
permitted under this subpart or is approved in advance by the 
Administrator.
    (2) The Administrator may adjust or require to be adjusted any 
engine parameter which the Administrator has determined to be subject to 
adjustment for certification, production line testing and Selective 
Enforcement Audit testing, to any setting within the physically 
adjustable range of that parameter, as determined by the Administrator, 
prior to the performance of any test. However, if the idle speed 
parameter is one which the Administrator has determined to be subject to 
adjustment, the Administrator may not adjust it or require that it be 
adjusted to any setting which causes a lower engine idle speed than 
would have been possible within the physically adjustable range of the 
idle speed parameter if the manufacturer had accumulated 12 hours of 
service on the engine under paragraph (c) of this section, all other 
parameters being identically adjusted for the purpose of the comparison. 
The manufacturer may be requested to supply information necessary to 
establish an alternate minimum idle speed. The Administrator, in making 
or specifying these adjustments, may consider the effect of the 
deviation from the manufacturer's recommended setting on emission 
performance characteristics as well as the likelihood that similar 
settings will occur on in-use engines. In determining likelihood, the 
Administrator may consider factors such as, but not limited to, the 
effect of the adjustment on engine performance characteristics and 
information from similar in-use engines.
    (c) Service accumulation. (1) Prior to performing exhaust emission 
production line testing, the manufacturer may accumulate on each test 
engine a number of hours of service equal to the greater of 12 hours or 
the number of hours the manufacturer accumulated during certification on 
the emission data engine for each engine family.
    (2) Service accumulation must be performed in a manner using good 
engineering judgment to obtain emission results representative of 
production line engines.
    (d) The manufacturer may not perform any maintenance on test engines 
after selection for testing.
    (e) If an engine is shipped to a remote facility for production line 
testing, and an adjustment or repair is necessary because of shipment, 
the engine manufacturer must perform the necessary adjustment or repair 
only after the initial test of the engine, except in cases where the 
Administrator has determined that the test would be impossible or unsafe 
to perform or would permanently damage the engine. Engine manufacturers 
must report to the Administrator, in the quarterly report required by 
Sec. 91.509(e), all adjustments or repairs performed on test engines 
prior to each test.
    (f) If an engine cannot complete the service accumulation or an 
emission test because of a malfunction, the manufacturer may request 
that the Administrator authorize either the repair of that engine or its 
deletion from the test sequence.
    (g) Testing. A manufacturer must test engines with the test 
procedure specified in subpart E of this part to demonstrate compliance 
with the applicable FEL. If alternate procedures were used in 
certification, then those alternate procedures must be used in 
production line testing.
    (h) Retesting. (1) If an engine manufacturer reasonably determines 
that an emission test of an engine is invalid, the engine may be 
retested. Emission results from all tests must be reported to EPA. The 
engine manufacturer must also include a detailed explanation of the 
reasons for invalidating any test in the quarterly report required in

[[Page 376]]

Sec. 91.509(e). In the event a retest is performed, a request may be 
made to the Administrator, within ten days of the end of the production 
quarter, for permission to substitute the after-repair test results for 
the original test results. The Administrator will either affirm or deny 
the request by the engine manufacturer within ten working days from 
receipt of the request.



Sec. 91.508  Cumulative Sum (CumSum) procedure.

    (a) Manufacturers must construct the following CumSum Equation for 
HC+NOX for each engine family. Test results used to calculate 
the variables in the CumSum Equation must be final deteriorated 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 to any testing, 
the CumSum statistic = 0 (i.e. C0 = 0)
Xi = The current emission test result for an individual 
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 two consecutive 
tests, before the engine family may be determined to be in noncompliance 
for purposes of Sec. 91.510.

H = The Action Limit. It is 5.0 x [sigma], and is a function of the 
standard deviation, [sigma].
[sigma] = is the sample standard deviation and is recalculated after 
each test.

    (b) After each engine is tested, the CumSum statistic shall be 
promptly updated according to the CumSum Equation in paragraph (a) of 
this section.
    (c)(1) If, at any time during the model year, a manufacturer amends 
the application for certification for an engine family as specified in 
paragraph (a) of Sec. 91.122 by performing an engine family 
modification (i.e. a change such as a running change involving a 
physical modification to an engine, a change in specification or 
setting, the addition of a new configuration, or the use of a different 
deterioration factor) with no changes to the FEL, all previous sample 
size and CumSum statistic calculations for the model year will remain 
unchanged.
    (2) If, at any time during the model year, a manufacturer amends the 
application for certification for an engine family as specified in 
paragraph (a) of Sec. 91.122 by modifying its FEL as a result of an 
engine family modification, the manufacturer must continue its 
calculations by inserting the new FEL into the sample size equation as 
specified in Sec. 91.506(b)(1) and into the CumSum equation in 
paragraph (a) of this section. All previous calculations remain 
unchanged. If the sample size calculation indicates that additional 
tests are required, then those tests must be performed. The CumSum 
statistic recalculation must not indicate that the family has exceeded 
the action limit for two consecutive tests. The manufacturer's final 
credit report as required by Sec. 91.210 must break out the credits 
that result from each FEL and corresponding CumSum analysis for each FEL 
set.
    (3) If, at any time during the model year, a manufacturer amends the 
application for certification for an engine family as specified in 
paragraph (a) of Sec. 91.122 by modifying its FEL without performing an 
engine modification, all previous sample size and CumSum statistic 
calculations for the model year must be recalculated using the new FEL. 
If the sample size calculation indicates that additional tests are 
required, then those tests must be performed. The CumSum statistic 
recalculation must not indicate that the family has exceeded the action 
limit for two consecutive tests.
    (4) If, at any time after the end of the model year but prior to the 
manufacturer's final credit report submittal as specified in Sec. 
91.210, a manufacturer changes an FEL for an entire family, or for an 
affected part of the year's production, as specified in paragraph (a) of 
Sec. 91.122, in cases where there were one or more mid-year engine 
family modifications, all previous sample size and CumSum statistic 
calculations for the model year, or part of the model year affected by 
an engine family change, must be recalculated using the new FEL. The 
sample size equation must not indicate a larger number of

[[Page 377]]

tests than were appropriately performed using the previous FEL and the 
CumSum statistic recalculation must not exceed the action limit in two 
consecutive tests. The manufacturer's final credit report as required by 
Sec. 91.210 must break out the credits that result from each FEL 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 applicable 
test procedure specified in paragraph (a) of Sec. 91.507. The 
manufacturer rounds these results, in accordance with ASTM E29-93a, to 
the number of decimal places contained in the applicable emission 
standard expressed to one additional significant figure. (ASTM E29-93a 
has been incorporated by reference. See Sec. 91.6.)
    (b) Final test results are calculated by summing the initial test 
results derived in paragraph (a) of this section for each test engine, 
dividing by the number of tests conducted on the engine, and rounding in 
accordance with ASTM E29-93a to the same number of decimal places 
contained in the applicable standard expressed to one additional 
significant figure.
    (c) The final deteriorated test results for each test engine are 
calculated by applying the appropriate deterioration factors, derived in 
the certification process for the engine family, to the final test 
results, and rounding in accordance with ASTM E29-93a to the same number 
of decimal places contained in the applicable standard expressed to one 
additional significant figure.
    (d) If, at any time during the model year, the CumSum statistic 
exceeds the applicable action limit, H, in two consecutive tests, the 
engine family may be determined to be in noncompliance and the 
manufacturer must notify EPA within two working days of such exceedance 
by the CumSum statistic.
    (e) Within 30 calendar days of the end of each quarter, each engine 
manufacturer must submit to the Administrator a report which includes 
the following information:
    (1) The location and description of the manufacturer's or other's 
exhaust emission test facilities which were utilized to conduct testing 
reported pursuant to this section;
    (2) Total production and sample sizes, N and n, for each engine 
family;
    (3) The FEL against which each engine family was tested;
    (4) A description of the process to obtain engines on a random 
basis;
    (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 to 
testing;
    (ii) Location where service accumulation was conducted and 
description of accumulation procedure and schedule;
    (iii) Test number, date, test procedure used, initial test results 
before and after rounding, and final test results for all exhaust 
emission tests, whether valid or invalid, and the reason for 
invalidation, if applicable;
    (iv) A complete description of any adjustment, modification, repair, 
preparation, maintenance, and/or testing which was performed on the test 
engine, was not reported pursuant to any other paragraph of this 
subpart, and will not be performed on all other production engines;
    (v) A CumSum analysis, as required in Sec. 91.508, of the 
production line test results for each engine family;
    (vi) Any other information the Administrator may request relevant to 
the determination whether the new engines being manufactured by the 
manufacturer do in fact conform with the regulations with respect to 
which 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 as required 
by Sec. 91.511(g);
    (8) The date of the end of the engine manufacturer's model year 
production for each engine family; and
    (9) The following signed statement and endorsement by an authorized 
representative of the manufacturer:


[[Page 378]]


    This report is submitted pursuant to sections 213 and 208 of the 
Clean Air Act. This production line testing program was conducted in 
complete conformance with all applicable regulations under 40 CFR part 
91 et seq. No emission-related changes to production processes or 
quality control procedures for the engine family tested have been made 
during this production line testing program that affect engines from the 
production line. All data and information reported herein is, to the 
best of (Company Name) knowledge, true and accurate. I am aware of the 
penalties associated with violations of the Clean Air Act and the 
regulations thereunder. (Authorized Company Representative.)



Sec. 91.510  Compliance with criteria for production line testing.

    (a) A failed engine is one whose final deteriorated test results 
pursuant to Sec. 91.509(c), for HC + NOX exceeds the 
applicable Family Emission Limit (FEL).
    (b) An engine family may be determined to be in noncompliance, if at 
any time throughout the model year, the CumSum statistic, Ci, 
for HC+NOX. is greater than the action limit, H, for two 
consecutive tests.



Sec. 91.511  Suspension and revocation of certificates of conformity.

    (a) The certificate of conformity is automatically suspended with 
respect to any engine failing pursuant to paragraph (a) of Sec. 91.510 
effective from the time that testing of that engine is completed.
    (b) The Administrator may suspend the certificate of conformity for 
an engine family which is determined to be in noncompliance pursuant to 
Sec. 90.510(b). This suspension will not occur before fifteen days 
after the engine family is determined to be in noncompliance.
    (c) If the results of testing pursuant to these regulations indicate 
that engines of a particular family produced at one plant of a 
manufacturer do not conform to the regulations with respect to which the 
certificate of conformity was issued, the Administrator may suspend the 
certificate of conformity with respect to that family for engines 
manufactured by the manufacturer at all other plants.
    (d) Notwithstanding the fact that engines described in the 
application for certification may be covered by a certificate of 
conformity, the Administrator may suspend such certificate immediately 
in whole or in part if the Administrator finds any one of the following 
infractions to be substantial:
    (1) The manufacturer refuses to comply with any of the requirements 
of this subpart.
    (2) The manufacturer submits false or incomplete information in any 
report or information provided to the Administrator under this subpart.
    (3) The manufacturer renders inaccurate any test data submitted 
under this subpart.
    (4) An EPA enforcement officer is denied the opportunity to conduct 
activities authorized in this subpart and a warrant or court order is 
presented to the manufacturer or the party in charge of the facility in 
question.
    (5) An EPA enforcement officer is unable to conduct activities 
authorized in Sec. 91.505 because a manufacturer has located its 
facility in a foreign jurisdiction where local law prohibits those 
activities.
    (e) The Administrator shall notify the manufacturer in writing of 
any suspension or revocation of a certificate of conformity in whole or 
in part. A suspension or revocation is effective upon receipt of the 
notification or fifteen days from the time an engine family is 
determined to be in noncompliance pursuant to Sec. 91.510(b), whichever 
is later, except that the certificate is immediately suspended with 
respect to any failed engines as provided for in paragraph (a) of this 
section.
    (f) The Administrator may revoke a certificate of conformity for an 
engine family after the certificate has been suspended pursuant to 
paragraph (b) or (c) of this section if the proposed remedy for the 
nonconformity, as reported by the manufacturer to the Administrator, is 
one requiring a design change or changes to the engine and/or emission 
control system as described in the application for certification of the 
affected engine family.
    (g) Once a certificate has been suspended for a failed engine, as 
provided for in paragraph (a) of this section, the manufacturer must 
take the following actions before the certificate is reinstated for that 
failed engine:
    (1) Remedy the nonconformity;

[[Page 379]]

    (2) Demonstrate that the engine conforms to the Family Emission 
Limit by retesting the engine in accordance with these regulations; and
    (3) Submit a written report to the Administrator, after successful 
completion of testing on the failed engine, which contains a description 
of the remedy and test results for each engine in addition to other 
information that may be required by this part.
    (h) Once a certificate for a failed engine family has been suspended 
pursuant to paragraph (b), (c) or (d) of this section, the manufacturer 
must take the following actions before the Administrator will consider 
reinstating the certificate:
    (1) Submit a written report to the Administrator which identifies 
the reason for the noncompliance of the engines, describes the proposed 
remedy, including a description of any proposed quality control and/or 
quality assurance measures to be taken by the manufacturer to prevent 
future occurrences of the problem, and states the date on which the 
remedies will be implemented.
    (2) Demonstrate that the engine family for which the certificate of 
conformity has been suspended does in fact comply with the regulations 
of this part by testing as many engines as needed so that the CumSum 
statistic, as calculated in Sec. 91.508(a), falls below the action 
limit. Such testing must comply with the provisions of this part. If the 
manufacturer elects to continue testing individual engines after 
suspension of a certificate, the certificate is reinstated for any 
engine actually determined to be in conformance with the Family Emission 
Limits through testing in accordance with the applicable test 
procedures, provided that the Administrator has not revoked the 
certificate pursuant to paragraph (f) of this section.
    (i) Once the certificate has been revoked for an engine family, if 
the manufacturer desires to continue introduction into commerce of a 
modified version of that family, the following actions must be taken 
before the Administrator may issue a certificate for that modified 
family:
    (1) If the Administrator determines that the proposed change(s) in 
engine design may have an effect on emission performance deterioration, 
the Administrator shall notify the manufacturer, within five working 
days after receipt of the report in paragraph (h)(1) of this section, 
whether subsequent testing under this subpart will be sufficient to 
evaluate the proposed change or changes or whether additional testing 
will be required; and
    (2) After implementing the change or changes intended to remedy the 
nonconformity, the manufacturer must demonstrate that the modified 
engine family does in fact conform with the regulations of this part by 
testing as many engines as needed from the modified engine family so 
that the CumSum statistic, as calculated in Sec. 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 new certificate, as the case may be, to include 
that family. As long as the CumSum statistic remains above the action 
limit, the revocation remains in effect.
    (j) At any time subsequent to a suspension of a certificate of 
conformity for a test engine pursuant to paragraph (a) of this section, 
but not later than 15 days (or such other period as may be allowed by 
the Administrator) after notification of the Administrator's decision to 
suspend or revoke a certificate of conformity in whole or in part 
pursuant to paragraphs (b), (c), or (f) of this section, a manufacturer 
may request a hearing as to whether the tests have been properly 
conducted or any sampling methods have been 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 been 
offered an opportunity for a hearing conducted in accordance with 
Sec. Sec. 91.512, 91.513, and 91.514 and
    (2) Need not apply to engines no longer in the possession of the 
manufacturer.
    (l) After the Administrator suspends or revokes a certificate of 
conformity pursuant to this section and prior to the commencement of a 
hearing under

[[Page 380]]

Sec. 91.512, if the manufacturer demonstrates to the Administrator's 
satisfaction that the decision to suspend 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 engines while 
conducting subsequent testing of the noncomplying family, a manufacturer 
may request that the Administrator conditionally reinstate the 
certificate for that family. The Administrator may reinstate the 
certificate subject to the following condition: the manufacturer must 
commit to recall all engines of that family produced from the time the 
certificate is conditionally reinstated if the CumSum statistic does not 
fall below the action limit and must commit to remedy any nonconformity 
at no expense to the owner.



Sec. 91.512  Request for public hearing.

    (a) If the manufacturer disagrees with the Administrator's decision 
to suspend or revoke a certificate or disputes the basis for an 
automatic suspension pursuant to Sec. 91.511(a), the manufacturer may 
request a public hearing.
    (b) The manufacturer's request shall be filed with the Administrator 
not later than 15 days after the Administrator's notification of his or 
her decision to suspend or revoke, unless otherwise specified by the 
Administrator. The manufacturer shall simultaneously serve two copies of 
this request upon the Manager of the Engine Compliance Programs Group 
and file two copies with the Hearing Clerk for the Agency. Failure of 
the manufacturer to request a hearing within the time provided 
constitutes a waiver of the right to a hearing. Subsequent to the 
expiration of the period for requesting a hearing as of right, the 
Administrator may, in his or her discretion and for good cause shown, 
grant the manufacturer a hearing to contest the suspension or 
revocation.
    (c) A manufacturer shall include in the request for a public 
hearing:
    (1) A statement as to which engine configuration(s) within a family 
is to be the subject of the hearing;
    (2) A concise statement of the issues to be raised by the 
manufacturer at the hearing, except that in the case of the hearing 
requested under Sec. 91.511(j), the hearing is restricted to the 
following issues:
    (i) Whether tests have been properly conducted (specifically, 
whether the tests were conducted in accordance with applicable 
regulations under this part and whether test equipment was properly 
calibrated and functioning);
    (ii) Whether sampling plans and statistical analyses have been 
properly applied (specifically, whether sampling procedures and 
statistical analyses specified in this subpart were followed and whether 
there exists a basis for distinguishing engines produced at plants other 
than the one from which engines were selected for testing which would 
invalidate the Administrator's decision under Sec. 91.511(c));
    (3) A statement specifying reasons why the manufacturer believes it 
will prevail on the merits of each of the issues raised; and
    (4) A summary of the evidence which supports the manufacturer's 
position on each of the issues raised.
    (d) A copy of all requests for public hearings will be kept on file 
in the Office of the Hearing Clerk and will be made available to the 
public during Agency business hours.



Sec. 91.513  Administrative procedures for public hearing.

    (a) The Presiding Officer shall be an Administrative Law Judge 
appointed pursuant to 5 U.S.C. 3105 (see also 5 CFR part 930 as 
amended).
    (b) The Judicial Officer shall be an officer or employee of the 
Agency appointed as a Judicial Officer by the Administrator, pursuant to 
this section, who shall meet the qualifications and perform functions as 
follows:
    (1) Qualifications. A Judicial Officer may be a permanent or 
temporary employee of the Agency who performs other duties for the 
Agency. The Judicial Officer shall not be employed by the Office of 
Enforcement and Compliance Assurance or have any connection with the 
preparation or presentation of evidence for a hearing held pursuant to 
this subpart. The Judicial Officer shall be a graduate of an accredited 
law school and a member in good standing

[[Page 381]]

of a recognized Bar Association of any state or the District of 
Columbia.
    (2) Functions. The Administrator may consult with the Judicial 
Officer or delegate all or part of the Administrator's authority to act 
in a given case under this section to a Judicial Officer, provided that 
this delegation does not preclude the Judicial Officer from referring 
any motion or case to the Administrator when the Judicial Officer 
determines such referral to be appropriate.
    (c) For the purposes of this section, one or more Judicial Officers 
may be designated by the Administrator. As work requires, a Judicial 
Officer may be designated to act for the purposes of a particular case.
    (d) Summary decision. (1) In the case of a hearing requested under 
Sec. 91.511(j), when it clearly appears from the data and other 
information contained in the request for a hearing that no genuine and 
substantial question of fact or law exists with respect to the issues 
specified in Sec. 91.512(c)(2), the Administrator may enter an order 
denying the request for a hearing and reaffirming the original decision 
to suspend or revoke a certificate of conformity.
    (2) In the case of a hearing requested under Sec. 91.512 to 
challenge a suspension of a certificate of conformity for the reason(s) 
specified in Sec. 91.511(d), when it clearly appears from the data and 
other information contained in the request for the hearing that no 
genuine and substantial question of fact or law exists with respect to 
the issue of whether the refusal to comply with this subpart was caused 
by conditions and circumstances outside the control of the manufacturer, 
the Administrator may enter an order denying the request for a hearing 
and suspending the certificate of conformity.
    (3) Any order issued under paragraph (d)(1) or (d)(2) of this 
section has the force and effect of a final decision of the 
Administrator, as issued pursuant to Sec. 91.515.
    (4) If the Administrator determines that a genuine and substantial 
question of fact or law does exist with respect to any of the issues 
referred to in paragraphs (d)(1) and (d)(2) of this section, the 
Administrator shall grant the request for a hearing and publish a notice 
of public hearing in the Federal Register or by such other means as the 
Administrator finds appropriate to provide notice to the public.
    (e) Filing and service. (1) An original and two copies of all 
documents or papers required or permitted to be filed pursuant to this 
section and Sec. 91.512(c) must be filed with the Hearing Clerk of the 
Agency. Filing is considered timely if mailed, as determined by the 
postmark, to the Hearing Clerk within the time allowed by this section 
and Sec. 91.512(b). If filing is to be accomplished by mailing, the 
documents must be sent to the address set 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 in 
written form. Copies of written testimony will be served upon all 
parties as soon as practicable prior to the start of the hearing. A 
certificate of service will be provided on or accompany each document or 
paper filed with the Hearing Clerk. Documents to be served upon the 
Manager of the Engine Compliance Programs Group must be sent by 
registered mail to: Manager, Engine Compliance Programs Group 6403-J, 
U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460. Service by registered mail is complete upon 
mailing.
    (f) Computation of time. (1) In computing any period of time 
prescribed or allowed by this section, except as otherwise provided, the 
day of the act or event from which the designated period of time begins 
to run is not included. Saturdays, Sundays, and federal legal holidays 
are included in computing the period allowed for the filing of any 
document or paper, except that when the period expires on a Saturday, 
Sunday, or federal legal holiday, the period is extended to include the 
next following business day.
    (2) A prescribed period of time within which a party is required or 
permitted to do an act is computed from the time of service, except that 
when service is accomplished by mail, three days will be added to the 
prescribed period.
    (g) Consolidation. The Administrator or the Presiding Officer in his 
or her discretion may consolidate two or more proceedings to be held 
under this

[[Page 382]]

section for the purpose of resolving one or more issues whenever it 
appears that consolidation will expedite or simplify consideration of 
these issues. Consolidation does not affect the right of any party to 
raise issues that could have been raised if consolidation had not 
occurred.
    (h) Hearing date. To the extent possible hearings under Sec. 91.512 
will be scheduled to commence within 14 days of receipt 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. 91.512 regarding suspension, 
revocation, or voiding of a certificate of conformity.



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 to Sec. 91.514.



Sec. 91.516  Treatment of confidential information.

    Except for information required by Sec. 91.509(e)(2) and Sec. 
91.509 (e)(6)(vi), information submitted to EPA pursuant to Sec. 
91.509(e) shall be made available to the public upon request by EPA 
notwithstanding any claim of confidentiality made by the submitter. The 
provisions for treatment of confidential information described in Sec. 
91.7 apply to the information required by Sec. 91.509(e)(2) and all 
other information 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 SI 
engines 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 to 
this subpart. The following definitions also apply to this subpart.
    Acceptable quality level (AQL) means the maximum percentage of 
failing engines that can be considered a satisfactory process average 
for sampling inspections.
    Inspection criteria means the pass and fail numbers associated with 
a particular sampling plan.



Sec. 91.603  Applicability of part 91, subpart F.

    (a) For purposes of selective enforcement audits conducted under 
this subpart, marine SI engines subject to provisions of subpart B of 
this part are subject to regulations specified in subpart F of this 
part, 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 ``sample sizes, 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 all engines 
pursuant to a test order.''
    (8) The introductory text of Sec. 91.509(e)(9) does not apply. The 
following text applies:
    The following signed statement and endorsement by an authorized 
representative of the manufacturer:

    This report is submitted pursuant to Sections 213 and 208 of the 
Clean Air Act. This Selective Enforcement Audit was conducted in 
complete conformance with all applicable regulations under 40 CFR Part 
91 et seq and the conditions of the test order. No emission-related 
changes to production processes or quality control procedures for the 
engine family tested have been made between receipt of the test order 
and conclusion of the audit. All data and information reported herein 
is, to the best of (Company Name) knowledge, true and accurate. I am 
aware of the penalties associated with violations of the Clean Air Act 
and the regulations thereunder. (Authorized Company Representative.)

    (9) Section 91.510 does not apply. See Sec. 91.608.

[[Page 383]]



Sec. 91.604  Test orders.

    (a) A test order addressed to the manufacturer is required for any 
testing under this subpart.
    (b) The test order is signed by the Assistant Administrator for Air 
and Radiation or his or her designee. The test order must be delivered 
in person by an EPA enforcement officer or EPA authorized representative 
to a company representative or sent by registered mail, return receipt 
requested, to the manufacturer's representative who signed the 
application for certification submitted by the manufacturer, pursuant to 
the requirements of the applicable section of subpart B of this part. 
Upon receipt of a test order, the manufacturer must comply with all of 
the provisions of this subpart and instructions in the test order.
    (c) Information included in test order. (1) The test order will 
specify the engine family to be selected for testing, the manufacturer's 
engine assembly plant or associated storage facility or port facility 
(for imported engines) from which the engines must be selected, the time 
and location at which engines must be selected, and the procedure by 
which engines of the specified family must be selected. The test order 
may specify the configuration to be audited and/or the number of engines 
to be selected per day. Engine manufacturers are required to select a 
minimum of four engines per day unless an alternate selection procedure 
is approved pursuant to Sec. 91.606(a), or unless total production of 
the specified configuration is less than four engines per day. If total 
production of the specified configuration is less than four engines per 
day, the manufacturer selects the actual number of engines produced per 
day.
    (2) The test order may include alternate families to be selected for 
testing at the Administrator's discretion in the event that engines of 
the specified family are not available for testing because those engines 
are not being manufactured during the specified time or are not being 
stored at the specified assembly plant, associated storage facilities, 
or port of entry.
    (3) If the specified family is not being manufactured at a rate of 
at least two engines per day in the case of manufacturers specified in 
40 CFR 89.607(g)(1), or one engine per day in the case of manufacturers 
specified in 40 CFR 89.607(g)(2), over the expected duration of the 
audit, the Assistant Administrator or her or his designated 
representative may select engines of the alternate family for testing.
    (4) In addition, the test order may include other directions or 
information essential to the administration of the required testing.
    (d) A manufacturer may submit a list of engine families and the 
corresponding assembly plants, associated storage facilities, or (in the 
case of imported engines) port facilities from which the manufacturer 
prefers to have engines selected for testing in response to a test 
order. In order that a manufacturer's preferred location be considered 
for inclusion in a test order for a particular engine family, the list 
must be submitted prior to issuance of the test order. Notwithstanding 
the fact that a manufacturer has submitted the list, the Administrator 
may order selection at other than a preferred location.
    (e) Upon receipt of a test order, a manufacturer must proceed in 
accordance with the provisions of this subpart.



Sec. 91.605  Testing by the Administrator.

    (a) The Administrator may require by test order under Sec. 91.604 
that engines of a specified family be selected in a manner consistent 
with the requirements of Sec. 91.606 and submitted to the Administrator 
at the place designated for the purpose of conducting emission tests. 
These tests will be conducted in accordance with Sec. 91.607 to 
determine whether engines manufactured by the manufacturer conform with 
the regulations with respect to which the certificate of conformity was 
issued.
    (b) Designating official data. (1) Whenever the Administrator 
conducts a test on a test engine or the Administrator and manufacturer 
each conduct a test on the same test engine, the results of the 
Administrator's test comprise the official data for that 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 384]]

Administrator makes a determination based on testing conducted under 
paragraph (a) of this section that there is a substantial lack of 
agreement between the manufacturer's test results and the 
Administrator's test results, no manufacturer's test data from the 
manufacturer's test facility will be accepted for purposes of this 
subpart.
    (c) If testing conducted under Sec. 91.604 is unacceptable under 
paragraph (b)(2) of this section, the Administrator must:
    (1) Notify the manufacturer in writing of the Administrator's 
determination that the test facility is inappropriate for conducting the 
tests required by this subpart and the reasons therefor; and
    (2) Reinstate any manufacturer's data upon a showing by the 
manufacturer that the data acquired under Sec. 91.604 was erroneous and 
the manufacturer's data was correct.
    (d) The manufacturer may request in writing that the Administrator 
reconsider the determination in paragraph (b)(2) of this section based 
on data or information which indicates that changes have been made to 
the test facility and these changes have resolved the reasons for 
disqualification.



Sec. 91.606  Sample selection.

    (a) Engines comprising a test sample will be selected at the 
location and in the manner specified in the test order. If a 
manufacturer determines that the test engines cannot be selected in the 
manner specified in the test order, an alternative selection procedure 
may be employed, provided the manufacturer requests approval of the 
alternative procedure prior to the start of test sample selection, and 
the Administrator approves the procedure.
    (b) The manufacturer must produce and assemble the test engines of 
the family selected for testing using its normal production and assembly 
process for engines to be distributed into commerce. If, between the 
time the manufacturer is notified of a test order and the time the 
manufacturer finishes selecting test engines, the manufacturer 
implements any change(s) in its production or assembly processes, 
including quality control, which may reasonably be expected to affect 
the emissions of the engines selected, then the manufacturer must, 
during the audit, inform the Administrator of such changes. If the test 
engines are selected at a location where they do not have their 
operational and emission control systems installed, the test order will 
specify the manner and location for selection of components to complete 
assembly of the engines. The manufacturer must assemble these components 
onto the test engines using normal assembly and quality control 
procedures as documented by the manufacturer.
    (c) No quality control, testing, or assembly procedures will be used 
on the test engine or any portion thereof, including parts and 
subassemblies, that have not been or will not be used during the 
production and assembly of all other engines of that family, unless the 
Administrator approves the modification in production or assembly 
procedures 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, select the 
test engines according to the method specified in the test order.
    (e) The order in which test engines are selected determines the 
order in which test results are to be used in applying the sampling plan 
in accordance with Sec. 91.608.
    (f) The manufacturer must keep on hand all untested engines, if any, 
comprising the test sample until a pass or fail decision is reached in 
accordance with Sec. 91.608(e). The manufacturer may ship any tested 
engine which has not failed the requirements as set forth in Sec. 
91.608(b). However, once the manufacturer ships any test engine, it 
relinquishes the prerogative to conduct retests as provided in Sec. 
91.607(i).



Sec. 91.607  Test procedures.

    (a)(1) For marine SI engines subject to the provisions of this 
subpart, the prescribed test procedures are the test procedures as 
specified in subpart E of this part.
    (2) The Administrator may, on the basis of a written application by 
a manufacturer, prescribe test procedures other than those specified in

[[Page 385]]

paragraph (a)(1) of this section for any marine engine he or she 
determines is not susceptible to satisfactory testing using the 
procedures specified in paragraph (a)(1) of this section.
    (b)(1) The manufacturer may not adjust, repair, prepare, or modify 
the engines selected for testing and may not perform any emission tests 
on engines selected for testing pursuant to the test order unless this 
adjustment, repair, preparation, modification, and/or tests are 
documented in the manufacturer's engine assembly and inspection 
procedures and are actually performed or unless these adjustments and/or 
tests are required or permitted under this subpart or are approved in 
advance by the Administrator.
    (2) The Administrator may adjust or cause to be adjusted any engine 
parameter which the Administrator has determined to be subject to 
adjustment for certification and Selective Enforcement Audit testing in 
accordance with Sec. 91.112, to any setting within the physically 
adjustable range of that parameter, as determined by the Administrator 
in accordance with Sec. 91.112, prior to the performance of any tests. 
However, if the idle speed parameter is one which the Administrator has 
determined to be subject to adjustment, the Administrator may not adjust 
it to any setting which causes a lower engine idle speed than would have 
been possible within the physically adjustable range of the idle speed 
parameter if the manufacturer had accumulated 12 hours of service on the 
engine under paragraph (c) of this section, all other parameters being 
identically adjusted for the purpose of the comparison. The manufacturer 
may be requested to supply information needed to establish an alternate 
minimum idle speed. The Administrator, in making or specifying these 
adjustments, may consider the effect of the deviation from the 
manufacturer's recommended setting on emission performance 
characteristics as well as the likelihood that similar settings will 
occur on in-use engines. In determining likelihood, the Administrator 
may consider factors such as, but not limited to, the effect of the 
adjustment on engine performance characteristics and information from 
similar in-use engines.
    (c) Service accumulation. Prior to performing exhaust emission 
testing on an SEA test engine, the manufacturer may accumulate on each 
engine a number of hours of service equal to the greater of 12 hours or 
the number of hours the manufacturer accumulated during certification on 
the emission data engine corresponding to the family specified in the 
test order.
    (1) Service accumulation must be performed in a manner using good 
engineering judgment to obtain emission results representative of normal 
production engines. This service accumulation must be consistent with 
the new engine break-in instructions contained in the applicable owner's 
manual.
    (2) The manufacturer must accumulate service at a minimum rate of 6 
hours per engine during each 24-hour period, unless otherwise approved 
by the Administrator.
    (i) The first 24-hour period for service begins as soon as 
authorized checks, inspections, and preparations are completed on each 
engine.
    (ii) The minimum service accumulation rate does not apply on 
weekends or holidays.
    (iii) If the manufacturer's service or target is less than the 
minimum rate specified (6 hours per day), then the minimum daily 
accumulation rate is equal to the manufacturer's service target.
    (3) Service accumulation must be completed on a sufficient number of 
test engines during consecutive 24-hour periods to assure that the 
number of engines tested per day fulfills the requirements of paragraphs 
(g)(1) and (g)(2) of this section.
    (d) The manufacturer may not perform any maintenance on test engines 
after selection for testing, nor may the Administrator allow deletion of 
any engine from the test sequence, unless requested by the manufacturer 
and approved by the Administrator before any engine maintenance or 
deletion.
    (e) The manufacturer must expeditiously ship test engines from the 
point of selection to the test facility. If the test facility is not 
located at or in close proximity to the point of selection, the 
manufacturer must assure that test engines arrive at the test facility 
within 24 hours of selection. The

[[Page 386]]

Administrator may approve more time for shipment based upon a request by 
the manufacturer accompanied by a satisfactory justification.
    (f) If an engine cannot complete the service accumulation or an 
emission test because of a malfunction, the manufacturer may request 
that the Administrator authorize either the repair of that engine or its 
deletion from the test sequence.
    (g) Whenever a manufacturer conducts testing pursuant to a test 
order issued under this subpart, the manufacturer must notify the 
Administrator within one working day of receipt of the test order as to 
which test facility will be used to comply with the test order. If no 
test cells are available at a desired facility, the manufacturer must 
provide alternate testing capability satisfactory to the Administrator.
    (1) A manufacturer with projected nonroad engine sales for the 
United States market for the applicable year of 7,500 or greater must 
complete emission testing at a minimum rate of two engines per 24-hour 
period, including each voided test and each smoke test.
    (2) A manufacturer with projected nonroad engine sales for the 
United States market for the applicable year of less than 7,500 must 
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 emission 
testing based upon a request by a manufacturer accompanied by a 
satisfactory justification.
    (h) The manufacturer must perform test engine selection, shipping, 
preparation, service accumulation, and testing in such a manner as to 
assure that the audit is performed in an expeditious manner.
    (i) Retesting. (1) The manufacturer may retest any engines tested 
during a Selective Enforcement Audit once a fail decision for the audit 
has been reached in accordance with Sec. 91.608(e).
    (2) The Administrator may approve retesting at other times based 
upon a request by the manufacturer accompanied by a satisfactory 
justification.
    (3) The manufacturer may retest each engine a total of three times. 
The manufacturer must test each engine or vehicle the same number of 
times. The manufacturer may accumulate additional service before 
conducting a retest, subject to the provisions of paragraph (c) of this 
section.
    (j) A manufacturer must test engines with the test procedure 
specified in subpart E of this part to demonstrate compliance with the 
exhaust emission standard (or applicable FEL) for HC+NOX. If 
alternate procedures were used in certification pursuant to Sec. 
91.119, then those alternate procedures must be used.



Sec. 91.608  Compliance with acceptable quality level and passing and failing 

criteria for selective enforcement audits.

    (a) The prescribed acceptable quality level is 40 percent.
    (b) A failed engine is one whose final test results pursuant to 
Sec. 91.509(b), for HC+NOX. exceed the applicable family 
emission level.
    (c) The manufacturer must test engines comprising the test sample 
until a pass decision is reached for HC+NOX or a fail 
decision is reached for HC+NOX. A pass decision is reached 
when the cumulative number of failed engines, as defined in paragraph 
(b) of this section, for HC+NOX is less than or equal to the 
pass decision number, as defined in paragraph (d) of this section, 
appropriate to the cumulative number of engines tested. A fail decision 
is reached when the cumulative number of failed engines for 
HC+NOX is greater than or equal to the fail decision number, 
as defined in paragraph (d) of this section, appropriate to the 
cumulative number of engines tested.
    (d) The pass and fail decision numbers associated with the 
cumulative number of engines tested are determined by using the tables 
in Appendix A to this subpart, ``Sampling Plans for Selective 
Enforcement Auditing of Marine Engines,'' appropriate to the projected 
sales as made by the manufacturer in its report to EPA under Sec. 
91.504(c)(1). In the tables in Appendix A to this subpart, sampling plan 
``stage'' refers to the cumulative number of engines tested. Once a pass 
or fail decision has been made for HC+NOX. the number of 
engines with

[[Page 387]]

final test results exceeding the emission standard for HC+NOX 
shall not be considered any further for the purposes of the audit.
    (e) Passing or failing of an SEA occurs when the decision is made on 
the last engine required to make a decision under paragraph (c) of this 
section.
    (f) The Administrator may terminate testing earlier than required in 
paragraph (c) of this section.



 Sec. Appendix A to Subpart G of Part 91--Sampling Plans for Selective 
                 Enforcement Auditing of Marine Engines

                   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 sampling plan for code
  letter ``AA'' or sampling plan for code letter ``A'' for Selective
  Enforcement Audits of engine families with annual sales between 20 and
  50 engines. Additional, the manufacturers may switch between these
  plans during the audit.


              Table 2--Sampling Plan for Code Letter ``AA''
                      [Sample inspection criteria]
------------------------------------------------------------------------
   Stage       Pass No.    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       Pass No.    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                   Pass No.                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                   Pass No.                Fail No.
------------------------------------------------------------------------
              1                    (\1\)                    (\2\)
              2                    (\1\)                    (\2\)
              3                    (\1\)                    (\2\)
              4                    (\1\)                    (\2\)

[[Page 388]]

 
              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                   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                        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 applicable to 
marine SI engines for which the Administrator has promulgated 
regulations under this part prescribing emission standards, including 
engines incorporated into marine vessels or equipment, that are offered 
for importation or imported

[[Page 389]]

into the United States, but which engines, at the time of importation or 
being offered for importation are not covered by certificates of 
conformity issued under section 213 and section 206(a) of the Clean Air 
Act as amended (that is, which are nonconforming marine engines as 
defined in Sec. 91.702), and this part. Compliance with regulations 
under this subpart does not relieve any person or entity from compliance 
with other applicable provisions of the Clean Air Act.
    (b) Regulations prescribing further procedures for the importation 
of marine SI engines and marine vessels or equipment into the customs 
territory of the United States, as defined in 19 U.S.C. 1202, are set 
forth 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 the Administrator 
under section 213 and section 206(a) of the Act.
    Nonconforming marine engine. A marine SI engine which is not covered 
by a certificate of conformity prior to importation or being offered for 
importation (or for which such coverage has not been adequately 
demonstrated to EPA). Also, a marine SI engine which was originally 
covered by a certificate of conformity, but subsequently altered or 
modified such that it is no longer in a certified configuration.
    Original engine manufacturer (OEM). The entity which originally 
manufactured the marine engine.
    United States. United States includes the customs territory of the 
United States as defined in 19 U.S.C. 1202, and the Virgin Islands, 
Guam, American Samoa, and the Commonwealth of the Northern Mariana 
Islands.



Sec. 91.703  Admission.

    (a) A nonconforming marine SI engine offered for importation may 
only be imported into the United States under Sec. 91.704, provided 
that an exemption or exclusion is granted by the Administrator. Final 
admission shall not be granted unless the marine SI engine is exempted 
or excluded under Sec. 91.704.
    (b) In order to obtain admission the importer must submit to the 
Administrator a written request for approval containing the following:
    (1) Identification of the importer of the marine SI engine and the 
importer's address, telephone number, and taxpayer identification 
number;
    (2) Identification of the marine SI engine owner, the owner's 
address, 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 these regulations 
the marine SI engine is to be imported;
    (5) Identification of the place(s) where the subject marine SI 
engine is to be stored;
    (6) Authorization for EPA enforcement officers to conduct 
inspections or testing otherwise permitted by the Act or regulations 
thereunder; and
    (7) Such other information as is deemed necessary by the 
Administrator.



Sec. 91.704  Exemptions and exclusions.

    (a) Individuals and businesses are eligible to import nonconforming 
marine SI engines into the United States only under the provisions of 
this section.
    (b) Notwithstanding other requirements of this subpart, a 
nonconforming marine SI engine entitled to one of the temporary 
exemptions of this paragraph may be conditionally admitted into the 
United States if prior written approval for the conditional admission is 
obtained from the Administrator. Conditional admission must be under 
bond. The Administrator may request that the U.S. Customs Service 
require a specific bond amount to ensure compliance with the 
requirements of the Act and this subpart. A written request for approval 
from the Administrator must contain the identification required in Sec. 
91.703(b) and information that demonstrates that the importer is 
entitled to the exemption. Noncompliance with provisions of this section 
may result in the forfeiture of the total amount of the bond or 
exportation of

[[Page 390]]

the marine engine. The following temporary exemptions are permitted by 
this paragraph:
    (1) Exemption for repairs or alterations. Upon written approval by 
EPA, a person may conditionally import under bond a nonconforming marine 
SI engine solely for purpose of repair(s) or alteration(s). The marine 
SI engines may not be operated in the United States other than for the 
sole purpose of repair or alteration. It may not be sold or leased in 
the United States and must be exported upon completion of the repair(s) 
or alteration(s).
    (2) Testing exemption. A nonconforming test marine SI engine may be 
conditionally imported under bond by a person subject to the 
requirements of Sec. 91.1005. A test marine SI engine may be operated 
in the United States provided that the operation is an integral part of 
the test. This exemption is limited to a period not exceeding one year 
from the date of importation unless a request is made by the appropriate 
importer, and subsequently granted by EPA, concerning the marine engine 
in accordance with Sec. 91.1005(f) for a subsequent one-year period.
    (3) Display exemptions. (i) A nonconforming marine engine intended 
solely for display may be conditionally imported under bond subject to 
the requirements of Sec. 91.1007.
    (ii) A display marine engine may be imported by any person for 
purposes related to a business or the public interest. Such purposes do 
not include collections normally inaccessible or unavailable to the 
public on a daily basis, display of a marine engine at a dealership, 
private use, or other purpose that the Administrator determines is not 
appropriate for display exemptions. A display marine engine may not be 
sold or leased in the United States and may not be operated in the 
United States except for the operation incident and necessary to the 
display purpose.
    (iii) A temporary display exemption is granted for 12 months or for 
the duration of the display purpose, whichever is shorter. Extensions of 
up to 12 months each are available upon approval by the Administrator. 
In no circumstances, however, may the total period of exemption exceed 
36 months.
    (c) Notwithstanding any other requirement of this subpart, a marine 
SI engine may be finally admitted into the United States under this 
paragraph if prior written approval for such final admission is obtained 
from the Administrator. A request for approval is to contain the 
identification information required in Sec. 91.703(b) (except for Sec. 
91.703(b)(5)) and information that demonstrates that the importer is 
entitled to the exemption. The following exemptions are permitted by 
this paragraph:
    (1) National security exemption. A nonconforming marine engine may 
be imported under the national security exemption found at Sec. 
91.1008.
    (2) Exemption for marine engines identical to United States 
certified versions. (i) Any person (including businesses) is eligible 
for importing a nonconforming marine SI engine into the United States 
under the provisions of this paragraph. An exemption will be granted if 
the applicant demonstrates to the satisfaction of the 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 a marine 
SI engine of the same or later model year certified by the Original 
Engine Manufacturer for sale in the United States or is proven to have 
been modified to be identical, in all material respects, to a marine 
engine of the same or later model year certified by the OEM for sale in 
the United States according to complete written instructions provided by 
the OEM's United States representative, or his/her designee.
    (ii) Proof of conformity.
    (A) Documentation submitted pursuant to this section for the purpose 
of proving conformity of individual marine engines is to contain 
sufficiently organized data or evidence demonstrating that the marine 
engine identified pursuant to Sec. 91.703(b) is identical, in all 
material respects, to a marine engine identified in an OEM's application 
for certification.
    (B) If the documentation does not contain all the information 
required by this part, or is not sufficiently organized, EPA will notify 
the importer of

[[Page 391]]

any areas of inadequacy and that the documentation will not receive 
further consideration until the required information or organization is 
provided.
    (C) If EPA determines that the documentation does not clearly or 
sufficiently demonstrate that a marine engine is eligible for 
importation under this paragraph, EPA will notify the importer in 
writing.
    (D) If EPA determines that the documentation clearly and 
sufficiently demonstrates that a marine engine is eligible for 
importation under this paragraph, EPA will grant approval for final 
admission in writing.
    (d) Foreign diplomatic and military personnel may conditionally 
import a nonconforming marine engine without bond. At the time of 
conditional admission, the importer must submit to the Administrator the 
written report required in Sec. 91.703(b) (except for information 
required by Sec. 91.703(b)(5)) and a statement from the U.S. Department 
of State confirming qualification for this exemption. Foreign military 
personnel may, in lieu of a statement from the U.S. Department of State, 
submit to the Administrator a copy of their orders for duty in the 
United States. The marine SI engine may not be sold or leased in the 
United States and must be exported if the individual's diplomatic status 
or the foreign military orders for duty in the U.S. are no longer 
applicable, as determined by the Department of 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 be 
conditionally imported by any person provided the importer demonstrates 
to the Administrator that the marine engine is used to propel a marine 
vessel used solely for competition and obtains prior written approval 
from the Administrator. A nonconforming engine imported pursuant to this 
paragraph may not be operated in the United States except for that 
operation incident and necessary for the competition purpose, unless 
subsequently brought into conformity with United States emission 
requirements in accordance with Sec. 91.704(c)(2).
    (f) An application for exemption and exclusion provided for in 
paragraphs (b), (c), and (e) of this section shall be mailed to: U.S. 
Environmental Protection Agency, Office of Mobile Sources, Engine 
Programs & Compliance Division (6403-J), 1200 Pennsylvania Ave., NW., 
Washington, DC 20460, Attention: Imports.



Sec. 91.705  Prohibited acts; penalties.

    (a) The importation of a marine SI engine, including a marine engine 
incorporated into marine vessels or equipment, which is not covered by a 
certificate of conformity other than in accordance with this subpart and 
the entry regulations of the U.S. Customs Service is prohibited. Failure 
to comply with this section is a violation of Sec. 91.1103(a)(1) and 
section 213(d) of the Act.
    (b) Unless otherwise permitted by this subpart, during a period of 
conditional admission, the importer of a marine engine may not:
    (1) Register, license, or operate the marine engine in the United 
States;
    (2) Sell or lease or offer the marine engine for sale or lease;
    (c) A marine SI engine conditionally admitted pursuant to Sec. 
91.704 (b), (d) or (e) and not granted final admission by the end of the 
period of conditional admission, or within such additional time as the 
Administrator and the U.S. Customs Service may allow, is deemed to be 
unlawfully imported into the United States in violation of Sec. 
91.1103(a)(1), section 213(d) and section 203 of the Act, unless the 
marine engine has been delivered to the U.S. Customs Service for export 
or other disposition under applicable Customs laws and regulations. A 
marine SI engine not so delivered is subject to seizure by the U.S. 
Customs Service.
    (d) An importer who violates Sec. 91.1103(a)(1), section 213(d) and 
section 203 of the Act is subject to a civil penalty under Sec. 91.1106 
and section 205 of the Act of not more than $32,500 for each marine 
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 exemption provisions of Sec. 91.704(b) and, who fails to 
deliver the marine engine to the U.S. Customs

[[Page 392]]

Service by the end of the period of conditional admission is liable for 
liquidated damages in the amount of the bond required by applicable 
Customs laws and regulations. The maximum penalty value listed in this 
paragraph (d) is shown for calendar year 2004. Maximum penalty limits 
for later years may be adjusted based on the Consumer Price Index. The 
specific regulatory provisions for changing the maximum penalties, 
published in 40 CFR part 19, reference the applicable U.S. Code citation 
on which the prohibited action is based.

[61 FR 52102, Oct. 4, 1996, as amended at 70 FR 40452, July 13, 2005]



Sec. 91.706  Treatment of confidential information.

    The provisions for treatment of confidential information as 
described in Sec. 91.7 apply.



             Subpart I_In-Use Testing and Recall Regulations



Sec. 91.801  Applicability.

    The requirements of subpart I are applicable to all marine SI 
engines subject to the provisions of subpart A of part 91.
    (a) Marine engines subject to provisions of subpart B of this part 
are subject to recall regulations specified in 40 CFR part 85, subpart 
S, except for the items set forth in this subsection.
    (b) Reference to section 214 of the Clean Air Act in 40 CFR 
85.1801(a) does not apply. Reference to section 216 of the Clean Air Act 
does apply.
    (c) Reference to section 202 of the Act in 40 CFR 85.1802(a) does 
not apply. Reference to section 213 of the Act does apply.
    (d) Reference to ``family particulate emission limits as defined in 
Part 86 promulgated under section 202 of the Act'' in 40 CFR 85.1803(a) 
and 85.1805(a)(1) does not apply. Family emission limits as defined in 
40 CFR part 89 promulgated under section 213 of the Act does apply.
    (e) Add the following paragraph to 40 CFR 85.1805 (a)(9): A 
telephone number provided by the manufacturer, which may be used to 
report difficulty in obtaining recall repairs.
    (f) The requirements of the Manufacturer In-use testing program set 
forth in Sec. Sec. 91.803 through 91.805 are waived for existing 
technology OB/PWC as defined in Sec. 91.3 through model year 2003.
    (1) The Administrator has the discretion to waive the requirements 
of the Manufacturer In-use testing program set forth in sections 91.803 
through 91.805 for existing technology OB/PWC for a specific engine 
family up to model year 2005 if, upon the request of the manufacturer, 
the Administrator determines that the engine family will be phased out 
of U.S. production by model year 2005. As a condition to receiving such 
a waiver for either model year 2004 or 2005 or both, the manufacturer 
must discontinue U.S. production according to the schedule upon which 
the Administrator based the waiver. Failure to do so by the manufacturer 
will void ab initio the certificate of conformity.
    (2) A manufacturer request under paragraph (f)(1) of this section 
must be in writing and must apply to a specific engine family. The 
request must identify the engine family designation, the schedule for 
phasing the engine family out of U.S. production, and any other 
information the Administrator may require.



Sec. 91.802  Definitions.

    (a) For the purposes of this subpart, except as otherwise provided, 
the definitions in subpart A of this part apply to this subpart.
    (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 those 
configurations within families which the manufacturers must then subject 
to in-use testing. For each model year, EPA may identify the following 
number of engine families for testing, based on the number of the 
manufacturer's engine families to which this subpart is applicable 
produced in that model year:
    (1) For manufactures with three or fewer engine families, EPA may 
identify a single engine family.

[[Page 393]]

    (2) For manufacturers with four or more engine families, EPA may 
identify a number of engine families that is no greater than twenty-five 
percent of the number of engine families to which this subpart is 
applicable that are produced by the manufacturer in that model year.
    (b) For each engine family identified by EPA, engine manufacturers 
shall perform emission testing of an appropriate sample of in-use 
engines from each engine family. Manufacturers shall submit data from 
this in-use testing to EPA.
    (c) Number of engines to be tested. An engine manufacturer shall 
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 be tested by a 
manufacturer will be determined by the following method:
    (1) A minimum of four (4) engines per family provided that no engine 
fails any standard. For each failing engine, two more engines shall be 
tested until the total number of engines equals ten (10).
    (2) For engine families of less than 500 engines for the identified 
model year or for engine manufacturers who make less than or equal to 
2,000 for that model year, a minimum of two (2) engines per family 
provided that no engine fails any standard. For each failing engine, two 
more engines shall be tested until the total number of engines equals 
ten (10).
    (3) If an engine family was certified using carry over emission data 
and has been previously tested under paragraph (c) (1) or (2) of this 
section (and EPA has not ordered a recall for that family), then only 
one engine for that family must be tested. If that one engine fails any 
pollutant, testing must be conducted as outlined at paragraph (c) (1) or 
(2) of this section, whichever is appropriate.
    (d) At the discretion of the Administrator, an engine manufacturer 
may test more engines than the minima described in paragraph (c) of this 
section or may concede failure before testing a total of ten (10) 
engines.
    (e) The Administrator will consider failure rates, average emission 
levels and the existence of any defects among other factors in 
determining whether to pursue remedial action under this subpart. The 
Administrator may order a recall pursuant to Sec. Sec. 91.807-91.814 
before testing reaches the tenth engine.
    (f) The Administrator may approve an alternative to manufacturer in-
use testing, where:
    (1) Engine family production is less than or equal to 200 per year; 
or
    (2) Engines cannot be obtained for testing because they are used 
substantially in craft which are not conducive to engine removal such as 
large vessels where the engine can not be removed without dismantling 
either the engine or the vessel; or
    (3) Other compelling circumstances associated with the structure of 
the industry and uniqueness of marine engine applications. Such 
alternatives shall be designed to determine whether the engine family is 
in compliance in-use.
    (g) Collection of in-use engines. The engine manufacturer shall 
procure in-use engines which have been operated for between half and 
three-quarters of the engine's useful life. The engine manufacturer may 
test engines from more than one model year in a given year. The 
manufacturer shall begin testing within twelve calendar months after 
receiving notice that EPA has identified a particular engine family for 
testing and shall complete testing of such engine family within twelve 
calendar months from the start of such testing. Test engines may be 
procured from sources associated with the engine manufacturer (i.e., 
manufacturer established fleet engines, etc.) or from 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]



Sec. 91.804  Maintenance, procurement and testing of in-use engines.

    (a) A test engine must have a maintenance and use history 
representative of actual in-use conditions.
    (1) To comply with this requirement a manufacturer must obtain 
information from the end users regarding the

[[Page 394]]

accumulated usage, maintenance, operating conditions, and storage of the 
test engines.
    (2) Documents used in the procurement process must be maintained as 
required in Sec. 91.121.
    (b) The manufacturer may perform minimal set-to-spec maintenance on 
components of a test engine that are not subject to parameter 
adjustment. Maintenance may include only that which is listed in the 
owner's instructions for engines with the amount of service and age of 
the acquired test engine. Documentation of all maintenance and 
adjustments shall be maintained and retained as required by Sec. 
91.121.
    (c) At least one valid emission test, according to the test 
procedure outlined in subpart E of this part, is required for each in-
use engine.
    (d) The Administrator may waive portions or requirements of the test 
procedure, if any, that are not necessary to determine in-use 
compliance.
    (e) If a selected in-use engine fails to comply with any applicable 
emission standards, the manufacturer shall determine the reason for 
noncompliance. The manufacturer must report all such reasons 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 the 
Administrator within three (3) months of completion of testing all 
emission 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 its 
in-use testing with a pre-approved information heading. The 
Administrator may exempt manufacturers from this requirement upon 
written request with supporting justification.
    (c) All testing reports and requests for approvals made under this 
subpart shall be addressed to: Manager, Engine Compliance Programs Group 
6403-J, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., 
NW., Washington, DC 20460.
    (d) The Administrator may approve and/or require modifications to a 
manufacturer's in-use testing programs.



Sec. 91.806  Voluntary emissions recall.

    (a) Prior to an EPA ordered recall, the manufacturer may perform a 
voluntary emissions recall pursuant to regulations at Sec. 91.904 of 
this part. Such manufacturer is subject to the reporting requirements at 
Sec. 91.905 of this part.
    (b) Once EPA determines that a substantial number of engines fail to 
conform with the requirements of section 213 of the Act or this part, 
the manufacturer will not have the option of a voluntary emissions 
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 marine 
engines subject to the provisions of subpart A of this part 91. The 
requirement to report emission-related defects affecting a given class 
or category of engines remains applicable for five years from the end of 
the model year in which such engines were manufactured.



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 this 
part are subject to emission defect reporting requirements specified in 
40 CFR Part 85,

[[Page 395]]

subpart T, except for the items set forth in this section.
    (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 CFR 
85.1902(a) does not apply. Reference to the Clean Air Act, 42 U.S.C. 
7401 does apply.
    (d) Reference to the ``approved Application for Certification 
required by 40 CFR 86.077-22 and like provisions of Part 85 and Part 86 
of Title 40 of the Code of Federal Regulations'' does not apply. 
Reference to the approved application for certification required by 
91.108 and like provisions of Part 91 does apply.
    (e) Reference to section 202(d) of the Act in Sec. 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 in Sec. 85.1902(e) and (f) 
does not apply. Reference to section 216 of the Act does apply.



Sec. 91.904  Voluntary emission recall.

    (a) A manufacturer, prior to initiating a voluntary emission recall 
program, must submit to the EPA the following information for a 15 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, and such 
other information as may be required to identify the engines recalled;
    (2) A description of the specific modifications, alterations, 
repairs, corrections, adjustments, or other changes to be made to 
correct the engines affected by the emission-related defect;
    (3) A description of the method by which the manufacturer will 
notify engine owners including copies of any letters of notification to 
be sent to engine owners;
    (4) A description of the proper maintenance or use, if any, upon 
which the manufacturer conditions eligibility for repair under the 
recall plan, and a description of the proof to be required of an engine 
owner to demonstrate compliance with any such conditions;
    (5) A description of the procedure to be followed by engine owners 
to obtain correction of the nonconformity. This may include designation 
of the date on or after which the owner can have the nonconformity 
remedied, the time reasonably necessary to perform the labor to remedy 
the defect, and the designation of facilities at which the defect can be 
remedied;
    (6) A description of the class of persons other than dealers and 
authorized warranty agents of the manufacturer who will remedy the 
defect; and
    (7) A description of the system by which the manufacturer will 
assure that an adequate supply of parts is available to perform the 
repair under the plan.
    (b) The manufacturer must submit at least one report on the progress 
of the recall campaign. This report is submitted one year from the date 
notification begins and includes the following information:
    (1) The methods used to notify both engine owners, dealers and other 
individuals involved in the recall campaign;
    (2) The number of engines known or estimated to be affected by the 
emission-related defect and an explanation of the means by which this 
number was determined;
    (3) The number of engines actually receiving repair under the plan;
    (4) The number of engine owners, dealers, and other individuals 
involved in the recall campaign that have been notified and the number 
of engines that have actually received repair; and
    (5) The number of engines determined to be ineligible for remedial 
action 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 voluntary 
recall progress report shall be sent to: Manager, Engine Compliance 
Programs Group 6403-J, Environmental Protection Agency, 1200 
Pennsylvania Ave., NW., Washington, DC 20460.
    (b) The information gathered by the manufacturer to compile the 
reports must be retained for not less than five years from the date of 
the manufacture of the engines and must be made available to duly 
authorized officials of the EPA upon request.

[[Page 396]]



Sec. 91.906  Responsibility under other legal provisions preserved.

    The filing of any report under the provisions of this subpart will 
not affect a manufacturer's responsibility to file reports or 
applications, obtain approval, or give notice under any provision of 
law.



Sec. 91.907  Disclaimer of production warranty applicability.

    (a) The act of filing an Emission Defect Information Report is 
inconclusive as to the existence of a defect subject to the warranty 
provided by section 207(a) of the Act.
    (b) A manufacturer may include on each page of its Emission Defect 
Information Report a disclaimer stating that the filing of a Defect 
Information Report pursuant to these regulations is not conclusive as to 
the applicability of the warranty provided by subpart M of this part.



         Subpart K_Exclusion and Exemption of Marine SI Engines



Sec. 91.1001  Applicability.

    The requirements of this subpart K are applicable to all marine 
spark-ignition propulsion engines subject to the provisions of subpart A 
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 of Sec. 91.1103.
    Export exemption means an exemption granted under Sec. 91.1104(b) 
for the purpose of exporting new marine SI engines.
    National security exemption means an exemption which may be granted 
under Sec. 91.1104(b) for the purpose of national security.
    Manufacturer-owned marine engine means an uncertified marine SI 
engine owned and controlled by a marine SI engine manufacturer and used 
in a manner not involving lease or sale by itself or in a marine vessel 
or piece of equipment employed from year to year in the ordinary course 
of business for product development, production method assessment, or 
market promotion purposes.
    Testing exemption means an exemption which may be granted under 
Sec. 91.1104(b) for the purpose of research, investigations, studies, 
demonstrations or training, but not including national security.



Sec. 91.1003  Exclusions based on section 216(10) of the Act.

    (a) For the purpose of determining the applicability of section 
216(10) of the Act, any marine SI engine as that term is defined in 
subpart A of this part, is deemed a nonroad engine.
    (b) EPA will maintain a list of models of marine SI engines, and the 
marine vessels which use such engines, that have been determined to be 
excluded because they are used solely for competition. This list will be 
available to the public and may be obtained by writing to the following 
address: Group Manager, Engine Compliance Programs Group, Engine 
Programs and Compliance Division (6403J), Environmental Protection 
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
    (c) Upon written request with supporting documentation, EPA will 
make written determinations as to whether certain engines are or are not 
marine SI engines. Engines that are determined not to be marine SI 
engines are excluded from regulations under this part but may be subject 
to regulations under another part.



Sec. 91.1004  Who may request an exemption.

    (a) Any person may request a testing exemption under Sec. 91.1005.
    (b) Any marine SI engine manufacturer may request a national 
security exemption under Sec. 91.1008.
    (c) For marine SI engine manufacturers, marine SI engines for export 
purposes are exempt without application, subject to the provisions of 
Sec. 91.1009.
    (d) For eligible manufacturers, as determined by Sec. 91.1006, 
manufacturer-owned marine SI engines are exempt without application, 
subject to the provisions of Sec. 91.1006.
    (e) For any person, display marine SI engines are exempt without 
application, subject to the provisions of Sec. 91.1007.

[[Page 397]]



Sec. 91.1005  Testing exemption.

    (a) Any person requesting a testing exemption must demonstrate the 
following:
    (1) That the proposed test program has a purpose which constitutes 
an appropriate basis for an exemption in accordance with Sec. 
91.1104(b);
    (2) That the proposed test program necessitates the granting of an 
exemption;
    (3) That the proposed test program is reasonable in scope; and
    (4) That the proposed test program exhibits a degree of control 
consonant with the purpose of the program and the EPA's monitoring 
requirements.
    (5) Paragraphs (b), (c), (d), and (e) of this section describe what 
constitutes a sufficient demonstration for each of the four identified 
elements.
    (b) With respect to the purpose of the proposed test program, an 
appropriate purpose would be research, investigations, studies, 
demonstrations, or training, but not national security. A concise 
statement 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 a 
practicable manner without performing or causing to be performed one or 
more of the prohibited acts under Sec. 91.1103. In appropriate 
circumstances, time constraints may be a sufficient basis for necessity, 
but the cost of certification alone, in the absence of extraordinary 
circumstances, is not a basis for necessity.
    (d) With respect to reasonableness, a test program must exhibit a 
duration of reasonable length and affect a reasonable number of engines. 
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 incorporate 
procedures consistent with the purpose of the test and be capable of 
affording EPA monitoring capability. As a minimum, required items of 
information include:
    (1) The technical nature of the test;
    (2) The site of the test;
    (3) The duration and accumulated engine operation associated with 
the test;
    (4) The ownership arrangement with regard to the engines involved in 
the test;
    (5) The intended final disposition of the engines;
    (6) The manner in which the engine identification numbers will be 
identified, 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 testing 
exemption to cover marine SI engines intended for use in test programs 
planned or anticipated over the course of a subsequent one-year period. 
Unless otherwise required by the Manager, Engine Compliance Programs 
Group, a manufacturer requesting such an exemption need only furnish the 
information required by paragraphs (a)(1) and (d)(2) of this section 
along with a description of the recordkeeping and control procedures 
that will be employed to assure that the engines are used for 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, any 
manufacturer-owned marine SI engine, as defined by Sec. 91.1002, is 
exempt from compliance with Sec. 91.1103, without application, if the 
manufacturer complies with the following terms and conditions:
    (1) The manufacturer must establish, maintain, and retain the 
following adequately organized and indexed information on each exempted 
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 to these 
records to EPA authorized representatives as outlined in Sec. 91.505.
    (3) Unless the requirement is waived or an alternative procedure is 
approved by the Director, Engine Programs & Compliance Division, the 
manufacturer must permanently affix a label to each marine engine on 
exempt status. This label should:

[[Page 398]]

    (i) Be affixed in a readily visible portion of the engine,
    (ii) Be attached in such a manner that it cannot be removed without 
destruction or defacement,
    (iii) State in the English language/and in block letters and 
numerals of a color that contrasts with the background of the label, the 
following information:
    (A) The label heading ``Emission Control Information;''
    (B) Full corporate name and trademark of manufacturer;
    (C) Engine displacement, engine family identification, and model 
year of engine; or person or office to be contacted for further 
information about the engine;
    (D) The statement ``This marine SI engine is exempt from the 
prohibitions of 40 CFR 91.1103.''
    (4) No provision of paragraph (a)(3) of this section prevents a 
manufacturer from including any other information it desires on the 
label.



Sec. 91.1007  Display exemption.

    An uncertified marine SI engine is a display engine when it is to be 
used solely for display purposes, will only be operated incident and 
necessary to the display purpose, and will not be sold unless an 
applicable certificate of conformity has been received or the engine has 
been finally admitted pursuant to subpart H of this part. A display 
engine is exempt without application.



Sec. 91.1008  National security exemption.

    (a)(1) Any marine SI engine, otherwise subject to this part, which 
is used in a vessel that exhibits substantial features ordinarily 
associated with military combat such as armor and/or permanently affixed 
weaponry and which will be owned and/or used by an agency of the Federal 
government with responsibility for national defense, will be exempt from 
these regulations for purposes of national security. No request for 
exemption is necessary.
    (2) Manufacturers may request a national security exemption for any 
marine SI engine, otherwise subject to this part, which does not meet 
the conditions described in paragraph (a)(1) of this section. A 
manufacturer requesting a national security exemption must state the 
purpose for which the exemption is required and the request must be 
endorsed by an agency of the federal government charged with 
responsibility for national defense.
    (b) EPA will maintain a list of models of marine SI engines (and the 
vessels which use them) that have been granted a national security 
exemption under paragraph (a)(2) of this section. This list will be 
available to the public and may be obtained by writing to the following 
address: Manager, Engine Compliance Programs Group 6403-J, Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.



Sec. 91.1009  Export exemptions.

    (a) A new marine SI engine intended solely for export, and so 
labeled or tagged on the outside of the container and on the engine 
itself, is subject to the provisions of Sec. 91.1103, unless the 
importing country has emission standards for new marine engines which 
differ from EPA standards.
    (b) For the purpose of paragraph (a) of this section, a country 
having no standards, whatsoever, is deemed to be a country having 
emission standards which differ from EPA standards.
    (c) EPA will maintain a list of foreign countries that have in force 
marine SI emission standards identical to U.S. EPA standards and have so 
notified EPA. This list may be obtained by writing to the following 
address: Manager, Engine Compliance Programs Group 6403-J, Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. 
New marine SI engines exported to such countries must comply with EPA 
certification regulations.
    (d) It is a condition of any exemption for the purpose of export 
under Sec. 91.1004(b) that such exemption be void ab initio with 
respect to a new marine SI engine intended solely for export if such 
marine SI engine is sold, or offered for sale, to an ultimate purchaser 
in the United States for purposes other than export.



Sec. 91.1010  Granting of exemptions.

    (a) If upon completion of the review of an exemption request made 
pursuant to Sec. 91.1005 or Sec. 91.1008, EPA determines

[[Page 399]]

it is appropriate to grant such an exemption, a memorandum of exemption 
will be prepared and submitted to the person requesting the exemption. 
The memorandum shall set forth the basis for the exemption, its scope, 
and such terms and conditions as are deemed necessary. Such terms and 
conditions shall generally include, but are not limited to, agreements 
by the applicant to conduct the exempt activity in the manner described 
to EPA, create and maintain adequate records accessible to EPA at 
reasonable times, employ labels for the exempt engines setting forth the 
nature of the exemption, take appropriate measures to assure that the 
terms of the exemption are met, and advise EPA of the termination of the 
activity and the ultimate disposition of the engines.
    (b) Any exemption granted pursuant to paragraph (a) of this section 
is deemed to cover any subject engine only to the extent that the 
specified terms and conditions are complied with. A breach of any term 
or condition causes the exemption to be void ab initio with respect to 
any engine. Consequently, the causing or the performing of an act 
prohibited under Sec. 91.1103(a) (1) or (3), other than in strict 
conformity with all terms and conditions of this exemption renders the 
person to whom the exemption is granted, and any other person to whom 
the provisions of Sec. 91.1103 are applicable, liable under sections 
204 and 205 of the Act.



Sec. 91.1011  Submission of exemption requests.

    Requests for exemption or further information concerning exemptions 
and/or the exemption request review procedure should be addressed 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 described 
in Sec. 91.7 apply to this subpart.



Sec. 91.1013  Exemption for certified Small SI engines.

    The provisions of 40 CFR 1045.605 and 1045.610 apply for engines 
subject to the standards of this part 91. This generally allows 
manufacturers to use marine engines that have been certified to emission 
standards for nonroad spark-ignition engines below 19 kW without 
recertifying those engines under this part 91.

[73 FR 59183, Oct. 8, 2008]



      Subpart L_Prohibited Acts and General Enforcement Provisions



Sec. 91.1101  Applicability.

    The requirements of subpart L are applicable to all marine engines 
and 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 given them 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 or 
vessels for distribution in commerce, the sale, the offering for sale, 
or the introduction, or delivery for introduction, into commerce, of any 
new marine SI engine manufactured after the applicable effective date 
under this part unless such engine is covered by a certificate of 
conformity issued (and in effect) under regulations found in this part.
    (ii) In the case of any person, except as provided by regulation of 
the Administrator, the importation into the United States of any new 
marine SI engine manufactured after the applicable effective date under 
this part 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 or copying 
of records or to fail to make reports or provide information required 
under Sec. 91.1104.
    (ii) For a person to fail or refuse to permit entry, testing or 
inspection authorized under Sec. 91.118, 91.505 or 91.1104.

[[Page 400]]

    (iii) For a person to fail or refuse to perform tests, or to have 
tests performed as required under Sec. 91.118 or Sec. 91.1104.
    (iv) For a person to fail to establish or maintain records as 
required under Sec. 91.1104.
    (3)(i) For a person to remove or render inoperative a device or 
element of design installed on or in a marine engine in compliance with 
regulations under this part prior to its sale and delivery to the 
ultimate purchaser, or for a person knowingly to remove or render 
inoperative such a device or element of design after the sale and 
delivery to the ultimate purchaser; or
    (ii) For a person to manufacture, sell or offer to sell, or install, 
a part or component intended for use with, or as part of, a marine SI 
engine, where a principal effect of the part or component is to bypass, 
defeat, or render inoperative a device or element of design installed on 
or in a marine SI engine in compliance with regulations issued under 
this part, and where the person knows or should know that the part or 
component is being offered for sale or installed for this use or put to 
such use.
    (4) For a manufacturer of a new marine SI engine subject to 
standards prescribed under this part:
    (i) To sell, offer for sale, or introduce or deliver into commerce, 
a marine SI engine unless the manufacturer has complied with the 
requirements of Sec. 91.1203.
    (ii) To sell, offer for sale, or introduce or deliver into commerce, 
a marine SI engine unless a label or tag is affixed to the engine in 
accordance with regulations under this part.
    (iii) To provide directly or indirectly in any communication to the 
ultimate purchaser or a subsequent purchaser that the coverage of a 
warranty under the Act is conditioned upon use of a part, component, or 
system manufactured by the manufacturer or a person acting for the 
manufacturer or under its control, or conditioned upon service performed 
by such persons, except as provided in subpart M of this part.
    (iv) To fail or refuse to comply with the terms and conditions of 
the warranty under subpart M of this part.
    (5) For a manufacturer of new marine vessels or equipment to 
distribute in commerce, sell, offer for sale, or introduce into 
commerce, marine vessels or equipment which contain an engine not 
covered by a certificate of conformity.
    (b) For the purposes of enforcement of this part, the following 
apply:
    (1) Nothing in paragraph (a) of this section is to be construed to 
require the use of manufacturer parts in maintaining or repairing a 
marine SI engine.
    (2) Actions for the purpose of repair or replacement of a device or 
element of design or any other item are not considered prohibited acts 
under Sec. 91.1103(a) if the actions are a necessary and temporary 
procedure, the device or element is replaced upon completion of the 
procedure, and the action results in the proper functioning of the 
device or element of design.
    (3) The following provisions apply for converting marine SI engines 
to use alternative fuels:
    (i) Until December 31, 2009, converting an engine to use a clean 
alternative fuel (as defined in Title II of the Act) is not considered a 
prohibited act under paragraph (a) of this section if the engine 
complies with the applicable standard when operating on the alternative 
fuel. Also, in the case of engines converted to dual fuel or flexible 
use, the action must result in the proper functioning of the engine when 
it operates on conventional fuel.
    (ii) The provisions of 40 CFR 1045.645 apply starting January 1, 
2010.
    (4) A new marine spark-ignition engine intended solely to replace an 
engine in an outboard engine, or other engine to which this part is 
applicable as determined by Sec. Sec. 91.1, 91.101, 91.106 that was 
originally produced with an engine manufactured prior to the applicable 
implementation date as described in Sec. Sec. 91.2, and 91.106 and 
91.205(a)(1), or that was originally produced in a model year in which 
less stringent emission standards under this part were in effect shall 
not be subject to the requirements of Sec. 91.106 or the prohibitions 
of paragraph (a)(1) of this section provided that:
    (i) The engine manufacturer has ascertained that no engine produced 
by

[[Page 401]]

itself or the manufacturer of the engine that is being replaced, if 
different, and certified to the requirements of this subpart, is 
available with the appropriate physical or performance characteristics 
to repower the outboard, personal watercraft or jetboat; and
    (ii) Unless an alternative control mechanism is approved in advance 
by the Administrator, the engine manufacturer or its agent takes 
ownership and possession of the engine being replaced; and
    (iii) The replacement engine is clearly labeled with the following 
language, or similar alternate language approved in advance by the 
Administrator:

This engine does not comply with Federal nonroad or on-highway emission 
requirements. Sale or installation of this engine for any purpose other 
than as a replacement engine in a marine vessel whose original engine 
was not certified, or was certified to less stringent emission standards 
than those that apply to the year of manufacture of this engine, is a 
violation of Federal law subject to civil penalty; and

    (iv) Where the replacement engine is intended to replace an engine 
built after the applicable implementation date as described in 
Sec. Sec. 91.2, 91.106 and 91.205(a)(1), but built to less stringent 
emission standards than are currently applicable, the replacement engine 
shall be identical in all material respects to a certified configuration 
of the same or later model year as the engine being replaced; and
    (v) In cases where an engine is to be imported for replacement 
purposes under the provisions of this paragraph (b)(4), the term 
``engine manufacturer'' does not apply to an individual or other entity 
that does not possess a current Certificate of Conformity issued 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; 73 FR 59183, Oct. 8, 2008]



Sec. 91.1104  General enforcement provisions.

    (a) Information collection provisions. (1) Every manufacturer of new 
marine SI engines and other persons subject to the requirements of this 
part must establish and maintain records, perform tests where such 
testing is not otherwise reasonably available under this part, make 
reports and provide information the Administrator may reasonably require 
to determine whether the manufacturer or other person has acted or is 
acting in compliance with this part or to otherwise carry out the 
provisions of this part, and must, upon request of an officer or 
employee duly designated by the Administrator, permit the officer or 
employee at reasonable times to have access to and copy such records.
    (2) For purposes of enforcement of this part, an officer or employee 
duly designated by the Administrator, upon presenting appropriate 
credentials, is authorized:
    (i) To enter, at reasonable times, any establishment of the 
manufacturer, or of any person whom the manufacturer engaged to perform 
any activity required under paragraph (a)(1) of this section, for the 
purposes of inspecting or observing any activity conducted pursuant to 
paragraph (a)(1) of this section, and
    (ii) To inspect records, files, papers, processes, controls, and 
facilities used in performing an activity required by paragraph (a)(1) 
of this section, by the manufacturer or by a person whom the 
manufacturer engaged to perform the activity.
    (b) Exemption provision. The Administrator may exempt a new marine 
engine from compliance with Sec. 91.1103 upon such terms and conditions 
as the Administrator may find necessary for the purpose of export, 
research, investigations, studies, demonstrations, or training, or for 
reasons of national security.
    (c) Importation provision. (1) A new marine SI engine, or vessel 
offered for importation or imported by a person in violation of Sec. 
91.1103 shall be refused admission into the United States, but the 
Secretary of the Treasury and the Administrator may, by joint 
regulation, provide for deferring a final determination as to admission 
and authorizing the delivery of such a marine SI engine offered for 
import to the owner or consignee thereof upon such terms and conditions 
(including the furnishing of a bond) as may appear to them appropriate 
to insure that the marine SI engine will be brought into conformity

[[Page 402]]

with the standards, requirements, and limitations applicable to it under 
this part.
    (2) If a marine SI engine is finally refused admission under this 
paragraph, the Secretary of the Treasury shall cause disposition thereof 
in accordance with the customs laws unless it is exported, under 
regulations prescribed by the Secretary, within 90 days of the date of 
notice of the refusal or additional time as may be permitted pursuant to 
the regulations.
    (3) Disposition in accordance with the customs laws may not be made 
in such manner as may result, directly or indirectly, in the sale, to 
the ultimate consumer, of a new marine SI engine that fails to comply 
with applicable standards of the Administrator under this part.
    (d) Export provision. A new marine SI engine intended solely for 
export, and so labeled or tagged on the outside of the container and on 
the engine itself, shall be subject to the provisions of Sec. 91.1103, 
except that if the country that is to receive the engine has emission 
standards that differ from the standards prescribed under subpart B of 
this part, then the engine must comply with 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 to 
restrain violations of Sec. 91.1103.
    (b) Actions to restrain such violations 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 in any district may run into any 
other district.



Sec. 91.1106  Penalties.

    (a) Violations. A violation of the requirements of this subpart is a 
violation of the applicable provisions of the Act, including sections 
203 and 213(d), and is subject to the penalty provisions thereunder.
    (1) A person who violates Sec. 91.1103 (a)(1), (a)(4), or (a)(5), 
or a manufacturer or dealer who violates Sec. 91.1103(a)(3)(i), is 
subject to a civil penalty of not more than $32,500 for each violation.
    (2) A person other than a manufacturer or dealer who violates Sec. 
91.1103(a)(3)(i) or any person who violates Sec. 91.1103(a)(3)(ii) is 
subject to a civil penalty of not more 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 respect to 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 of violation.
    (6) The maximum penalty values listed in this section are shown for 
calendar year 2004. Maximum penalty limits for later years may be 
adjusted based on the Consumer Price Index. The specific regulatory 
provisions for changing the maximum penalties, published in 40 CFR part 
19, reference the applicable U.S. Code citation on which the prohibited 
action is based.
    (b) Civil actions. The Administrator may commence a civil action to 
assess and recover any civil penalty under paragraph (a) of this 
section.
    (1) An action under this paragraph may be brought in the district 
court of the United States for the district in which the violation is 
alleged to have occurred or in which the defendant resides or has the 
Administrator's principal place of business, and the court shall have 
jurisdiction to assess a civil penalty.
    (2) In determining the amount of a civil penalty to be assessed 
under this paragraph, the court is to take into account the gravity of 
the violation, the economic benefit or savings (if any) resulting from 
the violation, the size of the violator's business, the violator's 
history of compliance with Title II of the Act, action taken to remedy 
the violation, the effect of the penalty on the violator's ability to 
continue in business, and such other matters as justice may require.

[[Page 403]]

    (3) In any such action, subpoenas for witnesses who are required to 
attend a district court in any district may run into any other district.
    (c) Administrative assessment of certain penalties--(1) 
Administrative penalty authority. In lieu of commencing a civil action 
under paragraph (b) of this section, the Administrator shall assess any 
civil penalty prescribed in paragraph (a) of this section, except that 
the maximum amount of penalty sought against each violator in a penalty 
assessment proceeding can not exceed $270,000, unless the Administrator 
and the Attorney General jointly determine that a matter involving a 
larger penalty amount is appropriate for administrative penalty 
assessment. Any such determination by the Administrator and the Attorney 
General is not subject to judicial review. Assessment of a civil penalty 
is made by an order made on the record after opportunity for a hearing 
held in accordance with the procedures found at part 22 of this chapter. 
The Administrator 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 any civil 
penalty assessed under this subsection, the Administrator is to take 
into account the gravity of the violation, the economic benefit or 
savings (if any) resulting from the violation, the size of the 
violator's business, the violator's history of compliance with Title II 
of the Act, action taken to remedy the violation, the effect of the 
penalty on the violator's ability to continue in business, and such 
other matters as justice may require.
    (3) Effect of administrator's action. (i) Action by the 
Administrator under this paragraph does not affect or limit the 
Administrator's authority to enforce any provisions of this part; except 
that any violation with respect to which the Administrator has commenced 
and is diligently prosecuting an action under this part, or for which 
the Administrator has issued a final order not subject to further 
judicial review and for which the violator has paid a penalty assessment 
under this part may not be the subject of a civil penalty action under 
paragraph (b) of this section.
    (ii) No action by the Administrator under this part affects a 
person's obligation to comply with a section of this part.
    (4) Finality of order. An order issued under this subsection is to 
become final 30 days after its issuance unless a petition for judicial 
review is filed under paragraph (c)(5) of this section.
    (5) Judicial review. (i) A person against whom a civil penalty is 
assessed in accordance with this subsection may seek review of the 
assessment in the United States District Court for the District of 
Columbia or for the district in which the violation is alleged to have 
occurred, in which such person resides, or where the person's principle 
place of business is located, within the 30-day period beginning on the 
date a civil penalty order is issued. The person must simultaneously 
send a copy of the filing by certified mail to the Administrator and the 
Attorney General.
    (ii) The Administrator must file in the court within 30 days a 
certified copy, or certified index, as appropriate, of the record on 
which the order was issued. The court is not to set aside or remand any 
order issued in accordance with the requirements of this paragraph 
unless substantial evidence does not exist in the record, taken as a 
whole, to support the finding of a violation or unless the 
Administrator's assessment of the penalty constitutes an abuse of 
discretion, and the court is not to impose additional civil penalties 
unless the Administrator's assessment of the penalty constitutes an 
abuse of discretion. In any proceedings, the United States may seek to 
recover civil penalties assessed under this section.
    (6) Collection. (i) If any person fails to pay an assessment of a 
civil penalty imposed by the Administrator as provided in this part 
after the order making the assessment has become final or after a court 
in an action brought under paragraph (c)(5) of this section has entered 
a final judgment in favor of the Administrator, the Administrator is to 
request that the Attorney General bring a civil action in an appropriate 
district court to recover the amount

[[Page 404]]

assessed (plus interest at rates established pursuant to section 
6621(a)(2) of the Internal Revenue Code of 1986 from the date of the 
final order or the date of final judgment, as the case may be). In such 
an action, the validity, amount, and appropriateness of the penalty is 
not subject to review.
    (ii) A person who fails to pay on a timely basis the amount of an 
assessment of a civil penalty as described in paragraph (c)(6)(i) of 
this section is required to pay, in addition to that amount and 
interest, the United States' enforcement expenses, including attorney's 
fees and costs for collection proceedings, and a quarterly nonpayment 
penalty for each quarter during which the failure to pay persists. The 
nonpayment penalty is an amount equal to 10 percent of the aggregate 
amount of that person's penalties and nonpayment penalties which are 
unpaid as of the beginning of such quarter.

[61 FR 52102, Oct. 4, 1996, as amended at 70 FR 40452, July 13, 2005]



Sec. 91.1107  Warranty provisions.

    (a) The manufacturer of each marine SI engine must warrant to the 
ultimate purchaser and each subsequent purchaser that the engine is 
designed, built, and equipped so as to conform at the time of sale with 
applicable regulations under section 213 of the Act, and is free from 
defects in materials and workmanship which cause such engine to fail 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 rebuilder of 
the part may certify according to Sec. 85.2112 of this chapter that use 
of the part will not result in a failure of the engine to comply with 
emission standards promulgated in this part.
    (c) For the purposes of this section, the owner of any engine 
warranted under this part is responsible for the proper maintenance of 
the engine. Proper maintenance includes replacement and service, at the 
owner's expense at a service establishment or facility of the owner's 
choosing, such items as spark plugs, points, condensers, and any other 
part, item, or device related to emission control (but not designed for 
emission control) under the terms of the last 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. 91.1108  In-use compliance provisions.

    (a) Effective with respect to marine engine and vessels manufactured 
during model years 1997 and after:
    (1) If the Administrator determines that a substantial number of any 
class or category of engines, although properly maintained and used, do 
not conform to the regulations prescribed under section 213 of the Act 
when in actual use throughout their useful life (as defined under Sec. 
91.105(a)), the Administrator shall immediately notify the manufacturer 
of such nonconformity and require the manufacturer to submit a plan for 
remedying the nonconformity of the engines with respect to which such 
notification is given.
    (i) The manufacturer's plan shall provide that the nonconformity of 
any such engines which are properly used and maintained will be remedied 
at the expense of the manufacturer.
    (ii) If the manufacturer disagrees with such determination of 
nonconformity and so advises the Administrator, the Administrator shall 
afford the manufacturer and other interested persons an opportunity to 
present their views and evidence in support thereof at a public hearing. 
Unless, as a result of such hearing, the Administrator withdraws such 
determination of nonconformity, the Administrator shall, within 60 days 
after the completion of such hearing, order the manufacturer to provide 
prompt notification of such nonconformity in accordance with paragraph 
(a)(2) of this section. The manufacturer shall comply in all respects 
with the requirements of subpart I of this part.
    (2) Any notification required to be given by the manufacturer under 
paragraph (a)(1) of this section with respect to any class or category 
of engines shall be given to dealers, ultimate purchasers, and 
subsequent purchasers (if known) in such manner and containing such 
information as required in subparts I and J of this part.

[[Page 405]]

    (3)(i) The manufacturer shall furnish with each new engine written 
instructions for the proper maintenance and use of the engine by the 
ultimate purchaser as required under Sec. 91.1204. The manufacturer 
shall provide in boldface type on the first page of the written 
maintenance instructions notice that maintenance, replacement, or repair 
of the emission control devices and systems may be performed by any 
engine repair establishment or individual using any engine part which 
has been certified as provided in Sec. 91.1107(b).
    (ii) The instruction under paragraph (a)(3)(i) of this section must 
not include any condition on the ultimate purchaser's using, in 
connection with such engine, any component or service (other than a 
component or service provided without charge under the terms of the 
purchase agreement) which is identified by brand, trade, or corporate 
name. Subject instructions also must not directly or indirectly 
distinguish between service performed by the franchised dealers of such 
manufacturer, or any other service establishments with which such 
manufacturer has a commercial relationship, and service performed by 
independent engine repair facilities with which such manufacturer has no 
commercial relationship.
    (iii) The prohibition of paragraph (a)(3)(ii) of this section may be 
waived by the Administrator if:
    (A) The manufacturer satisfies the Administrator that the engine 
will function properly only if the component or service so identified is 
used in connection with such engine, and
    (B) The Administrator finds that such a waiver is in the public 
interest.
    (iv) In addition, the manufacturer shall indicate by means of a 
label or tag permanently affixed to the engine that the engine is 
covered by a certificate of conformity issued for the purpose of 
assuring achievement of emission standards prescribed under section 213 
of the Act. This label or tag shall also contain information relating to 
control of emissions as prescribed under Sec. 91.113.
    (b) The manufacturer bears all cost obligation a dealer incurs as a 
result of a requirement imposed by paragraph (a) of this section. The 
transfer of any such cost obligation from a manufacturer to a dealer 
through franchise or other agreement is prohibited.
    (c) If a manufacturer includes in an advertisement a statement 
respecting the cost or value of emission control devices or systems, the 
manufacturer shall set forth in the statement the cost or value 
attributed to these devices or systems by the Secretary of Labor 
(through the Bureau of Labor Statistics). The Secretary of Labor, and 
his or her representatives, has the same access for this purpose to the 
books, documents, papers, and records of a manufacturer as the 
Comptroller General has to those of a recipient of assistance for 
purposes 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 be made 
only if the owner of such vehicle or engine voluntarily permits such 
inspection to be made, except as may be provided by any state or local 
inspection program.



        Subpart M_Emission Warranty and Maintenance Instructions



Sec. 91.1201  Applicability.

    The requirements of this subpart M are applicable to all engines 
subject 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 in according 
to the following schedule.
    (1) For model years 1998-2000, and for MY 1997 engine families 
certified pursuant to Sec. 91.205, all emission related components 
shall be warranted for a period of one year of engine use.
    (2) For model years 2001-2003:
    (i) Emission related components shall be warranted for a period of 
one year of engine use.
    (ii) Specified major emission control components shall be warranted 
for a period of three years or 200 hours of engine use, whichever occurs 
first.

[[Page 406]]

    (3) For model years 2004 and beyond:
    (i) Emission-related components shall be warranted for a period of 
two years or 200 hours of engine use, whichever occurs first.
    (ii) Specified major emission control components shall be warranted 
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 to 
the ultimate purchaser and each subsequent purchaser, that the engine is 
designed, built, and equipped so as to conform at the time of sale with 
applicable regulations under section 213 of the Act, and the engine is 
free from defects in materials and workmanship which cause such engine 
to fail to conform with applicable regulations for its warranty period.
    (c) In the case of a marine SI engine part, the manufacturer or 
rebuilder of the part may certify according to Sec. 85.2112 ot this 
chapter that use of the part will not result in a failure of the engine 
to comply with emission standards promulgated in this part.
    (d) For the purposes of this section, the owner of any marine SI 
engine warranted under this part is responsible for the proper 
maintenance of the engine as stated in the manufacturer's written 
instructions. Proper maintenance generally includes replacement and 
service, at the owner's expense at a service establishment or facility 
of the owner's choosing, such items as spark plugs, points, condensers, 
and any other part, item, or device related to emission control (but not 
designed for emission control) under the terms of the last 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 ultimate 

purchaser.

    (a) The manufacturer must furnish or cause to be furnished to the 
ultimate purchaser of each new marine SI engine written instructions for 
the maintenance and use needed to assure proper functioning of the 
emission control system.
    (b) The manufacturer must provide in boldface type on the first page 
of the written maintenance instructions notice that maintenance, 
replacement, or repair of the emission control devices and systems may 
be performed by any marine SI engine repair establishment or individual.
    (c) The instructions under paragraph (a) of this section will not 
include any condition on the ultimate purchaser's using, in connection 
with such engine, any component or service (other than a component or 
service provided without charge under the terms of the purchase 
agreement) which is identified by brand, trade, or corporate name. Such 
instructions also will not directly or indirectly distinguish between 
service performed by the franchised dealers of such manufacturer or any 
other service establishments with which such manufacturer has a 
commercial relationship and service performed by independent marine 
engine repair facilities which such manufacturer has no commercial 
relationship.
    (d) The prohibition of paragraph (c) of this section may be waived 
by the Administrator if:
    (1) The manufacturer satisfies the Administrator that the engine 
will function properly only if the component or service so identified is 
used in connection with such engine, and
    (2) The Administrator finds that such a waiver is in the public 
interest.



         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 this 
part 91 are eligible to participate in the in-use credit program 
described 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-use emission 
credits among engine families within a given manufacturer's product 
line.
    Banking means the retention of marine engine in-use emission credits 
by the manufacturer generating the emission credits for use in future 
model

[[Page 407]]

year averaging or trading as permitted by these regulations.
    Carry-over engine family means an engine family which undergoes 
certification using carryover test data from previous model years. See 
Sec. 91.118(c).
    Emission credits or in-use credits represent the amount of emission 
reduction or exceedance, for each regulated pollutant, by a marine 
engine family below or above, respectively, the applicable certification 
family emission limit (FEL) to which the engine family is certified. 
Emission reductions below the FEL are considered ``positive credits,'' 
while emission exceedances above the FEL are considered ``negative or 
required credits.''
    Banked credits refer to positive emission credits based on actual 
applicable production/sales volume as contained in the end of model year 
in-use testing reports submitted to EPA. Some or all of these banked 
credits may be revoked if EPA review of the end of model year in-use 
testing reports or any subsequent audit action(s) uncovers problems or 
errors.
    Trading means the exchange of marine SI engine in-use emission 
credits between manufacturers and/or brokers.
    Compliance level for an engine family is determined by averaging the 
in-use test results from each engine.



Sec. 91.1303  General provisions.

    (a) The in-use credit program for eligible marine engines is 
described in this subpart. Participation in this program is voluntary.
    (b) A marine SI engine family is eligible to participate in the in-
use credit program if it is subject to regulation under subpart B of 
this part with certain exceptions specified in paragraph (c) of this 
section.
    (c) Marine SI engines may not participate in the in-use averaging, 
banking, and trading program if they are delivered to a ``point of first 
retail sale'' outside of the U.S., as defined in Sec. 91.202.
    (d) Credits generated and used in the marine engine certification 
averaging, banking, and trading program pursuant to the provisions of 
subpart C of this part are not interchangeable with credits generated 
and 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) of this 
section, below the applicable FEL to which the engine family is 
certified may generate emission credits for averaging, banking, or 
trading in the in-use credit program.
    (f) Positive credits generated in a given model year may be used in 
that model year and/or in any subsequent model year.
    (g) A manufacturer of an engine family with a compliance level 
exceeding the applicable FEL to which the engine family is certified, 
may, prior to the date of the report required under paragraph (j) of 
this section use previously banked credits, purchase credits from 
another manufacturer, or perform additional testing pursuant to 
paragraph (i) of this section to address (as calculated elsewhere in 
this subpart) the associated credit deficit (negative credits or a need 
for credits).
    (h) A manufacturer may carry-over an in-use credit deficit up to and 
including model year 2003. Beginning with model year 2004, all 
manufacturers must have a zero or positive credit balance.
    (i) A manufacturer must notify EPA of plans to test additional 
engine families beyond the maximum 25 percent required in subpart I of 
this part for the in-use testing program. Such notice must be submitted 
30 days prior to initiation of service accumulation. EPA may approve, 
with adequate justification, the use of an existing fleet for additional 
testing. If the additional testing discovers an engine family to be in 
noncompliance with the applicable FEL, the testing must be treated as if 
it were a failure of the normal in-use testing requirement of an engine 
family.
    (j) Manufacturers must demonstrate a zero or positive credit balance 
under the in-use credit program for a particular model year within 90 
days of the end of the in-use testing of that model year's engine 
families, or at the same time as the final certification AB&T report 
(required under Sec. 91.210), whichever is later.

[[Page 408]]



Sec. 91.1304  Averaging.

    (a) A manufacturer may use averaging across engine families to 
demonstrate a zero or positive credit balance for a model year. Positive 
credits to be used in averaging may be obtained from credits generated 
by another engine family of the same model year, credits banked in 
previous model years, or credits obtained through trading.
    (b) Beginning in model year 2004, credits used to demonstrate a zero 
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-use 
compliance level below the applicable FEL to which the engine family is 
certified for a given model year may bank positive in-use credits for 
that model year for use in in-use averaging and trading.
    (b) A manufacturer may consider credits banked 30 days after the 
submission of the report required by Sec. 91.1309(a). During the 30 day 
period EPA will work with the manufacturer to correct any error in 
calculating banked credits, if necessary.



Sec. 91.1306  Trading.

    (a) A marine engine manufacturer may exchange positive in-use 
emission credits with other marine engine manufacturers through trading.
    (b) In-use credits for trading can be obtained from credits banked 
for model years prior to the model year of the engine family requiring 
in-use credits.
    (c) Traded in-use credits can be used for averaging, banking, or 
further trading transactions.
    (d) Unless otherwise approved by EPA, a manufacturer that generates 
positive in-use credits must wait 30 days after it has both completed 
in-use testing for the model year for which the credits were generated 
and submitted the report required by Sec. 91.1309(a) before it may 
transfer credits to another manufacturer or broker.
    (e) In the event of a negative credit balance resulting from a 
transaction, both the buyer and the seller are liable, except in cases 
involving fraud. Engine families participating in a negative trade may 
be subject to recall under subpart I of this part.



Sec. 91.1307  Credit calculation.

    For each participating engine family, emission credits (positive or 
negative) are to be calculated according to the following equation and 
rounded, in accordance with ASTM E29-93a, to the nearest gram. ASTM E29-
93a has been incorporated by reference. See Sec. 91.6. Consistent units 
are to be used throughout the equation. The following equation is used 
to determine the credit status for an engine family whether generating 
positive or negative in-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 to the power 
rating and the application as given below.
[GRAPHIC] [TIFF OMITTED] TR04OC96.055

Power = the average power of an engine family in kW (sales weighted). 
The power of each configuration is the rated output in

[[Page 409]]

kilowatts as determined by SAE J1228. This procedure has been 
incorporated by reference. See Sec. 91.6.
t = time in model years
max useful life = maximum useful life specific to the power rating and 
the application; max useful life = 2[mu]life
sales = the number of eligible sales tracked to the point of first 
retail sale in the U.S. for the given engine family during the model 
year.
FEL = the family emission limit for the engine family in grams per 
kilowatt hour.
CL = compliance level of the in-use testing in g/kW-hr.
[mu]use = mean use in hours per year. For outboard engines, 
[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 credit 
program set forth in this subpart shall establish, maintain, and retain 
the records required by Sec. 91.209 with respect to its participation 
in the in-use credit program.
    (b) EPA may void ab initio a certificate of conformity for an engine 
family for which the manufacturer fails to retain the records required 
under this section or to provide such information to the Administrator 
upon request.



Sec. 91.1309  Reporting requirements.

    (a) Any manufacturer who participates in the in-use credit program 
is required to submit an end of the model year in-use testing report 
either within 90 days of the end of the model year in-use testing of a 
given model year's engine families, or at the same time as the final 
certification AB&T report (required under Sec. 91.210), whichever is 
later. The end of the model year in-use testing report must contain the 
required information and show the calculated credits from all the in-use 
testing conducted by the manufacturer for a given model year.
    (b) Reports shall be submitted to: Manager, Engine Compliance 
Programs 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 as required 
in paragraph (a) of this section will be considered to not have 
participated in the in-use credit program.
    (d) If EPA or the manufacturer determines that a reporting error 
occurred on an end of model year report previously submitted to EPA 
under this subpart, or an engine family in-use testing report submitted 
to EPA under subpart I, the manufacturer's credits and credit 
calculations will be recalculated. Erroneous positive credits will be 
void. Erroneous negative credits may be adjusted by EPA. An update of 
previously submitted ``point of first retail sale'' information is not 
considered an error and no increase in the number of credits will be 
allowed unless an actual error occurred in the calculation of credits 
due to an error in the ``point of first retail sale'' information from 
the time of the original end of model year report.



Sec. 91.1310  Notice of opportunity for hearing.

    Any voiding of an engine family's certificate of conformity under 
Sec. 91.1308(b) of this subpart will occur only after the manufacturer 
concerned has been offered an opportunity for a hearing conducted in 
accordance with Sec. Sec. 91.512, 91.513, 91.514 and 91.515.



PART 92_CONTROL OF AIR POLLUTION FROM LOCOMOTIVES AND LOCOMOTIVE ENGINES--

Table of Contents




 Subpart A_General Provisions for Emission Regulations for Locomotives 
                         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 extraordinary circumstances.
92.12 Interim provisions.

[[Page 410]]

                        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 analytical system.
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 or remanufacturers.
92.210 Amending the application and certificate of conformity.
92.211 Emission-related maintenance instructions for purchasers.
92.212 Labeling.
92.213 Submission of locomotive and engine identification numbers.
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 Trading Provisions

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 provisions preserved.
92.408 Disclaimer of production warranty applicability.

 Subpart F_Manufacturer and Remanufacturer Production Line Testing 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 audit requirements.
92.512 Suspension and revocation of certificates of conformity.
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 411]]

92.605 General testing requirements.
92.606 Maintenance, procurement and testing of in-use locomotives.
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 of nonconformity; 
          submission of remedial plan.
92.705 Remedial plan.
92.706 Approval of plan: Implementation.
92.707 Notification to locomotive or locomotive engine owners.
92.708 Records and reports.
92.709 Public hearings.

   Subpart I_Importation of Nonconforming Locomotives and Locomotive 
                                 Engines

92.801 Applicability.
92.802 Definitions.
92.803 Admission.
92.804 Exemptions.
92.805 Prohibited acts; penalties.

              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 exemption and 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 Operators of 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 Prohibited Acts

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 Locomotive and Engine Parameters 
          and Specifications
Appendix II to Part 92--Interpretive Ruling for Sec. 92.705--Remedial 
          Plans
Appendix III to Part 92--Smoke Standards for Non-normalized Measurements
Appendix IV to Part 92--Guidelines for Determining Equivalency Between 
          Emission Measurement Systems

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

    Source: 63 FR 18998, Apr. 16, 1998, unless otherwise noted.



 Subpart A_General Provisions for Emission Regulations for Locomotives 
                         and Locomotive Engines



Sec. 92.1  Applicability.

    (a) Except as noted in paragraphs (b), (d) and (e) of this section, 
the provisions of this part apply to manufacturers, remanufacturers, 
owners and operators of:
    (1) Locomotives and locomotive engines manufactured on or after 
January 1, 2000; and
    (2) Locomotives and locomotive engines manufactured on or after 
January 1, 1973 and remanufactured on or after January 1, 2000; and
    (3) Locomotives and locomotive engines manufactured prior to January 
1, 1973, and upgraded on or after January 1, 2000.
    (b) The requirements and prohibitions of this part do not apply with 
respect to:
    (1) Steam locomotives, as defined in Sec. 92.2;
    (2) Locomotives powered solely by an external source of electricity;
    (3) Locomotive engines which provide only hotel power (see 40 CFR 
parts 89 and 1039 to determine if such engines are subject to EPA 
emission requirements); or
    (4) Nonroad vehicles excluded from the definition of locomotive in 
Sec. 92.2, and the engines used in such nonroad vehicles (see 40 CFR 
parts 86, 89, and

[[Page 412]]

1039 to determine if such vehicles or engines are subject to EPA 
emission requirements).
    (c) For cases in which there are multiple entities meeting the 
definition of manufacturer or remanufacturer, see Sec. 92.209 for 
guidance.
    (d) The provisions of subpart L of this part apply to all persons.
    (e) The provisions of this part do not apply for locomotives that 
are subject to the emissions standards of 40 CFR part 1033.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40452, July 13, 2005; 
73 FR 37194, June 30, 2008]



Sec. 92.2  Definitions.

    (a) The definitions of this section apply to this subpart. They also 
apply to all subparts of this part, except where noted otherwise.
    (b) As used in this part, all terms not defined in this section 
shall have the meaning given them in the Act:
    Act means the Clean Air Act as amended (42 U.S.C. 7401 et seq.).
    Administrator means the Administrator of the Environmental 
Protection Agency or his/her authorized representative.
    Aftertreatment system or aftertreatment component or aftertreatment 
technology means any system or component or technology mounted 
downstream of the exhaust valve or exhaust port whose design function is 
to reduce exhaust emissions.
    Alcohol fuel means a fuel consisting primarily (more than 50 percent 
by weight) of one or more alcohols: e.g., methyl alcohol, ethyl alcohol.
    Alternator/generator efficiency means the ratio of the electrical 
power output from the alternator/generator to the mechanical power input 
to the alternator/generator at the operating point.
    Alternator/generator input horsepower means the mechanical 
horsepower input to the main alternator or generator of a locomotive. 
For the purpose of calculating brake horsepower, alternator/generator 
input horsepower does not include any power used to circulate engine 
coolant, circulate engine lubricant, or to supply fuel to the engine.
    Applicable standard means a standard to which a locomotive or 
locomotive engine is subject; or, where a locomotive or locomotive 
engine is certified another standard or FEL, applicable standard means 
the other standard or FEL to which the locomotive or locomotive engine 
is certified, as allowed by Sec. 92.8. This definition does not apply 
to subpart D of this part.
    Auxiliary emission control device (AECD) means any element of design 
which senses temperature, locomotive speed, engine RPM, atmospheric 
pressure, manifold pressure or vacuum, or any other parameter for the 
purpose of activating, modulating, delaying, or deactivating the 
operation of any part of the emission control system (including, but not 
limited to injection timing); or any other feature that causes in-use 
emissions to be higher than those measured under test conditions, except 
as allowed by this part.
    Auxiliary engine means a locomotive engine that provides hotel 
power, but does not provide power to propel the locomotive.
    Auxiliary power means the power provided by the main propulsion 
engine to operate accessories such as cooling fans.
    Averaging for locomotives and locomotive engines means the exchange 
of emission credits among engine families within a given manufacturer's, 
or remanufacturer's, product line.
    Banking means the retention of emission credits by a credit holder 
for use in future calendar year averaging or trading as permitted by the 
regulations in this part.
    Brake horsepower means the sum of the alternator/generator input 
horsepower and the mechanical accessory horsepower, excluding any power 
used to circulate engine coolant, circulate engine lubricant, or to 
supply fuel to the engine.
    Calibration means the set of specifications, including tolerances, 
specific to a particular design, version, or application of a component, 
or components, or assembly capable of functionally describing its 
operation over its working range. This definition does apply to Subpart 
B of this part.
    Class I freight railroad means a Class I railroad that primarily 
transports freight rather than passengers.

[[Page 413]]

    Class I railroad means a railroad that has been classified as a 
Class I railroad by the Surface Transportation Board.
    Class II railroad means a railroad that has been classified as a 
Class II railroad by the Surface Transportation Board.
    Class III railroad means a railroad that has been classified as a 
Class III railroad by the Surface Transportation Board.
    Configuration means any subclassification of an engine family which 
can be described on the basis of gross power, emission control system, 
governed speed, injector size, engine calibration, and other parameters 
as designated by the Administrator.
    Crankcase emissions means emissions to the atmosphere from any 
portion of the crankcase ventilation or engine lubrication systems.
    Defeat device means an AECD or other control feature that reduces 
the effectiveness of the emission control system under conditions which 
may reasonably be expected to be encountered in normal locomotive 
operation and use, unless the AECD or other control feature has been 
identified by the certifying manufacturer or remanufacturer in the 
application for certification, and:
    (1) Such conditions are substantially represented by the portion of 
the federal test procedure during which the applicable emission rates 
are measured;
    (2) The need for the AECD is justified in terms of protecting the 
locomotive or locomotive engine against damage or accident; or
    (3) The AECD does not go beyond the requirements of engine starting.
    Deterioration factor means the difference between exhaust emissions 
at the end of useful life and exhaust emissions at the low mileage test 
point expressed as either: the ratio of exhaust emissions at the end of 
useful life to exhaust emissions at the low mileage test point (for 
multiplicative deterioration factors); or the difference between exhaust 
emissions at the end of useful life exhaust emissions at the low mileage 
test point (for additive deterioration factors).
    Diesel fuel means any fuel suitable for use in diesel engines, and 
which is commonly or commercially known or sold as diesel fuel.
    Emission control system means those devices, systems or elements of 
design which control or reduce the emission of substances from an 
engine. This includes, but is not limited to, mechanical and electronic 
components and controls, and computer software.
    Emission credits represent the amount of emission reduction or 
exceedance, by a locomotive engine family, below or above the emission 
standard, respectively. Emission reductions below the standard are 
considered as ``positive credits,'' while emission exceedances above the 
standard are considered as ``negative credits.'' In addition, 
``projected credits'' refer to emission credits based on the projected 
applicable production/sales volume of the engine family. ``Reserved 
credits'' are emission credits generated within a calendar year waiting 
to be reported to EPA at the end of the calendar year. ``Actual 
credits'' refer to emission credits based on actual applicable 
production/sales volume as contained in the end-of-year reports 
submitted to EPA.
    Emission-data engine means an engine which is tested for purposes of 
emission certification or production line testing.
    Emission-data locomotive means a locomotive which is tested for 
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 the approved 
Application for certification which affects any parameter or 
specification enumerated in Appendix I of this part.
    Emission-related maintenance means that maintenance which 
substantially affects emissions or which is likely to affect the 
deterioration 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 locomotive engine 
configurations which are expected to have similar emission 
characteristics throughout the useful lives of the locomotives and 
engines (see Sec. 92.204), and which are (or were) covered (or 
requested to be

[[Page 414]]

covered) by a specific certificate of conformity.
    Engine used in a locomotive means an engine incorporated into a 
locomotive or intended for incorporation into a locomotive.
    Engineering analysis means a summary of scientific and/or 
engineering principles and facts that support a conclusion made by a 
manufacturer or remanufacturer, with respect to compliance with the 
provisions of this part.
    EPA Enforcement Officer means any officer or employee of the 
Environmental Protection Agency so designated in writing by the 
Administrator or his/her designee.
    Ethanol means a fuel that contains at least 50 percent ethanol 
(ethyl alcohol, (C2H5OH)) by volume.
    Exhaust emissions means substances (i.e., gases and particles) 
emitted to the atmosphere from any opening downstream from the exhaust 
port or exhaust valve of a locomotive engine.
    Family Emission Limit means an emission level declared by the 
certifying manufacturer or remanufacturer to serve in lieu of an 
otherwise applicable emission standard for certification and compliance 
purposes in the averaging, banking and trading program. FELs are 
expressed to the same number of decimal places as the applicable 
emission standard.
    Freshly manufactured locomotive means a locomotive which is powered 
by a freshly manufactured engine, and which contains fewer than 25 
percent previously used parts (weighted by the dollar value of the 
parts). See 40 CFR 1033.640 for information about how to calculate this.
    Freshly manufactured locomotive engine means a new locomotive engine 
which has not been remanufactured.
    Fuel system means the combination of fuel tank(s), fuel pump(s), 
fuel lines and filters, pressure regulator(s), and fuel injection 
components (or pressure regulator(s) and carburetor(s) if fuel injection 
is not employed), fuel system vents, and any other component involved in 
the delivery of fuel to the engine.
    Gaseous fuel means a fuel which is a gas at standard temperature and 
pressure. This includes both natural gas and liquefied petroleum gas.
    Green engine factor means a factor that is applied to emission 
measurements from a locomotive or locomotive engine that has had little 
or no service accumulation. The green engine factor adjusts emission 
measurements to be equivalent to emission measurements from a locomotive 
or locomotive engine that has had approximately 300 hours of use.
    High-altitude means relating to an altitude greater than 4000 feet 
(1220 meters) and less than 7000 feet (2135 meters), or equivalent 
observed barometric test conditions of 25.7 to 22.7 inch Hg (88.5 to 
78.1 kilopascals).
    Hotel power means the power provided by an engine on a locomotive to 
operate equipment on passenger cars of a train; e.g., heating and air 
conditioning, lights, etc.
    Idle speed means that speed, expressed as the number of revolutions 
of the crankshaft per unit of time (e.g., rpm), at which the engine is 
set to operate when not under load for purposes of propelling the 
locomotive.
    Importer means an entity or person who imports locomotives or 
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 previously used 
component or system meets all applicable criteria listed for the 
component or system in a certificate of conformity for remanufacturing 
(e.g., determine that the component or system is functionally equivalent 
to one that has not been used previously).
    Installer means an individual or entity which assembles 
remanufactured locomotives or locomotive engines.
    Liquefied petroleum gas means the commercial product marketed as 
liquefied petroleum gas or propane.
    Locomotive means a self-propelled piece of on-track equipment 
designed for moving or propelling cars that are designed to carry 
freight, passengers or other equipment, but which itself is not designed 
or intended to carry freight, passengers (other than those operating the 
locomotive) or other

[[Page 415]]

equipment. The following other equipment are not locomotives (see 40 CFR 
parts 86 and 89 for this equipment):
    (1) Equipment which is designed for operation both on highways and 
rails are not locomotives.
    (2) Specialized railroad equipment for maintenance, construction, 
post accident recovery of equipment, and repairs; and other similar 
equipment, are not locomotives.
    (3) Vehicles propelled by engines with total rated horsepower of 
less than 750 kW (1006 hp) are not locomotives (see 40 CFR parts 86 and 
89 for this equipment), unless the owner (including manufacturers) 
chooses to have the equipment certified under the requirements of this 
part. Where equipment is certified as a locomotive pursuant to this 
paragraph (3), it shall be subject to the requirements of this part for 
the remainder of its service life. For locomotives propelled by two or 
more engines, the total rated horsepower is the sum of the rated 
horsepowers of each engine.
    Locomotive engine means an engine incorporated into a locomotive or 
intended for incorporation into a locomotive.
    Low hour engine means an engine during the interval between the time 
that normal assembly operations and adjustments are completed and 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 idle speed, 
expressed as the number of revolutions of the crankshaft per unit of 
time, at which an engine can be set when not under load for purposes of 
propelling the locomotive.
    Low mileage locomotive means a locomotive during the interval 
between the time that normal assembly operations and adjustments are 
completed and the time that either 10,000 miles of locomotive operation 
or 300 additional operating hours have been accumulated (including 
emission testing if performed).
    Malfunction means a condition in which the operation of a component 
in a locomotive or locomotive engine occurs in a manner other than that 
specified by the certifying manufacturer or remanufacturer (e.g., as 
specified in the application for certification); or the operation of the 
locomotive or locomotive engine in that condition.
    Manufacturer means an individual or entity engaged in the 
manufacturing or assembling of freshly manufactured locomotives or 
freshly manufactured locomotive engines; or the importing of locomotives 
or locomotive engines originally manufactured on or after January 1, 
1973 and not remanufactured. (See Sec. Sec. 92.1(c) and 92.209 for 
applicability of this term.)
    Maximum rated horsepower means the maximum brake horsepower output 
of an engine.
    Mechanical accessory horsepower means the sum of mechanical 
horsepower generated by an engine to supply accessories. Mechanical 
accessory horsepower does not include power supplied to the main 
alternator or generator, power used to circulate engine coolant or 
engine lubricant, or power used to supply fuel to the engine.
    Methanol means a fuel that contains at least 50 percent methanol 
(methyl alcohol, (CH3OH)) by volume.
    Method of aspiration means the method whereby air for fuel 
combustion enters the engine (e.g., natural or turbocharged).
    Model year means a calendar year; except where the Administrator 
determines a different production period which includes January 1 of 
such calendar year.
    Natural gas means the commercial product marketed as natural gas 
whose primary constituent is methane.
    New locomotive or new locomotive engine means:
    (1)(i) A locomotive or locomotive engine the equitable or legal 
title to which has never been transferred to an ultimate purchaser; or
    (ii) A locomotive or locomotive engine which has been 
remanufactured, but has not been placed back into service.
    (2) Where the equitable or legal title to a locomotive or locomotive 
engine is not transferred prior to its being placed into service, the 
locomotive or locomotive engine ceases to be new when it is placed into 
service.

[[Page 416]]

    (3) With respect to imported locomotives or locomotive engines, the 
term ``new locomotive'' or ``new locomotive engine'' means a locomotive 
or locomotive engine that is not covered by a certificate of conformity 
under this part at the time of importation, and that was manufactured or 
remanufactured after the effective date of the emission standards in 
this part which is applicable to such locomotive or engine (or which 
would be applicable to such locomotive or engine had it been 
manufactured or remanufactured for importation into the United States).
    (4) Notwithstanding paragraphs (1) through (3) of this definition, 
locomotives and locomotive engines which were originally manufactured 
before 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 railroad 
and which have never been manufactured or remanufactured into a 
certified configuration are not new.
    Nonconforming locomotive or nonconforming locomotive engine means a 
locomotive or locomotive engine which is not covered by a certificate of 
conformity prior to importation or being offered for importation (or for 
which such coverage has not been adequately demonstrated to EPA); or a 
locomotive or locomotive engine which was originally covered by a 
certificate of conformity, but which is not in a certified 
configuration, or otherwise does not comply with the conditions of that 
certificate of conformity.
    (Note: Domestic locomotives and locomotive engines which are not 
covered by a certificate of conformity prior to their introduction into 
U.S. commerce are considered to be noncomplying locomotives and 
locomotive engines.)
    Non-locomotive-specific engine means an engine that is sold for and 
used in non-locomotive applications more than for locomotive 
applications.
    Normal idle means relating to the idle throttle-notch position for 
locomotives that have one throttle-notch position, or the highest the 
idle throttle-notch position for locomotives that have two throttle-
notch positions.
    Opacity means the fraction of a beam of light, expressed in percent, 
which fails to penetrate a plume of smoke as measured and calculated 
under the provisions of subpart B of this part.
    Original manufacture means the event of freshly manufacturing a 
locomotive or locomotive engine. The date of original manufacture is the 
date of final assembly; except as provided in Sec. 92.11. Where a 
locomotive or locomotive engine is manufactured under Sec. 92.11, the 
date of original manufacture is the date on which the final assembly of 
locomotive or locomotive engine was originally scheduled.
    Original remanufacture means the first remanufacturing of a 
locomotive or locomotive engine at which the locomotive or locomotive 
engines 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 oxide were in 
the form of nitrogen dioxide (oxides of nitrogen are assumed to have a 
molecular weight equivalent to nitrogen dioxide).
    Passenger locomotive means a locomotive designed and constructed for 
the primary purpose of propelling passenger trains, and providing power 
to the passenger cars of the train for such functions as heating, 
lighting and air conditioning.
    Petroleum fuel means a fuel primarily derived from crude oil (e.g., 
gasoline or diesel fuel).
    Power assembly means the components of an engine in which combustion 
of fuel occurs, and consists of the cylinder, piston and piston rings, 
valves and ports for admission of charge air and discharge of exhaust 
gases, fuel injection components and controls, cylinder head and 
associated components.
    Primary fuel means that type of fuel (e.g., diesel fuel) that is 
consumed in the greatest quantity (mass basis) when the locomotive or 
locomotive engine is operated in use.
    Produce means to manufacture or remanufacture. Where a certificate 
holder does not actually assemble the locomotives or locomotive engines 
that it manufactures or remanufactures, produce means to allow other 
entities to assemble locomotives or locomotive engines under the 
certificate holder's certificate.

[[Page 417]]

    Railroad means a commercial entity that operates locomotives to 
transport passengers or freight.
    Rated horsepower means the maximum horsepower output of a locomotive 
engine in use.
    Remanufacture means:
    (1)(i) To replace, or inspect and qualify, each and every power 
assembly of a locomotive or locomotive engine, whether during a single 
maintenance 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 to 
operate using a fuel other than it was originally manufactured to use; 
or
    (iv) To install a remanufactured engine or a freshly manufactured 
engine into a previously used locomotive.
    (2) Remanufacture also means the act of remanufacturing.
    Remanufacture system or remanufacturing system means all components 
(or specifications for components) and instructions necessary to 
remanufacture a locomotive or locomotive engine in accordance with 
applicable requirements of this part.
    Remanufactured locomotive means either a locomotive which is powered 
by a remanufactured locomotive engine, or a repowered locomotive.
    Remanufactured locomotive engine means a locomotive engine which has 
been remanufactured.
    Remanufacturer means an individual or entity that is engaged in the 
manufacture or assembly of remanufactured locomotives or locomotive 
engines, (including: Entities that design or produce the emission-
related parts used in remanufacturing; entities that install parts in an 
existing locomotive or locomotive engine to remanufacture it; and 
entities that own or operate the locomotive or locomotive engine and 
provide specifications as to how an engine is to be remanufactured 
(i.e., specifying who will perform the work, when the work is to be 
performed, what parts are to be used, or how to calibrate the adjustable 
parameters of the engine)); or an importer of remanufactured locomotives 
or locomotive engines. (See Sec. Sec. 92.1(c) and 92.209 for 
applicability of this term.)
    Repower means replacement of the engine in a previously used 
locomotive with a freshly manufactured locomotive engine. Replacing a 
locomotive engine with a freshly manufactured locomotive engine in a 
locomotive that has a refurbished or reconditioned chassis such that 
less than 25 percent of the parts of the locomotive were previously used 
(as weighted by dollar value) is not repowering.
    Repowered locomotive means a locomotive that has been repowered with 
a freshly manufactured engine.
    Service life means the total life of a locomotive or locomotive 
engine. Service life begins when the locomotive or locomotive engine is 
originally manufactured and continues until the locomotive or locomotive 
engine is permanently removed from service.
    Small railroad means a railroad that is classified by the Small 
Business Administration as a small business.
    Small remanufacturer means a remanufacturer that is classified by 
the Small Business Administration as a small business.
    Smoke means the matter in the engine exhaust which obscures the 
transmission of light.
    Specified adjustable range means the range of allowable settings for 
an adjustable component specified by a certificate of conformity.
    Specified by a certificate of conformity or specified in a 
certificate of conformity means stated or otherwise specified in a 
certificate of conformity or an approved application for certification.
    Steam locomotive means a historic locomotive propelled by a steam 
engine.
    Switch locomotive means a locomotive designed or used solely for the 
primary purpose of propelling railroad cars a short distance, and that 
is powered by an engine with a maximum horsepower rating of 2300 hp or 
less.
    Test locomotive or locomotive engine means a locomotive or 
locomotive engine in a test sample.
    Test sample means the collection of locomotives or locomotive 
engines selected from the population of an engine family for emission 
testing or auditing.
    Throttle means the component, or components, which either directly 
or indirectly controls the fuel flow to the engine.

[[Page 418]]

    Throttle notch means a discrete throttle position for a locomotive 
with a limited number of throttle positions.
    Throttle notch horsepower means the brake horsepower output of an 
engine corresponding to each throttle notch position, including dynamic-
brake settings.
    Throttle notch speed means the speed of the engine, expressed as the 
number of revolutions of the crankshaft per unit of time (e.g., rpm), 
corresponding to each throttle notch position, including dynamic-brake, 
and hotel power settings.
    Tier 0 means relating to emission standards applicable to 
locomotives originally manufactured before January 1, 2002; or relating 
to such locomotives.
    1 means relating to emission standards applicable to locomotives 
originally manufactured on or after January 1, 2002 and before January 
1, 2005; or relating to such locomotives.
    Tier 2 means relating to emission standards applicable to 
locomotives originally manufactured on or after January 1, 2005; or 
relating to such locomotives.
    Total Hydrocarbon Equivalent means the sum of the carbon mass 
contributions of non-oxygenated hydrocarbons, alcohols and aldehydes, or 
other organic compounds that are measured separately as contained in a 
gas sample, expressed as gasoline-fueled vehicle hydrocarbons. The 
hydrogen-to-carbon ratio of the equivalent hydrocarbon is 1.85:1. Total 
Hydrocarbon Equivalent is abbreviated THCE.
    Trading means the exchange of locomotive or locomotive engine 
emission credits between credit holders.
    United States means the States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, Guam, American Samoa, and the U.S. Virgin Islands.
    Upgrade means to modify a locomotive or locomotive engine that was 
originally manufactured prior to January 1, 1973 (or a locomotive or 
locomotive engine that was originally manufactured on or after January 
1, 1973, and that is not subject to the emission standards of this 
part), such that it is intended to comply with the Tier 0 standards. 
Upgrading is a type of remanufacturing.
    Useful life means the period during which the locomotive engine is 
designed to properly function in terms of reliability and fuel 
consumption, without being remanufactured, specified as work output or 
miles. It is the period during which a new locomotive or locomotive 
engine is required to comply with all applicable emission standards.
    Volatile liquid fuel means any liquid fuel other than diesel or 
biodiesel.
    Voluntary emission recall means a repair, adjustment, or 
modification program voluntarily initiated and conducted by a 
manufacturer or remanufacturer to remedy any emission-related defect for 
which notification of locomotive or locomotive engine owners has been 
provided.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40453, July 13, 2005; 
73 FR 37194, June 30, 2008]



Sec. 92.3  Abbreviations.

    The abbreviations of this section apply to all subparts of this part 
and have the following meanings:

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

[[Page 419]]

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 all 
of the information submitted pursuant to this part is entitled to 
confidential treatment as provided by 40 CFR part 2, subpart B.
    (b) Any claim of confidentiality must accompany the information at 
the time it is submitted to EPA.
    (c) To assert that information submitted pursuant to this part is 
confidential, a person or manufacturer or remanufacturer must indicate 
clearly the items of information claimed confidential by marking, 
circling, bracketing, stamping, or otherwise specifying the confidential 
information. Furthermore, EPA requests, but does not require, that the 
submitter also provide a second copy of its submittal from which all 
confidential information has been deleted. If a need arises to publicly 
release nonconfidential information, EPA will assume that the submitter 
has accurately deleted the confidential information from this second 
copy.
    (d) If a claim is made that some or all of the information submitted 
pursuant to this part is entitled to confidential treatment, the 
information covered by that confidentiality claim will be disclosed by 
EPA only to the extent and by means of the procedures set forth in 40 
CFR part 2, subpart B.
    (e) Information provided without a claim of confidentiality at the 
time of submission may be made available to the public by EPA without 
further 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 been 
incorporated by reference. The incorporation by reference was approved 
by the Director of the Federal Register in accordance with 5 U.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 Archives and 
Records Administration (NARA). For information on the availability of 
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 material that 
has been incorporated by reference in this part:
    (1) ASTM material. The following table sets forth material from the 
American Society for Testing and Materials that has been incorporated by 
reference. The first column lists the number and name of the material. 
The second column lists the section(s) of the part, other than this 
section, in which the matter is referenced. The second column is 
presented for information only and may not be all inclusive. More recent 
versions of these standards may be used with advance approval of the 
Administrator. Copies

[[Page 420]]

of these materials may be obtained from American Society for Testing and 
Materials, 1916 Race St., Philadelphia, PA 19103. The table follows:

------------------------------------------------------------------------
          Document number and name             40 CFR part 92 reference
------------------------------------------------------------------------
ASTM D 86-95, Standard Test Method for       Sec.  92.113
 Distillation of Petroleum Products.
ASTM D 93-94, Standard Test Methods for      Sec.  92.113
 Flash-Point by Pensky-Martens Closed Cup
 Tester.
ASTM D 287-92, Standard Test Method for API  Sec.  92.113
 Gravity of Crude Petroleum and Petroleum
 Products (Hydrometer Method).
ASTM D 445-94, Standard Test Method for      Sec.  92.113
 Kinematic Viscosity of Transparent and
 Opaque Liquids (the Calculation of Dynamic
 Viscosity).
ASTM D 613-95, Standard Test Method for      Sec.  92.113
 Cetane Number of Diesel Fuel Oil.
ASTM D 976-91, Standard Test Method for      Sec.  92.113
 Calculated Cetane Index of Distillate
 Fuels.
ASTM D 1319-95, Standard Test Method for     Sec.  92.113
 Hydrocarbon Types in Liquid Petroleum
 Products by Fluorescent Indicator
 Adsorption.
ASTM D 1945-91, Standard Test Method for     Sec.  92.113
 Analysis of Natural Gas by Gas
 Chromatography.
ASTM D 2622-94, Standard Test Method for     Sec.  92.113
 Sulfur in Petroleum Products by X-Ray
 Spectrometry.
ASTM D 5186-91, Standard Test Method for     Sec.  92.113
 Determination of Aromatic Content of
 Diesel Fuels by Supercritical Fluid
 Chromatography.
ASTM E 29-93a, Standard Practice for Using   Sec. Sec.  92.9, 92.305,
 Significant Digits in Test Data to           92.509
 Determine Conformance with Specifications.
------------------------------------------------------------------------

    (2) SAE material. The following table sets forth material from the 
Society of Automotive Engineers that has been incorporated by reference. 
The first column lists the number and name of the material. The second 
column lists the section(s) of the part, other than this section, in 
which the matter is referenced. The second column is presented for 
information only and may not be all inclusive. Copies of these materials 
may be obtained from Society of Automotive Engineers International, 400 
Commonwealth Dr., Warrendale, PA 15096-0001. The table follows:

------------------------------------------------------------------------
          Document number and name             40 CFR part 92 reference
------------------------------------------------------------------------
SAE Paper 770141, Optimization of a Flame     Sec.  92.119
 Ionization Detector for Determination of
 Hydrocarbon in Diluted Automotive Exhausts,
 by Glenn D. Reschke.
SAE Recommended Practice J244, Measurement    Sec.  92.108
 of Intake Air or Exhaust Gas Flow of Diesel
 Engines.
------------------------------------------------------------------------

    (3) ANSI material. The following table sets forth material from the 
American National Standards Institute that has been incorporated by 
reference. The first column lists the number and name of the material. 
The second column lists the section(s) of the part, other than this 
section, in which the matter is referenced. The second column is 
presented for information only and may not be all inclusive. More recent 
versions of these standards may be used with advance approval of the 
Administrator. Copies of these materials may be obtained from American 
National Standards Institute, 11 West 42nd St., 13th Floor, New York, NY 
10036. The table follows:

------------------------------------------------------------------------
          Document number and name             40 CFR part 92 reference
------------------------------------------------------------------------
ANSI B109.1-1992, Diaphragm Type Gas         Sec.  92.117
 Displacment Meters.
------------------------------------------------------------------------



Sec. 92.6  Regulatory structure.

    This section provides an overview of the regulatory structure of 
this part.
    (a) The regulations of this part 92 are intended to control 
emissions from in-use locomotives. Because locomotive chassis and 
locomotive engines are sometimes manufactured or remanufactured 
separately, the regulations in this part include some provisions that 
apply specifically to locomotive engines. However, the use of the term 
``locomotive engine'' in the regulations in this part does not limit in 
any manner the liability of any manufacturer or remanufacturer for the 
emission performance of a locomotive powered by an engine that it has 
manufactured or remanufactured.
    (b) The locomotives and locomotive engines for which the regulations 
of this part (i.e., 40 CFR part 92) apply are specified by Sec. 92.1, 
and by the definitions of Sec. 92.2. The point at which a locomotive or 
locomotive engine becomes subject to the regulations of this part is 
determined by the definition of ``new locomotive or new locomotive 
engine'' in Sec. 92.2. Subpart J of this part contains provisions 
exempting certain locomotives or locomotive engines from the regulations 
in this part under special circumstances.

[[Page 421]]

    (c) To comply with the requirements of this part, a manufacturer or 
remanufacturer must demonstrate to EPA that the locomotive or locomotive 
engine meets the applicable standards of Sec. Sec. 92.7 and 92.8, and 
all other requirements of this part. The requirements of this 
certification process are described in subparts C and D of this part.
    (d) Subpart B of this part specifies procedures and equipment to be 
used for conducting emission tests for the purpose of the regulations of 
this part.
    (e) Subparts E, F, G, and H of this part specify requirements for 
manufacturers and remanufacturers after certification; that is during 
production and use of the locomotives and locomotive engines.
    (f) Subpart I of this part contains requirements applicable to the 
importation of locomotives and locomotive engines.
    (g) Subpart K of this part contains requirements applicable to the 
owners and operators of locomotives and locomotive engines.
    (h) Subpart L of this part describes prohibited acts and contains 
other enforcement provisions relating to locomotives and locomotive 
engines.
    (i) Unless specified otherwise, the provisions of this part apply to 
all locomotives and locomotive engines subject to the emission standards 
of this part.



Sec. 92.7  General standards.

    (a) Locomotives and locomotive engines may not be equipped with 
defeat devices.
    (b) New locomotives fueled with a volatile fuel shall be designed to 
minimize evaporative emissions during normal operation, including 
periods when the engine is shut down.
    (c)(1) Locomotive hardware for refueling locomotives fueled with a 
volatile fuel shall be designed so as to minimize the escape of fuel 
vapors.
    (2) Hoses used to refuel gaseous-fueled locomotives shall not be 
designed to be bled or vented to the atmosphere under normal operating 
conditions.
    (3) No valves or pressure relief vents shall be used on gaseous-
fueled locomotives except as emergency safety devices, and these shall 
not operate at normal system operating flows and pressures.
    (d) All new locomotives and new locomotive engines subject to any of 
the standards imposed by this subpart shall, prior to sale, introduction 
into service, or return to service, be designed to include features that 
compensate for changes in altitude to ensure that the locomotives or 
locomotive engines will comply with the applicable emission standards 
when operated at any altitude less than 7000 feet above sea level.



Sec. 92.8  Emission standards.

    (a) Exhaust standards. Exhaust emissions from locomotives and 
locomotive engines, when measured in accordance with the provisions of 
Subpart B of this part, shall comply with both the applicable line-haul 
duty-cycle standards, and the applicable switch duty-cycle standards of 
paragraph (a)(1) (and/or the standards of paragraphs (a)(3) and (a)(4) 
of this section, as applicable) of this section, and the smoke standards 
of paragraph (a)(2) of this section. Emissions that do not exceed the 
standards comply with the standards.
    (1) Gaseous and particulate standards. Gaseous and particulate 
emission standards are expressed as gram per brake horsepower hour (g/
bhp-hr). Non-methane hydrocarbon standards apply to locomotives and 
locomotive engines fueled with natural gas, and any combination of 
natural gas and other fuels where natural gas is the primary fuel; total 
hydrocarbon equivalent standards apply to locomotives and locomotive 
engines fueled with an alcohol, and any combination of alcohol and other 
fuels where alcohol is the primary fuel. Total hydrocarbon standards 
apply to all other locomotives and locomotive engines; that is, those 
not fueled by natural gas or alcohol. The line-haul duty-cycle standards 
and switch duty-cycle standards apply to the respective cycle-weighted 
emission rates as calculated in subpart B of this part.
    (i) Tier 0. The following locomotives (and the engines used in the 
following locomotives) are subject to the Tier 0 emission standards 
listed in table A8-1 of this section: Locomotives manufactured on, or 
after, January 1, 1973, and

[[Page 422]]

before January 1, 2002; and upgraded locomotives manufactured prior to 
January 1, 1973. The standards apply when such a locomotive or 
locomotive engine is manufactured, remanufactured, or imported on or 
after January 1, 2002; except where the locomotive was previously 
certified to one or more FELs under subpart D of this part instead of 
the applicable standards, in which case, the applicable standards are 
replaced at each subsequent remanufacture by the FELs specified by the 
previous certificate. Example: a locomotive that is certified to a 
NOX FEL of 8.0 g/bhp-hr must be recertified to a 
NOX 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 locomotives 
manufactured on, or after, January 1, 2002, and before January 1, 2005 
are subject to the Tier 1 standards listed in table A8-2 of this 
section. The standards apply when such a locomotive or locomotive engine 
is manufactured or imported, and each time it is remanufactured; except 
where the locomotive was previously certified to one or more FELs under 
subpart D of this part instead of the applicable standard, in which 
case, the standards are replaced at each subsequent remanufacture by the 
FELs specified by the previous certificate.
    (iii) Tier 2. Locomotives and engines used in locomotives 
manufactured on, or after, January 1, 2005 are subject to the Tier 2 
standards listed in table A8-3 of this section. The standards apply when 
such a locomotive or locomotive engine is manufactured or imported, and 
each time it is remanufactured except where the locomotive was 
previously certified to one or more FELs under subpart D of this part 
instead of the applicable standard, in which case, the standards are 
replaced at each subsequent remanufacture by the FELs specified by the 
previous certificate.
    (2) Smoke standards. The smoke opacity standards listed in table A8-
4 of this section apply, as specified in the table, to locomotives and 
locomotive engines subject to the Tier 0, Tier 1, or Tier 2 standards. 
Smoke emissions, when measured in accordance with the provisions of 
subpart B of this part, shall not exceed the standards of table A8-4 of 
this section.
    (3) Alternate standards. In lieu of the CO and PM standards 
specified in paragraph (a)(1) of this section, manufacturers and 
remanufacturers may elect to comply with the alternate CO and PM 
standards listed in table A8-5 of this section. Manufacturers and 
remanufacturers electing to comply with these alternate standards must 
comply with both the CO and PM standards listed in table A8-5 of this 
section.
    (4) Averaging, banking and trading. (i) In lieu of the 
NOX and/or PM standards specified in paragraph (a)(1) of this 
section, manufacturers and remanufacturers may elect to include engine 
families in the averaging, banking, and trading program, the provisions 
of which are specified in subpart D of this part. The manufacturer or 
remanufacturer must set family emission limits (FEL) for the applicable 
duty-cycle. This FEL serves as the standard for that family.
    (ii) When a locomotive is certified to an FEL other than the 
applicable standard, it must be recertified to that same FEL at all 
subsequent remanufactures, except as specified otherwise in paragraph 
(a)(4)(iii) of this section.
    (iii) After a locomotive has been certified to any given FEL other 
than the applicable standard, it may be recertified to a different FEL 
at a subsequent remanufacture, as allowed by subpart D of this part. For 
subsequent remanufactures (i.e. those remanufactures that occur after 
the recertification to a different FEL), the locomotive must be 
recertified to the FEL(s) and standards that were applicable to the 
locomotive during its previous useful life, except where specified 
otherwise 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

[[Page 423]]

 
THCE............................................        1.00        2.10
------------------------------------------------------------------------
\1\ Line-haul standards do not apply to Tier 0 switch locomotives.


                      Table A8-2--Tier 1 Standards
                               [g/bhp-hr]
------------------------------------------------------------------------
                                                   Line-haul    Switch
                                                     cycle       cycle
                                                   standard    standard
------------------------------------------------------------------------
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    Switch
                                                     cycle       cycle
                                                   standard    standard
------------------------------------------------------------------------
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 for Locomotives
                            [Percent Opacity]
------------------------------------------------------------------------
                                             Steady-   30-sec     3-sec
                                              state     peak      peak
------------------------------------------------------------------------
Tier 0....................................        30        40        50
Tier 1....................................        25        40        50
Tier 2....................................        20        40        50
------------------------------------------------------------------------


                Table A8-5--Alternate CO and PM Standards
                               [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 the 
ambient 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 exhaust 
complies with this prohibition, provided crankcase emissions are 
measured and included with exhaust emissions. Other discharge of 
crankcase emissions complies with this prohibition, provided crankcase 
emissions are measured in all certification, production-line, and in-use 
tests and the masses are added mathematically to the exhaust emissions.
    (2) Compliance with this standard is required throughout the entire 
service life of the locomotive or locomotive engine.
    (c) Notch standards. (1) Exhaust emissions from locomotives and 
locomotive engines shall not exceed the notch standards set forth in 
paragraph (c)(2) of this section, except as allowed in paragraph (c)(3) 
of this section, when measured using any test procedures under any test 
conditions.
    (2) Notch standards for each pollutant for each notch are calculated 
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 (for 
pollutant x) for the notch (i.e., the brake-specific emission rate 
calculated under subpart B of this part, multplied by the deterioration 
factor in the application for certification expressed as a 
multiplicative deterioration factor); where x is NOX. HC (or 
NMHC or THCE, as applicable), CO or PM.
ELHx=The deteriorated line-haul duty-cycle weighted brake-
specific emission rate for pollutant x, as reported in the application 
for certification.
std=The applicable line-haul duty-cycle standard, or the certified line-
haul duty-cycle FEL for locomotives or locomotive engines participating 
in the averaging, banking and trading program for NOx or PM.

    (3) Where exhaust emissions exceed the notch standards set forth in 
paragraph (c)(2) of this section, the locomotive or locomotive engine is 
considered to be in compliance with such standards only if:
    (i) The same emission controls are applied during the test 
conditions causing the noncompliance as were applied during 
certification test conditions (and to the same degree); or

[[Page 424]]

    (ii) The exceeding emissions result from a design feature that was 
described (including its effect on emissions) in the approved 
application for certification, and is necessary for safety or is 
otherwise allowed by this part.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40453, July 13, 2005]



Sec. 92.9  Compliance with emission standards.

    (a) The general standards in Sec. 92.7 and the emission standards 
in Sec. 92.8 apply to the emissions from new locomotives and new 
locomotive engines for their useful life. The useful life is specified 
as MW-hrs and years, and ends when either of the values (MW-hrs or 
years) is exceeded.
    (1) The minimum useful life in terms of MW-hrs is equal to the 
product of the rated horsepower multiplied by 7.50. The minimum useful 
life in terms of years is ten years. For locomotives or locomotive 
engines originally manufactured before January 1, 2000 and not equipped 
with MW-hr meters, the minimum useful life is equal to 750,000 miles or 
ten years, whichever is reached first.
    (2) The certifying manufacturer or remanufacturer shall specify a 
longer useful life if the locomotive or locomotive engine is designed to 
last longer than the applicable minimum useful life. A manufacturer's or 
remanufacturer's recommended time to remanufacture which is longer than 
the minimum useful life is one indicator of a longer design life.
    (3) Manufacturers and remanufacturers of non-locomotive-specific 
engines (as defined in Sec. 92.2) may petition the Administrator prior 
to certification to allow a shorter useful life for an engine family 
containing only non-locomotive-specific engines. This petition must 
include the full rationale behind the request together with any other 
supporting evidence. Based on this or other information, the 
Administrator may allow a shorter useful life.
    (4) Remanufacturers of locomotive or locomotive engine 
configurations that have been previously certified under paragraph 
(a)(3) of this section to a useful life that is shorter than the value 
specified in paragraph (a)(1) of this section may certify to that same 
useful life value without request.
    (b) Certification. Certification is the process by which 
manufacturers and remanufacturers apply for and obtain certificates of 
conformity from EPA that allow the manufacturer or remanufacturer to 
introduce into commerce new locomotives and/or new locomotive engines 
for sale or use in the U.S.
    (1)(i) Compliance with the applicable emission standards by an 
engine family must be demonstrated by the certifying manufacturer or 
remanufacturer before a certificate of conformity may be issued under 
Sec. 92.208.
    (A) Manufacturers shall demonstrate compliance using emission data, 
measured using the procedures specified in subpart B of this part, from 
a low mileage locomotive, or a development engine (that is equivalent in 
design to the locomotive engines being certified), or another low hour 
engine.
    (B) Remanufacturers shall demonstrate compliance using emission 
data, measured using the procedures specified in subpart B of this part, 
from a low mileage remanufactured locomotive, or a development engine 
(that is equivalent in design to the locomotive engines being 
certified), or another low hour remanufactured engine that was 
remanufactured in the manner specified in the application for 
certification.
    (ii) The emission values to compare with the standards shall be the 
emission values of a low mileage locomotive, or development engine, or 
low hour locomotive engine, adjusted by the deterioration factors 
developed in accordance with the provisions of paragraph (b)(2) of this 
section. Before any emission value is compared with the standard, it 
shall be rounded, in accordance with ASTM E 29-93a (incorporated by 
reference at Sec. 92.5), to the same number of decimal places as 
contained in the applicable standard.
    (2) Exhaust emission deterioration factors shall be determined by 
the certifying manufacturer or remanufacturer for each engine family. 
The manufacturer's or remanufacturer's determination is subject to the 
requirements of paragraph (b)(2)(iv) of this

[[Page 425]]

section. The deterioration factor relates emissions from low mileage or 
low hour data to emissions at the end of useful life. If certification 
data is obtained from a development engine, and the emissions 
performance of that engine is significantly different from a typical low 
hour engine, then the deterioration factors may be adjusted for the 
purpose of certification.
    (i) A separate exhaust emission deterioration factor shall be 
established, as required, for compliance with applicable emission 
standards for HC, THCE, NMHC, CO, NOX. particulate and smoke 
for each engine family.
    (ii)(A) For locomotives or locomotive engines not utilizing 
aftertreatment 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 mileage 
emission rate equals the emission rate at the end of useful life. 
However, if the deterioration factor supplied by the manufacturer or 
remanufacturer is less than zero, it shall be zero for the purposes of 
this section.
    (B) For locomotives or locomotive engines utilizing aftertreatment 
technology (e.g., catalyst). For HC, THCE, NMHC, CO, NOX. and 
PM, Multiplicative deterioration factors shall be used; that is 
deterioration factors that when multiplied by the low mileage emission 
rate equal the emission rate at the end of useful life. However, if the 
deterioration factor supplied by the manufacturer or remanufacturer is 
less than one, it shall be one for the purposes of this paragraph (b).
    (C) For all locomotives and locomotive engines. For smoke, additive 
deterioration factors shall be used. However, if the deterioration 
factor supplied by the manufacturer or remanufacturer is less than zero, 
it shall be zero for the purposes of this paragraph (b).
    (iii) In the case of a multiplicative exhaust emission deterioration 
factor, the factor shall be rounded to three places to the right of the 
decimal point in accordance with ASTM E 29-93a (incorporated by 
reference at Sec. 92.5). In the case of an additive exhaust emission 
deterioration factor, the factor shall be established to a minimum of 
two places to the right of the decimal in accordance with ASTM E 29-93a 
(incorporated by reference at Sec. 92.5).
    (iv) Every deterioration factor must be, in the Administrator's 
judgement, consistent with emissions increases observed in-use based on 
emission testing of similar locomotives or locomotive engines. 
Deterioration factors that predict emission increases over the useful 
life of a locomotive or locomotive engine that are significantly less 
than the emission increases over the useful life observed from in-use 
testing of similar locomotives or locomotive engines shall not be used.

[63 FR 18998, Apr. 16, 1998, as amended at 73 FR 59183, Oct. 8, 2008]



Sec. 92.10  Warranty period.

    Warranties imposed by Sec. 92.1107 shall apply for at least the 
first third of the full useful life of the locomotive or locomotive 
engine, or for the same period during which the manufacturer or 
remanufacturer provides any other mechanical warranty, whichever is 
longer. A copy of the manufacturer's or remanufacturer's warranty 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 problems that 
could occur near the date on which more stringent emission standards 
become effective, such as the transition from the Tier 1 standards to 
the Tier 2 standards on January 1, 2005.
    (a) In appropriate extreme and unusual circumstances which are 
clearly outside the control of the manufacturer and which could not have 
been avoided by the exercise of prudence, diligence, and due care, the 
Administrator may permit a manufacturer, for a brief period, to 
introduce into commerce locomotives which do not comply with the 
applicable emission standards if:
    (1) The locomotives cannot reasonably be manufactured in such a 
manner that they would be able to comply with the applicable standards;
    (2) The manufacture of the locomotives was substantially completed

[[Page 426]]

prior to the applicability date of the standards from which the 
manufacturer seeks relief;
    (3) Manufacture of the locomotives was previously scheduled to be 
completed at such a point in time that locomotives would have been 
included in the previous model year, such that they would have been 
subject to less stringent standards, and that such schedule was feasible 
under normal conditions;
    (4) The manufacturer demonstrates that the locomotives comply with 
the less stringent standards that applied to the previous model year's 
production described in paragraph (a)(3) of this section, as prescribed 
by subpart C of this part (i.e., that the locomotives are identical to 
locomotives certified in the previous model year);
    (5) The manufacturer exercised prudent planning and was not able to 
avoid the violation and has taken all reasonable steps to minimize the 
extent of the nonconformity; and
    (6) The manufacturer receives approval from EPA prior to introducing 
the locomotives into commerce.
    (b) Any manufacturer seeking relief under this section shall notify 
EPA as soon as it becomes aware of the extreme or unusual circumstances.
    (c)(1) Locomotives for which the Administrator grants relief under 
this section shall be included in the engine family for which they were 
originally intended to be included.
    (2) Where the locomotives are to be included in an engine family 
that was certified to an FEL above the applicable standard, the 
manufacturer shall reserve credits to cover the locomotives covered by 
this section, and shall include the required information for these 
locomotives in the end-of-year report required by subpart D of this 
part.
    (d) In granting relief under this section, the Administrator may 
also set other conditions as he/she determines to be appropriate, such 
as requiring payment of fees to negate an economic gain that such relief 
would otherwise provide to the manufacturer.



Sec. 92.12  Interim provisions.

    Notwithstanding other provisions of this part, the following 
provisions apply as specified to locomotives and locomotive engines 
subject to the provisions of this part:
    (a) Tier 0 standards. In addition to the requirements of Sec. 
92.8(a)(1)(i), the following new locomotives and new locomotive engines 
are subject to the Tier 0 emission standards of Sec. 92.8. The 
requirements of this paragraph do not apply to passenger locomotives. 
The requirements of this paragraph (a) provide manufacturers of freshly 
manufactured locomotives two options for compliance. The first option is 
to comply with the requirements of paragraphs (a) (1) and (2) of this 
section, which has the effect of requiring compliance with Tier 0 
standards on average beginning on January 1, 2001 for all freshly 
manufactured and remanufactured locomotives originally manufactured on 
or after January 1, 1994. The second option requires compliance with the 
requirements of paragraph (a)(3) of this section that the manufacturer 
make a remanufacturing system available at a reasonable cost for its 
primary model for the 1994 through 1997 production period prior to 
January 1, 2000, and to apply the same emission controls to its new 
production of similar locomotives. Manufacturers complying with 
paragraph (a)(3) of this section would be allowed to manufacture and 
remanufacture other locomotives without a certificate of conformity, 
prior to January 1, 2002, except as required by paragraph (a)(2)(ii) of 
this section. Manufacturers may comply with paragraph (a)(3) of this 
section through compliance with the provisions of paragraph (a)(5) of 
this section.
    (1) Freshly manufactured locomotives. Except as provided in 
paragraph (a)(3) of this section, all freshly manufactured locomotives 
manufactured on or after January 1, 2001 must comply with the emission 
standards listed in Table A8-1 of Sec. 92.8 and all other applicable 
requirements of this part.
    (2) Remanufactured locomotives. The following locomotives (and 
engines used in the following locomotives) must comply with the emission 
standards listed in Table A8-1 of Sec. 92.8 and all other applicable 
requirements of this part:
    (i) Locomotives originally manufactured on or after January 1, 1994, 
that

[[Page 427]]

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 0 
standards and is available for use at reasonable cost.
    (3) New model exemption. (i) Freshly manufactured locomotive models 
not introduced for widespread production prior to January 1, 1998 are 
exempt from the requirements of paragraph (a)(1) of this section 
provided the manufacturer of the locomotive:
    (A) Has obtained a certificate of conformity and made available for 
use at reasonable cost before January 1, 2000, a remanufacturing system 
for its primary locomotive model (including its primary engine model) 
originally manufactured between January 1, 1994 and January 1, 1998; and
    (B) Complies with the emission standards listed in Table A8-1 of 
Sec. 92.8 and all applicable requirements of this part for all freshly 
manufactured locomotives manufactured on or after January 1, 2000 that 
are similar to the primary model described in paragraph (a)(3)(i)(A) of 
this section.
    (ii) New locomotives and locomotive engines that are manufactured 
and remanufactured by a manufacturer that complies with the requirements 
of paragraphs (a)(3)(i) (A) and (B) of this section, and that are not 
similar to the locomotive models identified in paragraphs (a)(3)(i) (A) 
and (B) of this section are exempt from the requirements of paragraphs 
(a)(1) and (a)(2)(i) of this section.
    (4) Make available at a reasonable cost means to make a certified 
remanufacturing system available for use where:
    (i) The total cost to the owner and user of the locomotive 
(including initial hardware, increased fuel consumption, and increased 
maintenance costs) during the useful life of the locomotive is less than 
$220,000; and
    (ii) The initial hardware costs are reasonably related to the 
technology included in the remanufacturing system and are less than 
$50,000 for 2-stroke locomotives and 4-stroke locomotives equipped with 
split cooling systems, or $125,000 for 4-stroke locomotives not equipped 
with split cooling systems; and
    (iii) The system will not increase fuel consumption by more than 3 
percent; and
    (iv) The remanufactured locomotive will have reliability throughout 
its useful life that is similar to the reliability the locomotive would 
have had if it had been remanufactured without the certified 
remanufacture system.
    (5)(i) Instead of the provisions of paragraph (a)(3) of this 
section, a manufacturer may comply with the emissions standards listed 
in Table A8-1 of Sec. 92.8 and all other applicable requirements of 
this part with respect to any combination of locomotive models that are 
manufactured or remanufactured on or after January 1, 2000, provided 
that the manufacturer has demonstrated to the satisfaction of the 
Administrator that such locomotives will produce greater emissions 
reductions than would otherwise occur through compliance with paragraph 
(a)(3) of this section.
    (ii) New locomotives and locomotive engines that are manufactured 
and remanufactured by a manufacturer that complies with the requirements 
of paragraph (a)(5)(i) of this section, and that are not similar to the 
locomotive models identified in paragraph (a)(5)(i) of this section, are 
exempt from the requirements of paragraphs (a)(1) and (a)(2)(i) of this 
section.
    (b) Production line and in-use testing. (1) The requirements of 
Subpart F of this part (i.e., production line testing) do not apply 
prior to January 1, 2002.
    (2) The testing requirements of subpart F of this part (i.e., 
production line testing) do not apply to small manufacturers/
remanufacturers prior to January 1, 2013. Note that the production line 
audit requirements apply as specified.
    (3) The requirements of Subpart G of this part (i.e., in-use 
testing) only apply for locomotives and locomotive engines that become 
new on or after January 1, 2002.
    (4) For locomotives and locomotive engines that are covered by a 
small business certificate of conformity, the requirements of Subpart G 
of this part (i.e., in-use testing) only apply for locomotives and 
locomotive engines that

[[Page 428]]

become new on or after January 1, 2007. We will also not require small 
remanufacturers to perform any in-use testing prior to January 1, 2013.
    (c) Small business certificates of conformity. (1) Prior to January 
1, 2007, small remanufacturers (as defined in Sec. 92.2) may use a 
modified version of the federal test procedures of subpart B of this 
part to obtain certificates of conformity. Such certificates are valid 
only for production that occurs prior to January 1, 2007. Specifically, 
the following modifications are allowed:
    (i) Measurement of HC, CO, and PM may be omitted;
    (ii) Dynamometers are not required to meet the specifications of 
subpart B of this part, provided their design and use is consistent with 
good engineering practice;
    (iii) Other modifications that are necessary because of excessive 
costs or technical infeasibility may be approved by the Administrator 
prior to the start of testing.
    (2)(i) Small remanufacturers may use test procedures other than 
those specified in subpart B of this part or in paragraph (c)(1) of this 
section to obtain certificates of conformity, provided that the test 
procedures are consistent with good engineering practice, and are 
approved by the Administrator prior to the start of testing. Such 
certificates are valid only for production that occurs prior to January 
1, 2007.
    (ii) The total number of locomotives and locomotive engines that may 
be remanufactured under a certificate of conformity issued based on the 
testing described in paragraph (c)(2)(i) of this section shall be 
subject to the following annual limits for each individual 
remanufacturer: No more than 300 units in 2003, no more than 200 units 
in 2004, no more than 100 units in 2005, no more than 50 units in 2006. 
These sales limits apply to the combined number of locomotives and 
locomotive engines remanufactured within the calendar year that are 
covered by an individual remanufacturer's certificates issued under 
paragraph (c)(2)(i) of this section.
    (3) Upon request, and prior to January 1, 2007, the Administrator 
may modify other certification requirements, as appropriate, for small 
remanufacturers.
    (4) Remanufacturers certifying under this paragraph (c) shall 
provide along with their application for certification a brief 
engineering analysis describing the emission control technology to be 
incorporated in the remanufactured locomotive or locomotive engine, and 
demonstrating that such controls will result in compliance with the 
applicable standards.
    (d) Early banking of emission credits. (1) Consistent with the 
provisions of subpart D of this part, NOx and PM emission credits may be 
generated from Tier 0 locomotives and locomotive engines prior to 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, as applicable), 
relative to baseline emission rates.
    (2)(i) Credits generated under this paragraph (d) that are granted 
or transferred to the owner or primary operator of the locomotives or 
locomotive engines generating credits may be used without restriction.
    (ii) Credits generated under this paragraph (d) that are not granted 
or transferred to the owner or primary operator of the locomotives or 
locomotive engines generating credits may not be used for compliance 
with the Tier 0 standards for 2002 or later model years.
    (3)(i) Prior to January 1, 2000, the provisions of this paragraph 
(d) apply to all locomotives and locomotive engines.
    (ii) During the period January 1, 2000 through December 31, 2001, 
the provisions of this paragraph (d) apply only to engine families that 
include only locomotives and/or locomotive engines originally 
manufactured prior to January 1, 1990.
    (iii) The provisions of this paragraph (d) other than the provisions 
of paragraph (d)(2) of this section do not apply to any locomotives and 
locomotive engines manufactured or remanufactured on or after January 1, 
2002.
    (4)(i) NOX credits generated under this paragraph (d) 
shall be calculated as specified in Sec. 92.305, except that the

[[Page 429]]

applicable standard shall be replaced by:
    (A) 10.5 g/bhp-hr for the line-haul cycle standards, and 14.0 g/bhp-
hr for the switch standards; or
    (B) For remanufactured locomotives, a measured baseline emission 
rate for the configuration with the lowest NOX emission rate 
in the applicable engine family that is approved in advance by the 
Administrator.
    (ii) PM credits generated under this paragraph (d) shall be 
calculated as specified in Sec. 92.305, except that the applicable 
standard shall be replaced by:
    (A) 0.20 g/bhp-hr for the line-haul cycle standards, and 0.24 g/bhp-
hr for the switch standards; or
    (B) For remanufactured locomotives, a measured baseline emission 
rate for the configuration with the lowest NOX emission rate 
in the applicable engine family that is approved in advance by the 
Administrator.
    (iii) The proration factor for all credits generated under this 
paragraph (d) shall be 0.143.
    (5) Locomotives and locomotive engines generating credits under this 
paragraph (d) must meet all applicable requirements of this part.
    (e) Particulate notch standards. For model year 2006 and earlier 
locomotives, the particulate notch standard shall be calculated as:

Notch standard=(EX)x(1.2+(1-ELHx/std)).

    (f) Passenger locomotives. Passenger locomotives originally 
manufactured before January 1, 2002 are exempt from the requirements and 
prohibitions of this part for model years through 2006. New passenger 
locomotives and locomotive engines produced on or after January 1, 2007 
shall comply with all applicable requirements of this part.
    (g) Tier 0 locomotive labels. Remanufacturers may use identical 
labels for locomotives and engines for Tier 0 locomotives, provided the 
remanufacturer demonstrates to EPA that they will supply two labels (one 
for the locomotive and one for the engine) only with those 
remanufacturing systems being applied to locomotives that have not been 
previously labeled (i.e., locomotives that have not been previously 
certified). For other locomotives, the remanufacturer may only supply 
one label.
    (h) Labels for calendar year 2005. During calendar year 2005, 
manufacturers and remanufacturers may comply with the labeling 
requirements that were applicable during calendar year 2004, instead of 
the labeling requirements specified in Sec. 92.212(c)(2)(v).
    (i) Diesel test fuels. Manufacturers and remanufacturers may use LSD 
or ULSD test fuel to certify to the standards of this part, instead of 
the otherwise specified test fuel, provided PM emissions are corrected 
as described in this paragraph (i). Measure your PM emissions and 
determine your cycle-weighted emission rates as specified in subpart B 
of this part. If you test using LSD, add 0.04 g/bhp-hr to these weighted 
emission rates to determine your official emission result. If you test 
using ULSD, add 0.05 g/bhp-hr to these weighted emission rates to 
determine your official emission result.
    (j) Subchapter U provisions. For model years 2008 through 2012, 
certain locomotives will be subject to the requirements of this part 92 
while others will be subject to the requirements of 40 CFR subchapter U. 
This paragraph (j) describes allowances for manufacturers or 
remanufacturers to ask for flexibility in transitioning to the new 
regulations.
    (1) You may ask to use a combination of the test procedures of this 
part and those of 40 CFR part 1033. We will approve your request if you 
show us that it does not affect your ability to show compliance with the 
applicable emission standards. Generally this requires that the combined 
procedures would result in emission measurements at least as high as 
those that would be measured using the procedures specified in this 
part. Alternatively, you may demonstrate that the combined effects of 
the procedures is small relative to your compliance margin (the degree 
to which your locomotives are below the applicable standards).
    (2) You may ask to comply with the administrative requirements of 40 
CFR part 1033 and 1068 instead of the equivalent requirements of this 
part.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40453, July 13, 2005; 
73 FR 37194, June 30, 2008]

[[Page 430]]



                        Subpart B_Test Procedures



Sec. 92.101  Applicability.

    Provisions of this subpart apply to tests performed by the 
Administrator, certificate holders, other manufacturers and 
remanufacturers of locomotives or locomotive engines, railroads (and 
other owners and operators of locomotives), and their designated testing 
laboratories. This subpart contains gaseous emission test procedures, 
particulate emission test procedures, and smoke test procedures for 
locomotives and locomotive engines.



Sec. 92.102  Definitions and abbreviations.

    The definitions and abbreviations of subpart A of this part apply to 
this subpart. The following definitions and abbreviations, as well as 
those found in Sec. 92.132 (Calculations), also apply:
    Accuracy means the difference between the measured value and the 
true value, where the true value is determined from NIST traceable 
measurements where possible, or otherwise determined by good engineering 
practice.
    Calibration means the act of calibrating an analytical instrument 
using known standards.
    Calibration gas means a gas of known concentration which is used to 
establish the response curve of an analyzer.
    Good engineering practice means those methods and practices which 
the Administrator determines to be consistent with scientific and 
engineering principles.
    Hang-up refers to the process of hydrocarbon molecules being 
adsorbed, condensed, or by any other method removed from the sample flow 
prior to reaching the instrument detector. It also refers to any 
subsequent desorption of the molecules into the sample flow when they 
are assumed to be absent.
    Parts per million, carbon or ppmC means the concentration of an 
organic compound in a gas expressed as parts per million (by volume or 
by moles) multiplied by the number of carbon atoms in a molecule of that 
compound.
    Precision means the standard deviation of replicated measurements, 
or one-half of the readability, whichever is greater; except where 
explicitly noted otherwise.
    Readability means the smallest difference in measured values that 
can be detected. For example, the readability for a digital display with 
two decimal places would be 0.01.
    Span gas means a gas of known concentration which is used routinely 
to set the output level of an analyzer.
    Standard conditions and standard temperature and pressure 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 of 
locomotives and locomotive engines. The procedures specified here are 
intended to measure brake-specific mass emissions of organic compounds 
(hydrocarbons for locomotives using petroleum diesel fuel), oxides of 
nitrogen, particulates, carbon monoxide, carbon dioxide, and smoke in a 
manner representative of a typical operating cycle.
    (b)(1) The sampling systems specified in this subpart are intended 
to collect representative samples for analysis, and minimize losses of 
all analytes.
    (i) For gaseous emissions, a sample of the raw exhaust is collected 
directly from the exhaust stream and analyzed during each throttle 
setting.
    (ii) Particulates are collected on filters following dilution with 
ambient air of a separate raw exhaust sample.
    (2) Analytical equipment is identical for all fuel types, with the 
exception of the systems used to measure organics (i.e., hydrocarbons, 
alcohols, and aldehydes); diesel-fueled and biodiesel-fueled locomotives 
Parts per million and locomotive engines require a heated, continuous 
hydrocarbon detector; natural gas-fueled locomotives and locomotive 
engines require a continuous hydrocarbon detector and a methane 
detector; alcohol-fueled locomotives and locomotive engines require a 
heated hydrocarbon detector, alcohol sampling and detection systems, and 
aldehyde sampling and detection systems. Necessary equipment and 
specifications appear in Sec. Sec. 92.105 through 92.111.
    (3) Fuel specifications for emission testing are specified in Sec. 
92.113. Analytical gases are specified in Sec. 92.112.

[[Page 431]]

    (c) The power produced by the engine is measured at each throttle 
setting.
    (d) The fuel flow rate for each throttle setting is measured in 
accordance with Sec. 92.107.
    (e) Locomotives and locomotive engines are tested using the test 
sequence as detailed in Sec. Sec. 92.124 and 92.126.
    (f) Alternate sampling and/or analytical systems may be used if 
shown to yield equivalent results, and if approved in advance by the 
Administrator. Guidelines for determining equivalency are found in 
Appendix IV of this part.
    (g) At the time of the creation of this part, essentially all 
locomotives and locomotive engines subject to the standards of this part 
were designed to use diesel fuel. Therefore, the testing provisions of 
this subpart focus primarily on that fuel. Some provisions for fuels 
other than diesel are also included. If a manufacturer or remanufacturer 
of locomotives or locomotive engines, or a user of locomotives, or other 
party wishes or intends to use a fuel other than diesel in locomotives 
or locomotive engines, it shall notify the Administrator, who shall 
specify those changes to the test procedures that are necessary for the 
testing to be consistent with good 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 for 
both locomotive testing and engine testing. Unless specified otherwise 
in this subpart, all provisions apply to both locomotive and engine 
testing.
    (b)(1) The test procedures for engine testing are intended to 
produce emission measurements that are essentially identical to emission 
measurements produced during locomotive testing using the same engine 
configuration. The following requirements apply for all engine tests:
    (i) Engine speed setpoints for each mode shall be within 2 percent 
of the speed of the engine when it is operated in the locomotive. Engine 
load setpoints for each mode shall be within 2 percent (or 3.0 
horsepower, whichever is greater) of the load of the engine when it is 
operated in the locomotive.
    (ii) The temperature of the air entering the engine after any charge 
air cooling shall be within 5 [deg]F of the typical intake air 
temperature when the engine is operated in the locomotive under similar 
ambient conditions. Auxiliary fan(s) may be used to maintain engine 
cooling during operation on the dynamometer.
    (iii) The engine air inlet system used during testing shall have an 
air inlet restriction within 1 inch of water of the upper limit of a 
typical engine as installed with clean air filters, as established by 
the manufacturer or remanufacturer for the engine being tested.
    (2) Testers performing engine testing under this subpart shall not 
use test procedures otherwise allowed by the provisions of this subpart 
where such procedures are not consistent with good engineering practice 
and the regulatory goal specified in paragraph (b)(1) of this section.
    (c) Provisions that specify different requirements for locomotive 
and/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, July 13, 2005]



Sec. 92.105  General equipment specifications.

    (a) Chart recorders. (1) The recommended minimum chart speed for 
gaseous measurements is 1 cm per minute. (Higher chart speeds are 
required for smoke measurements during the acceleration phases of the 
test sequence.)
    (2) All chart recorders (analyzers, torque, rpm, etc.) shall be 
provided with automatic markers which indicate ten second intervals. 
Preprinted chart paper (ten second intervals) may be used in lieu of the 
automatic markers provided the correct chart speed is used. (Markers 
which indicate 1 second

[[Page 432]]

intervals are required for smoke measurements during the acceleration 
phases of the test sequence.)
    (b) Automatic data collection. (1) In lieu of the use of chart 
recorders, automatic data collection equipment may be used to record all 
required data. The automatic data collection equipment must be capable 
of sampling at least two records per second.
    (2) Other means may be used provided they produce a permanent visual 
data record of a quality equal to or better than those required by this 
subpart (e.g., tabulated data, traces, or plots).
    (c) Temperature measurements. (1) The following temperature 
measurements shall be accurate to within 1.0 [deg]F (0.6 [deg]C):
    (i) Temperature measurements used in calculating the engine intake 
humidity;
    (ii) The temperature of the fuel, in volume measuring flow rate 
devices;
    (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 within 3.0 
[deg]F (1.7 [deg]C).
    (d) Electrical measurements. Instruments used to measure engine 
power output shall comply with the requirements of Sec. 92.106.
    (e) Pressure measurements. (1) Gauges and transducers used to 
measure any pressures used to correct gas volumes (e.g., to standard 
conditions) or to calculate mass or moles of a sample shall have an 
accuracy and precision of 0.1 percent of absolute pressure at point or 
better.
    (2) Gauges and transducers used to measure any other pressures shall 
have an accuracy and precision of 1 percent of absolute pressure at 
point or better.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40453, July 13, 2005]



Sec. 92.106  Equipment for loading the engine.

    For purposes of placing the required load on the engine during an 
emissions test, either the equipment specified in paragraph (a) of this 
section, or the equipment specified in paragraph (b) of this section may 
be used.
    (a) Locomotive testing. (1) The equipment required for loading the 
locomotive engine-alternator/generator assembly electrically, and for 
measurement of the electrical power output from the alternator/generator 
consists of the following, either in total or in part: electrical 
resistance load bank; fans or other means for cooling of the load bank; 
wattmeter, including phase angle compensation; meter(s) for measurement 
of the current through the load bank (a calibrated electrical shunt and 
voltmeter is allowed for current measurement); meter(s) to measure the 
voltage across the load bank; and electrical cable to connect the 
alternator/generator to the load bank. Many locomotives are equipped 
with an internal electrical resistance load bank and fans for cooling of 
the load bank; when so equipped, the locomotive load bank may be used 
for purposes of loading the engine during emissions tests.
    (2) The combination of instruments (meters) used to measure engine 
or alternator/generator power output (wattmeter, ammeter, voltmeter) 
shall have accuracy and precision such that the accuracy of the measured 
alternator/generator power out is better than:
    (i) 2 percent of point at all power settings except idle and dynamic 
brake; and
    (ii) Less accuracy and precision is allowed at idle and dynamic 
brake, consistent with good engineering practice. Equipment with 
accuracy or precision worse than 20 percent of point is not allowed.
    (3) The efficiency curve for the alternator/generator, shall specify 
the efficiency at each test point. The manufacturer or remanufacturer 
shall provide EPA with a detailed description of the procedures used to 
establish the alternator/generator efficiency.
    (b) Engine testing. (1) For engine testing using a dynamometer, the 
engine dynamometer system must be capable of controlling engine torque 
and speed simultaneously under steady speed operation, during 
accelerations where the rate of change in torque and speed is 
representative of those changes which occur when the engine is operating 
in a

[[Page 433]]

locomotive. It must also be capable of performing the test sequence 
described in this subpart. In addition to these general requirements, 
the engine or dynamometer readout signals for speed and torque shall 
meet the following accuracy specifications:
    (i) Engine speed readout shall be accurate to within 2 percent of the absolute standard value, as defined in 
Sec. 92.116 of this part.
    (ii) Engine flywheel torque readout shall be accurate to within 
2 percent of the NIST ``true'' value torque at all 
power settings above 10 percent of full-scale, and accurate to within 
5 percent of the NIST ``true'' value torque at 
power settings at or below 10 percent of full-scale.
    (2) For engine testing using a locomotive alternator/generator 
instead of a dynamometer, the equipment used shall comply with the 
requirements of paragraph (a) of this section.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40453, July 13, 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 with equipment 
conforming to the following:
    (1) The fuel flow rate measurement instrument must have a minimum 
accuracy of 2 percent of measurement flow rate for 
each measurement range used. An exception is allowed at idle where the 
minimum accuracy is 10 percent of measured flow 
rate for each measurement range used. The measurement instrument must be 
able to comply with this requirement with an averaging time of one 
minute or less, except for idle, dynamic brake, and notches 1 and 2 
where the instrument must be able to comply with this requirement with 
an averaging time of three minutes or less.
    (2) The controlling parameters are the elapsed time measurement of 
the event and the weight or volume measurement. Restrictions on these 
parameters are:
    (i) The error in the elapsed time measurement of the event must not 
be greater than 1 percent of the absolute event time. This includes 
errors in starting and stopping the clock as well as the period 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 be 
greater than 1 percent of the measuring weight. An 
exception is allowed at idle, where the error in the actual weight of 
the fuel consumed must not be greater than 2 
percent of the measuring weight.
    (iii) If the mass of fuel consumed is measured electronically (load 
cell, load beam, etc.), the error in the actual weight of fuel consumed 
must not be greater than 1 percent of the full-
scale value of the electronic device.
    (iv) If the mass of fuel consumed is measured by volume flow and 
density, the error in the actual volume consumed must not be greater 
than 1 percent of the full-scale value of the 
volume measuring 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 system 
for low flow rates.
    (b) Calibration. Fuel flow rate measurement devices shall be 
calibrated against an independent measurement of the total mass of fuel 
dispensed during a fixed amount of time in accordance with the following 
provisions:
    (1) Measurement of the total mass shall have an accuracy and 
precision of 1 percent of point, or better.
    (2) Fuel measurements shall be performed for at least 10 flow rates 
evenly distributed over the entire range of fuel flow rates used during 
testing.
    (3) For each flow rate, either the total mass of fuel dispense must 
exceed 5.0 kilograms (11.0 pounds), or the length of time during which 
the fuel is dispensed must exceed 30 minutes. In all cases, the length 
of time during which fuel is dispensed must be at least 180 seconds.



Sec. 92.108  Intake and cooling air measurements.

    (a) Intake air flow measurement. Measurement of the flow rate of 
intake air into the engine is allowed for engine testing, but not 
required. When it is

[[Page 434]]

measured, the measurement technique shall conform to the following:
    (1) The air flow measurement method used must have a range large 
enough to accurately measure the air flow over the engine operating 
range during the test. Overall measurement accuracy must be 2 percent of full-scale value of the measurement device 
for all modes except idle. For idle, the measurement accuracy shall be 
5 percent or less of the full-scale value. The 
Administrator must be advised of the method used prior to testing.
    (2) Corrections to the measured air mass flowrate shall be made when 
an engine system incorporates devices that add or subtract air mass (air 
injection, bleed air, etc.). The method used to determine the air mass 
from these devices shall be approved by the Administrator.
    (3) Measurements made in accordance with SAE recommended practice 
J244 (incorporated by reference at Sec. 92.5) are allowed.
    (b) Humidity and temperature measurements. (1) Air that has had its 
absolute humidity altered is considered humidity-conditioned air. For 
this type of intake air supply, the humidity measurements must be made 
within the intake air supply system, and after the humidity conditioning 
has taken place.
    (2) Humidity measurements for non-conditioned intake air supply 
systems shall be made as closely as possible to the point at which the 
intake air stream enters the locomotive, or downstream of that point.
    (3) Temperature measurements of engine intake air, engine intake air 
after compression and cooling in the charge air cooler(s) (engine 
testing only), and air used to cool the charge air after compression, 
and to cool the engine shall be made as closely as possible to obtain 
accurate results based on engineering judgement. Measurement of ambient 
temperature for locomotive testing shall be made within 48 inches of the 
locomotive, at a location that minimizes the effect of heat generated by 
the locomotive on the measured temperature.
    (4) Temperature measurements shall comply with the requirements of 
Sec. 92.105(c).
    (5) Humidity measurements shall be accurate within 2 percent of the 
measured absolute humidity.



Sec. 92.109  Analyzer specifications.

    (a) General analyzer specifications.--(1) Analyzer response time. 
Analyzers for THC, CO2, CO, and NOX must respond 
to an instantaneous step change at the entrance to the analyzer with a 
response equal to 95 percent of that step change in 6.0 seconds or less 
on all ranges used. The step change shall be at least 60 percent of 
full-scale chart deflection. For NOX analyzers using a water 
trap, the response time increase due to the water trap and associated 
plumbing need not be included in the analyzer response time.
    (2) Precision. The precision of the analyzers for THC, 
CO2, CO, and NOX must be no greater than 1 percent of full-scale concentration for each range 
used above 155 ppm (or ppmC), or 2 percent for 
each range used below 155 ppm (or ppmC). The precision is defined as 2.5 
times the standard deviation(s) of 10 repetitive responses to a given 
calibration or span gas.
    (3) Noise. The analyzer peak-to-peak response to zero and 
calibration or span gases over any 10-second period shall not exceed 2 
percent of full/scale chart deflection on all ranges used.
    (4) Zero drift. For THC, CO2, CO, and NOX 
analyzers, the zero-response drift during a 1-hour period shall be less 
than 2 percent of full-scale chart deflection on the lowest range used. 
The zero-response is defined as the mean response including noise to a 
zero-gas during a 30-second time interval.
    (5) Span drift. For THC, CO2, CO, and NOX 
analyzers, the span drift during a 1-hour period shall be less than 2 
percent of full-scale chart deflection on the lowest range used. The 
analyzer span is defined as the difference between the span-response and 
the zero-response. The span-response is defined as the mean response 
including noise to a span gas during a 30-second time interval.
    (b) Carbon monoxide and carbon dioxide analyzer specifications. (1) 
Carbon monoxide and carbon dioxide measurements are to be made with 
nondispersive infrared (NDIR) analyzers.

[[Page 435]]

    (2) The use of linearizing circuits is permitted.
    (3) The minimum water rejection ratio (maximum CO2 
interference) 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 (maximum 
CO2 interference) as measured in Sec. 92.120(b) for CO 
analyzers shall be 5000:1.
    (5) Zero suppression. Various techniques of zero suppression may be 
used to increase readability, but only with prior approval by the 
Administrator.
    (6) Option: if the range of CO concentrations encountered during the 
different test modes is too broad to allow accurate measurement using a 
single analyzer, then multiple CO analyzers may be used.
    (c) Hydrocarbon analyzer specifications. (1) Hydrocarbon 
measurements are to be made with a heated flame ionization detector 
(HFID) analyzer. An overflow sampling system is recommended but not 
required. (An overflow system is one in which excess zero gas or span 
gas spills out of the probe when zero or span checks of the analyzer are 
made.
    (i) Option. A non-heated flame ionization detector (FID) that 
measures hydrocarbon emissions on a dry basis is permitted for petroleum 
fuels other than diesel and biodiesel; Provided, that equivalency is 
demonstrated to the Administrator prior to testing. With the exception 
of temperatures, all specifications contained in Subpart B of this part 
apply to the optional system.
    (ii) The analyzer shall be fitted with a constant temperature oven 
housing the detector and sample-handling components. It shall maintain 
temperature with 3.6 [deg]F (2 [deg]C) of the set point. The detector, 
oven, and sample-handling components within the oven shall be suitable 
for continuous operation at temperatures to 395 [deg]F (200 [deg]C).
    (iii) Fuel and burner air shall conform to the specifications in 
Sec. 92.112(e).
    (iv) The percent of oxygen interference must be less than 3 percent, 
as specified in Sec. 92.119(3).
    (v) Premixed burner air. (A) For diesel and biodiesel fueled 
engines, premixing a small amount of air with the HFID fuel prior to 
combustion within the HFID burner is not recommended as a means of 
improving oxygen interference (%O2I). However, this procedure 
may be used if the engine manufacturer demonstrates on each basic 
combustion system (i.e., four-cycle direct injection, two-cycle direct 
injection, four-cycle indirect injection, etc.) that an HFID using this 
procedure produces comparable results to an HFID not using this 
procedure. These data must be submitted to the Administrator for his/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.
    (2) Methane analyzer. The analytical system for methane consists of 
a gas chromatograph (GC) combined with a flame ionization detector 
(FID).
    (3) Alcohols and Aldehydes. The sampling and analysis procedures for 
alcohols and aldehydes, where applicable, shall be approved by the 
Administrator prior to the start of testing. Procedures are allowed if 
they are consistent with the general requirements of 40 CFR part 1065, 
subpart I, for sampling and analysis of alcohols and aldehydes, and with 
good engineering practice.
    (4) Other methods of measuring organics that are shown to yield 
equivalent results can be used upon approval of the Administrator prior 
to the start of testing.
    (d) Oxides of nitrogen analyzer specifications. (1) Oxides of 
nitrogen are to be measured with a chemiluminescence (CL) analyzer.
    (i) The NOX sample must be heated per Sec. 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 at 
least 90 percent.
    (iv) The CO2 quench interference must be less than 3.0 
percent as measured in Sec. 92.121(a).

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40454, July 13, 2005]

[[Page 436]]



Sec. 92.110  Weighing chamber and micro-balance.

    (a) Ambient conditions--(1) Temperature. The temperature of the 
chamber (or room) in which the particulate filters are conditioned and 
weighed shall be maintained at a measured temperature between 19 [deg]C 
and 25 [deg]C during all filter conditioning and weighing.
    (2) Humidity. The relative humidity of the chamber (or room) in 
which the particulate filters are conditioned and weighed shall be 
458 percent during all filter conditioning and 
weighing. The dew point shall be 6.4 to 12.4 [deg]C.
    (b) Weighing balance specifications. The microbalance used to 
determine the weights of all filters shall have a precision (standard 
deviation) of no more than 20 micrograms and readability down to 10 
micrograms or lower.
    (c) Reference filters. The chamber (or room) environment shall be 
free of any ambient contaminants (such as dust) that would settle on the 
particulate filters during their stabilization. It is required that at 
least two unused reference filters remain in the weighing 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 general area 
as the sample filters. These reference filters shall be weighed within 4 
hours of, but preferably at the same time as, the sample filter 
weighings.
    (2) If the average weight of the reference filters changes between 
sample filter weighings by 5.0 percent (7.5 if the filters are weighed in pairs) or more of the 
target nominal filter loading (the recommended nominal loading is 0.5 
milligrams per 1075 square millimeters of stain area), then all sample 
filters in the process of stabilization shall be discarded and the 
emissions tests repeated.
    (3) If the average weight of the reference filters decreases between 
sample filter weighings by more than 1.0 percent but less than 5.0 
percent of the nominal filter loading then the manufacturer or 
remanufacturer has the option of either repeating the emissions test or 
adding the average amount of weight loss to the net weight of the 
sample.
    (4) If the average weight of the reference filters increases between 
sample filter weighing by more than 1.0 percent but less than 5.0 
percent of the nominal filter loading, then the manufacturer or 
remanufacturer has the option of either repeating the emissions test or 
accepting the measured sample filter weight values.
    (5) If the average weight of the reference filters changes between 
sample filter weighings by not more than 1.0 
percent, then the 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 may be used. The reference 
filters 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 section is a schematic 
drawing of the optical system of the light extinction meter, as follows:

[[Page 437]]

[GRAPHIC] [TIFF OMITTED] TR16AP98.000

    (b) Equipment. The following equipment shall be used in the system.
    (1) Adapter. The smokemeter optical unit may be mounted on a fixed 
or movable frame. The normal unrestricted shape of the exhaust plume 
shall not be modified by the adaptor, the meter, or any ventilation 
system

[[Page 438]]

used to remove the exhaust from the test site. Distortion due to the 
gaseous or particulate sample probes, or the exhaust duct is allowed 
subject to the provisions of Sec. 92.114.
    (2) Wind shielding. Tests shall not be conducted under excessively 
windy conditions. Winds are excessive if they disturb the size, shape, 
or location of the exhaust plume in the region where exhaust samples are 
drawn or where the smoke plume is measured. Tests may be conducted if 
wind shielding is placed adjacent to the exhaust plume to prevent 
bending, dispersion, or any other distortion of the exhaust plume as it 
passes through the optical unit.
    (3) Smokemeter, (light extinction meter). A continuously recording, 
full-flow light obscuration meter shall be used.
    (i) It is positioned as specified in paragraph (c) of this section, 
so that a built-in light beam traverses the exhaust smoke plume which 
issues from the duct. The light beam shall be at right angles to the 
axis of the plume, and in those cases were the exhaust is not circular 
at its discharge, the path of the light beam through the plume shall be 
along the longest axis of the exhaust stack which is not a diagonal of a 
rectangular exhaust stack.
    (ii) The light source shall be an incandescent lamp with a color 
temperature range of 2800K to 3250K, or a light source with a spectral 
peak between 550 and 570 nanometers.
    (iii) The light output is collimated to a beam with a nominal 
diameter of 1.125 inches and an angle of divergence within a 6 degree 
included angle.
    (iv) The light detector shall be a photocell or photodiode. If the 
light source is an incandescent lamp, the detector shall have a spectral 
response similar to the photopic curve of the human eye (a maximum 
response in the range of 550 to 570 nanometers, to less than four 
percent of that maximum response below 430 nanometers and above 680 
nanometers).
    (v) A collimating tube with apertures equal to the beam diameter is 
attached to the detector to restrict the viewing angle of the detector 
to within a 16 degree included angle.
    (vi) An amplified signal corresponding to the amount of light 
blocked is recorded continuously on a remote recorder.
    (vii) An air curtain across the light source and detector window 
assemblies may be used to minimize deposition of smoke particles on 
those surfaces provided that it does not measurably affect the opacity 
of the plume.
    (viii) The smokemeter consists of two units; an optical unit and a 
remote control unit.
    (ix) Light extinction meters employing substantially identical 
measurement principles and producing substantially equivalent results, 
but which employ other electronic and optical techniques may be used 
only after having been approved in advance by the Administrator.
    (4) Recorder. A continuous recorder, with variable chart speed over 
a minimal range of 1 to 20 cm per minute (or equivalent) and an 
automatic marker indicating 1-second intervals, continuously records the 
exhaust gas opacity and throttle position.
    (i) The recorder is equipped to indicate each of the throttle notch 
(test mode) positions.
    (ii) The recorder scale for opacity is linear and calibrated to read 
from 0 to 100 percent opacity full scale.
    (iii) The opacity trace has a resolution within one percent opacity.
    (iv) The throttle position trace clearly indicates each throttle 
position.
    (5) The recorder used with the smokemeter shall be capable of full-
scale deflection in 0.5 second or less. The smokemeter-recorder 
combination may be damped so that signals with a frequency higher than 
10 cycles per second are attenuated. A separate low-pass electronic 
filter with the following performance characteristics may be installed 
between the smokemeter and the recorder to achieve the high-frequency 
attenuation:
    (i) Three decibel point: 10 cycles per second.
    (ii) Insertion loss: 0 0.5 decibel.
    (iii) Selectivity: 12 decibels down at 40 cycles per second minimum.
    (iv) Attenuation: 27 decibels down at 40 cycles per second minimum.
    (6) Automatic data collection equipment may be used, provided it is 
capable of collecting data equivalent to or

[[Page 439]]

better than the data required by paragraphs (b)(4) and (5) of this 
section.
    (c)(1) Assembling equipment for locomotive testing. The optical unit 
of the smokemeter shall be mounted radially to the exhaust duct so that 
the measurement will be made at right angles to the axis of the exhaust 
plume. The distance from the optical centerline to the exhaust outlet 
shall be minimized; in all cases it shall be less than 10 feet. The 
maximum allowable distance of unducted space upstream of the optical 
centerline is 18 inches. The full flow of the exhaust stream shall be 
centered between the source and detector apertures (or windows and 
lenses) and on the axis of the light beam.
    (2) Assembling equipment for engine testing. The optical unit of the 
smokemeter shall be mounted radially to the exhaust duct so that the 
measurement will be made at right angles to the axis of the exhaust 
plume. The distance from the optical centerline to the exhaust outlet 
shall be less than 25 feet. The maximum allowable distance of unducted 
space upstream of the optical centerline is 18 inches. In-line 
smokemeters are allowed. The full flow of the exhaust stream shall be 
centered between the source and detector apertures (or windows and 
lenses) and on the axis of the light beam.
    (d) Power supply. Power shall be supplied to the control unit of the 
smokemeter in time to allow at least 15 minutes for stabilization prior 
to testing.



Sec. 92.112  Analytical gases.

    (a) Gases for the CO and CO2 analyzers shall be single 
blends of CO and CO2, respectively, using zero grade nitrogen 
as the diluent.
    (b) Gases for the hydrocarbon analyzer shall be single blends of 
propane using zero grade air as the diluent.
    (c) Gases for the methane analyzer shall be single blends of methane 
using air as the diluent.
    (d) Gases for the NOX analyzer shall be single blends of 
NO named as NOX with a maximum NO2 concentration 
of 5 percent of the nominal value using zero grade nitrogen as the 
diluent.
    (e) Fuel for the HFID (or FID, as applicable) and the methane 
analyzer shall be a blend of 402 percent hydrogen 
with the balance being helium. The mixture shall contain less than 1 ppm 
equivalent carbon response; 98 to 100 percent hydrogen fuel may be used 
with advance approval of the Administrator.
    (f) Hydrocarbon analyzer burner air. The concentration of oxygen 
must be within 1 mole percent of the oxygen concentration of the burner 
air used in the latest oxygen interference check (%O2I). If 
the difference in oxygen concentration is greater than 1 mole percent, 
then the oxygen interference must be checked and the analyzer adjusted 
if necessary, to meet the %O2I requirements. The burner air 
must contain less than 2 ppmC hydrocarbon.
    (g) The allowable zero gas (air or nitrogen) impurity concentrations 
shall not exceed 1 ppm equivalent carbon response, 1 ppm carbon 
monoxide, 0.04 percent (400 ppm) carbon dioxide and 0.1 ppm nitric 
oxide.
    (h)(1) ``Zero-grade air'' includes artificial ``air'' consisting of 
a blend of nitrogen and oxygen with oxygen concentrations between 18 and 
21 mole percent.
    (2) Calibration gases shall be accurate to within 1 percent of NIST gas standards, or other gas standards 
which have been approved by the Administrator.
    (3) Span gases shall be accurate to within 2 
percent of NIST gas standards, or other gas standards which have been 
approved by the Administrator.
    (i) Oxygen interference check gases shall contain propane at a 
concentration greater than 50 percent of range. The concentration value 
shall be determined to calibration gas tolerances by chromatographic 
analysis of total hydrocarbons plus impurities or by dynamic blending. 
Nitrogen shall be the predominant diluent with the balance being oxygen. 
Oxygen concentration in the diluent shall be between 20 and 22 percent.
    (j) The use of precision blending devices (gas dividers) to obtain 
the required calibration gas concentrations is acceptable, provided that 
the blended gases are accurate to within 1.5 
percent of NIST gas standards, or other gas standards which have been 
approved by the Administrator. This accuracy implies that primary gases 
used

[[Page 440]]

for blending must be ``named'' to an accuracy of at least 1 percent, traceable to NIST or other approved gas 
standards.



Sec. 92.113  Fuel specifications.

    (a) Diesel test fuel. (1) The diesel fuels for testing locomotives 
or locomotive engines designed to operate on diesel fuel shall be clean 
and bright, with pour and cloud points adequate for operability. The 
diesel fuel may contain nonmetallic additives as follows: cetane 
improver, metal deactivator, antioxidant, dehazer, antirust, pour 
depressant, dye, dispersant, and biocide. The diesel fuel shall also 
meet the specifications (as determined using methods incorporated by 
reference at Sec. 92.5) in Table B113-1 of this section, or 
substantially equivalent specifications approved by the Administrator, 
as follows:

                              Table B113-1
------------------------------------------------------------------------
                 Item                          ASTM           Type 2-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 to 
show that only the designated fuel would be used in service; and
    (iii) Use of a fuel listed under paragraph (a)(1) of this section 
would have a detrimental effect on emissions or durability; and
    (iv) Written approval from the Administrator of the fuel 
specifications 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 with 
Sec. 92.133.
    (b) Natural gas test fuel (compressed natural gas, liquefied natural 
gas). (1) Natural gas-fuel meeting the specifications (as determined 
using methods incorporated by reference at Sec. 92.5) in Table B113-2 
of this section, or substantially similar specifications approved by the 
Administrator, shall be used in exhaust emissions testing of locomotives 
or locomotive engines designed to operate on natural gas-fuel, as 
follows:

                              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 and N2--   Max.........  D1945.........      4.0
 Odorant \1\.
------------------------------------------------------------------------
\1\ The natural gas at ambient conditions must have a distinctive odor
  potent enough for its presence to be detected down to a concentration
  in air of not over \1/5\ (one-fifth) of the lower limit 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 to 
show that only the designated fuel would be used in customer service; 
and
    (iii) Written approval from the Administrator of the fuel 
specifications 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 with Sec. 
92.133.
    (c) Other fuel types. (1) For locomotives or locomotive engines 
which are designed to be capable of using a type of fuel (or mixed fuel) 
other than diesel fuel, or natural gas fuel (e.g., methanol), and which 
are expected to use that type of fuel (or mixed fuel) in

[[Page 441]]

service, a commercially available fuel of that type shall be used for 
exhaust emission testing. The Administrator shall determine the 
specifications of the fuel to be used for testing, based on the engine 
design, the specifications of commercially available fuels, 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 with Sec. 92.133.



Sec. 92.114  Exhaust gas and particulate sampling and analytical system.

    (a) General. (1) During emission testing, the engine exhaust is 
routed through an exhaust duct connected to, or otherwise adjacent to 
the outlet of the locomotive exhaust system. Emission samples are 
collected as specified in paragraphs (b) and (c) of this section. 
Exhaust duct requirements are specified in paragraph (d) of this 
section.
    (2) The systems described in this section are appropriate for use 
with locomotives or engines employing a single exhaust.
    (i) For testing where the locomotive or engine has multiple exhausts 
all exhaust streams shall be combined into a single stream prior to 
sampling, except as allowed by paragraph (a)(2)(ii) of this section.
    (ii) For locomotive testing where the locomotive has multiple 
exhaust stacks, proportional samples may be collected from each exhaust 
outlet instead of ducting the exhaust stacks together, provided that the 
CO2 concentrations in each exhaust stream are shown (either 
prior to testing or during testing) to be within 5 percent of each other 
at notch 8.
    (3) All vents, including analyzer vents, bypass flow, and pressure 
relief vents of regulators, should be vented in such a manner to avoid 
endangering personnel in the immediate area.
    (4) Additional components, not specified here, such as instruments, 
valves, solenoids, pumps, switches, and so forth, may be employed to 
provide additional information and coordinate the functions of the 
component systems, provided that their use is consistent with good 
engineering practice. 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.
    (b) Raw exhaust sampling for gaseous emissions. (1)(i) An example of 
the type of sampling and analytical system which is to be used for 
gaseous emissions testing under this subpart is shown in Figure B114-1 
of this section. All components or parts of components that are wetted 
by the sample or corrosive calibration gases shall be either chemically 
cleaned stainless steel or other inert material, for example, 
polytetrafluoroethylene resin. The use of ``gauge savers'' or 
``protectors'' with nonreactive diaphragms to reduce dead volumes is 
permitted. Additional components such as instruments, valves, solenoids, 
pumps, switches, etc. may be employed to provide additional information 
and coordinate the functions of the component systems.
    (ii) System components list. The following is a list of components 
shown in Figure B114-1 of this section by numeric identifier.
    (A) Filters. Glass fiber filter paper is permitted for the fine 
particulate filters (F1, F2, and F3). Optional filter F4 is a coarse 
filter for large particulates. Filters F3 and F4 are heated filters
    (B) Flowmeters. Flowmeters FL1 and FL2 indicate sample flow rates 
through the CO and CO2 analyzers. Flowmeters FL3, FL4, FL5, 
and FL6 indicate bypass flow rates.
    (C) Gauges. Downstream gauges are required for any system used for 
testing under this subpart. Upstream gauges may be required under this 
subpart. Upstream gauges G1 and G2 measure the input to the CO and 
CO2 analyzers. Downstream gauges G3 and G4 measure the exit 
pressure of the CO and CO2 analyzers. If the normal operating 
range of the downstream gauges is less than 3 inches of water, then the 
downstream gauges must be capable of reading both pressure and vacuum. 
Gauges G3 and G4 are not necessary if the analyzers 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 control valves.

[[Page 442]]

    (E) Water traps. Water traps WT1 and WT2 to remove water from the 
sample. A water trap performing the function of WT1 is required for any 
system used for testing under this subpart. Chemical dryers are not an 
acceptable method of removing the water. Water removal by condensation 
is acceptable. If water is removed by condensation, the sample gas 
temperature or sample dew point must be monitored either within the 
water trap or downstream; it may not exceed 45 [deg]F (7 [deg]C). Means 
other than condensation may be used only with prior approval from the 
Administrator.
    (F) Regulators. R1, R3, R4, and R6 are line pressure regulators to 
control span pressure at inlet to flow control valves; R2 and R5 are 
back pressure regulators to control sample pressure at inlet to flow 
control valves.
    (G) Valves. V1, V7, V8, and V14 are selector valves to select zero 
or calibration gases; V2 are optional heated selector valves to purge 
the sample probe, perform leak checks, or to perform hang-up checks; V3 
and V5 are selector valves to select sample or span gases; V4, V6, and 
V15 are flow control valves; V9 and V13--heated selector valve to select 
sample or span gases; V10 and V12--heated flow control valves; V11--
Selector valve to select NOX or bypass mode in the 
chemiluminescence analyzer; V16--heated selector valve to perform leak 
checks.
    (H) Pump. Sample transfer pump to transport sample to analyzers.
    (I) Temperature sensor. A temperature sensor (T1) to measure the 
NO2 to NO converter temperature is required for any system 
used for testing under this subpart.
    (J) Dryer. Dryers D1 and D2 to remove the water from the bypass 
flows to prevent condensation in flowmeters FL3, FL4, and FL6.
    (2) The following requirements must be incorporated in each gaseous 
sampling system used for testing under this subpart:
    (i) The exhaust is analyzed for gaseous emissions using analyzers 
meeting the specifications of Sec. 92.109, and all analyzers must 
obtain the sample to be analyzed from the same sample probe, and 
internally split to the different analyzers.
    (ii) Sample transfer lines must be heated as specified in paragraph 
(b)(4) of this section.
    (iii) Carbon monoxide and carbon dioxide measurements must be made 
on a dry basis. Specific requirements for the means of drying the sample 
can be found in paragraph (b)(1)(ii)(E) of this section.
    (iv) All NDIR analyzers must have a pressure gauge immediately 
downstream of the analyzer. The gauge tap must be within 2 inches of the 
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 must 
be measured. Capillary flows such as in HFID and CL analyzers are 
excluded. For each NDIR analyzer with a flow meter located upstream of 
the analyzer, an upstream pressure gauge must be used. The gauge tap 
must be within 2 inches of the analyzer entrance port.
    (vi) Calibration or span gases for the NOX measurement 
system must pass through the NO2 to NO converter.
    (vii) The temperature of the NO2 to NO converter must be 
displayed continuously.
    (3) Gaseous sample probe. (i) The gaseous emissions sample probe 
shall be a straight, closed end, stainless steel, multi-hole probe. The 
inside diameter shall not be greater than the inside diameter of the 
sample line by more than 0.01 inches (0.03 cm). The wall thickness of 
the probe shall not be greater than 0.04 inches (0.10 cm). The fitting 
that attaches the probe to the exhaust duct shall be as small as 
practical in order to minimize heat loss from the probe.
    (ii) The gaseous emissions sample probe shall have a minimum of 
three holes in each 3 inch segment of length of the probe. The spacing 
of the radial planes for each hole in the probe must be such that they 
cover approximately equal cross-sectional areas of the exhaust duct. 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] (see section view C-C of Figure B114-2 of

[[Page 443]]

this section). The holes should be sized such that each has 
approximately the same flow. If only three holes are used in each 3 inch 
segment of probe length, they may not all be in the same radial plane.
    (iii) The sample probe shall be so located in the center of the 
exhaust duct to minimize stratification, with respect to both 
concentration and velocity, present in the exhaust stream. The probe 
shall be located between two feet and five feet downstream of the 
locomotive exhaust outlet (or nearest practical equivalent during engine 
testing), and at least 1 foot upstream of the outlet of the exhaust duct 
to the atmosphere.
    (iv) If the exhaust duct is circular in cross section, the sample 
probe should extend approximately radially across the exhaust duct, and 
approximately through the center of the duct. The sample probe must 
extend across at least 80 percent of the diameter of the duct.
    (v) If the exhaust duct is not circular in cross section, the sample 
probe should extend across the exhaust duct approximately parallel to 
the longest sides of the duct, or along the longest axis of the duct 
which is not a diagonal, and through the approximate center of the duct. 
The sample probe must extend across at least 80 percent of the longest 
axis of the duct which is not a diagonal, and be approximately parallel 
to the longest sides of the duct.
    (vi) Other sample probe designs and/or locations may be used only if 
demonstrated (to the Administrator's satisfaction) to provides a more 
representative sample.
    (4) Sample transfer line(s). (i) The maximum inside diameter of 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 directly to 
valve V2. The location of optional valve V2 may not be greater than 4 
feet (1.22 m) from the exhaust duct.
    (iii) The sample transport system from the engine exhaust duct to 
the HC analyzer and the NOX analyzer must be heated as is 
indicated in Figure B114-1 of this section.
    (A) For diesel fueled and biodiesel fueled locomotives and engines, 
the wall temperature of the HC sample line must be maintained at 375 
20 [deg]F (191 11 [deg]C). 
An exception is made for the first 4 feet (122 cm) of sample line from 
the exhaust duct. The upper temperature tolerance for this 4 foot 
section is waived and only the minimum temperature specification 
applies.
    (B) For locomotives and engines using fuels other than diesel or 
biodiesel, the heated components in the HC sample path shall be 
maintained at a temperature approved by the Administrator, not exceeding 
446 [deg]F (230 [deg]C).
    (C) For all fuels, wall temperature of the NOX sample 
line 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 (122 cm) of 
sample line from the exhaust duct. The upper temperature tolerance for 
this 4 foot section is waived and only the minimum temperature 
specification applies.
    (D) For each component (pump, sample line section, filters, etc.) in 
the heated portion of the sampling system that has a separate source of 
power or heating element, use engineering judgment to locate the coolest 
portion of that component and monitor the temperature at that location. 
If several components are within an oven, then only the surface 
temperature of the component with the largest thermal mass and the oven 
temperature need be measured.
    (c) Particulate emissions. (1)(i) Schematic drawing. An example of a 
sampling system which may be used for particulate emissions testing 
under this subpart is shown in Figure B114-3 of this section. All 
components or parts of components that are wetted by the samples gases 
upstream of the filter shall be either chemically cleaned stainless 
steel or other inert material, for example, polytetrafluoroethylene 
resin. The use of ``gauge savers'' or ``protectors'' with nonreactive 
diaphragms to reduce dead volumes is permitted. Additional components 
such as instruments, valves, solenoids, pumps, switches, etc. may be 
employed to provide additional information and coordinate the functions 
of the component systems.
    (ii) The following requirements must be incorporated in each system 
used for testing under this subpart:

[[Page 444]]

    (A) All particulate filters must obtain the sample from the same 
sample probe located within the exhaust gas extension with internal 
split to the different filters.
    (B) The wall temperature of the sample transport system from the 
probe to the dilution tunnel (excluding the first 4 feet of the 
particulate 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 for the raw 
exhaust shall be a straight, closed end, stainless steel, multi-hole 
probe of approximately 1.25 inch (3.2 cm) diameter. The inside diameter 
shall not be greater than the inside diameter of the sample line by more 
than 0.1 inches (0.3 cm). The wall thickness of the probe shall not be 
greater than 0.06 inches (0.15 cm). The fitting that attaches the probe 
to the exhaust duct shall be as small as practical in order to minimize 
heat loss from the probe.
    (ii) All sample collection holes in the probe shall be located so as 
to face away from the direction of flow of the exhaust stream or at most 
be tangential to the flow of the exhaust stream past the probe (see 
Figure B114-4 of this section). Five holes shall be located in each 
radial plane along the length of the probe in which sample holes are 
placed. The spacing of the radial planes for each set of holes in the 
probe must be such that they cover approximately equal cross-sectional 
areas of the exhaust duct. For rectangular ducts, this means that the 
sample hole-planes must be equidistant from each other. For circular 
ducts, this means that the distance between the sample hole-planes must 
be decreased with increasing distance from the center of the duct (see 
Figure B114-4 of this section).

    (Note: Particulate concentrations are expected to vary to some 
extent as a function of the distance to the duct wall; thus each set of 
sample holes collects a sample that is representative of a cross-
sectional disk at that approximate distance from the wall.)


The spacing between sets of sample holes along the length of the probe 
shall be no more than 4 inches (10 cm). The holes should be sized such 
that each has approximately the same flow.
    (iii)(A) The particulate sample probe shall be located in the 
exhaust duct on an axis which is directly downstream of, and parallel to 
the axis of the gaseous sample probe. The distance between the probes 
shall be between 3 inches (7.6 cm) and 6 inches (15.2 cm). Greater 
spacing is allowed for engine testing, where spacing of 3 inches (7.6 
cm) to 6 inches (15.2 cm) is not practical.
    (B) If the exhaust duct is circular in cross section, the sample 
probe should extend approximately radially across the exhaust duct, and 
approximately through the center of the duct. The sample probe must 
extend across at least 80 percent of the diameter of the duct.
    (C) If the exhaust duct is not circular in cross section, the sample 
probe should extend across the exhaust duct approximately parallel to 
the longest sides of the duct, or along the longest axis of the duct 
which is not a diagonal, and through the approximate center of the duct. 
The sample probe must extend across at least 80 percent of the longest 
axis of the duct which is not a diagonal, and be approximately parallel 
to the longest sides of the duct.
    (3) Particulate sample transfer line. (i) The maximum inside 
diameter of the particulate emissions sample line shall be approximately 
2.5 inches (6.4 cm).
    (ii) The sample transfer line shall be heated to maintain a wall 
temperature above 375 [deg]F.
    (4) Dilution tunnel. The flow capacity of the blower moving the 
mixture of sample and air through the tunnel must be sufficient to 
maintain the diluted sample stream at a temperature of 125 [deg]F (51.7 
[deg]C) or less, at the sampling zone in the dilution tunnel and at the 
sample filter. A single measurement of diluted exhaust temperature is 
required. The temperature shall also be maintained as required to 
prevent condensation at any point in the dilution tunnel. A small 
negative pressure is to be maintained in the dilution tunnel by 
throttling at the source of the dilution air, and adjusted as necessary, 
sufficient to draw sample through the probe and sample transfer line. 
Direct sampling of the particulate material may take place (Figure B114-
3 of this section) at this point.

[[Page 445]]

    (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 cause complete 
mixing of the exhaust and dilution air;
    (2) 4 inches (10 cm) minimum inside diameter;
    (3) Constructed of electrically conductive material which does not 
react with the exhaust components; and
    (4) Electrically grounded.
    (B) The temperature of the diluted exhaust stream inside of the 
dilution tunnel shall be sufficient to prevent water condensation.
    (C) The engine exhaust shall be directed downstream at the point 
where it is introduced into the dilution tunnel.
    (ii) Dilution air:
    (A) Shall be at a temperature of 68 [deg]F (20 [deg]C) or greater.
    (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 exhaust stream.
    (D) Shall be sampled to determine the background concentration of 
CO2.
    (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 dilution air and 
exhaust are well mixed (i.e., on the tunnel centerline, approximately 10 
tunnel diameters downstream of the point where the exhaust enters the 
dilution tunnel).
    (2) Sufficiently distant (radially) from other sampling probes so as 
to be free from the influence of wakes or eddies produced by the other 
probes.
    (3) 0.5 in. (1.3 cm) minimum inside diameter.
    (4) The distance from the sampling tip to the filter holder shall 
not be more than 40 inches (102 cm).
    (5) Designed to minimize the deposition of particulate during 
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 located 
sufficiently distant from the tunnel so that the inlet gas temperature 
remains constant (5 [deg]F (2.8 [deg]C)). Alternately, the temperature of the sample 
may be monitored at the gas meter, and the measured volume corrected to 
standard conditions.
    (C) Particulate sampling filters. (1) Fluorocarbon-coated glass 
fiber filters or fluorocarbon-based (membrane) filters are required.
    (2) Particulate filters must have a diameter to maintain the average 
face velocity of the sample across the filter between 35 and 80 cm/s.
    (3) The dilute exhaust will be simultaneously sampled by a pair of 
filters (one primary and one back-up filter) during each phase of 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-up filters 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 when other filter 
sizes are used.
    (D) Diluted CO2 sample collection system. (1) The 
concentrations of CO2 in the dilution air and diluted exhaust 
are determined by pumping a sample into a sample bag (made of a 
nonreactive material) or directly to the analyzer, as shown in Figure 
B114-3 of this section.
    (2) The sample probe for the diluted exhaust shall be installed 
facing upstream at a point where the dilution air and exhaust are well 
mixed (i.e., on the tunnel centerline, approximately 10 tunnel diameters 
downstream of the point where the exhaust enters the dilution tunnel). 
It shall also be sufficiently distant (radially) from other sampling 
probes so as to be free from the influence of any wakes or eddies 
produced by the other probes.
    (iv) Other sample flow handling and/or measurement systems may be 
used if shown to yield equivalent results and if approved in advance by 
the Administrator. (See Appendix IV of this part for guidance.)
    (d) Exhaust system. The exhaust system shall meet the following 
requirements:

[[Page 446]]

    (1) For locomotive testing, the engine exhaust shall be routed 
through an exhaust duct with dimensions equal to or slightly larger than 
the dimensions of the locomotive exhaust outlet. The exhaust duct shall 
be designed so as to not significantly affect exhaust backpressure.
    (2) For engine testing, either a locomotive-type or a facility-type 
exhaust system (or a combination system) may be used. The exhaust 
backpressure for engine testing shall be set between 90 and 100 percent 
of the maximum backpressure that will result with the exhaust systems of 
the locomotives in which the engine will be used. Backpressure less than 
90 percent of the maximum value is also allowed, provided the 
backpressure is within 0.07 psi of the maximum value. The facility-type 
exhaust system shall meet the following requirements:
    (i) It must be composed of smooth ducting made of typical in-use 
steel or stainless steel.
    (ii) If an aftertreatment system is employed, the distance from the 
exhaust manifold flange(s), or turbocharger outlet to any exhaust 
aftertreatment device shall be the same as in the locomotive 
configuration unless the manufacturer is able to demonstrate equivalent 
performance at another location.
    (iii) If the exhaust system ducting from the exit of the engine 
exhaust manifold or turbocharger outlet to smoke meter exceeds 12 feet 
(3.7 m) in length, then all ducting shall be insulated consistent with 
good engineering practice.
    (iv) For engines designed for more than one exhaust outlet to the 
atmosphere, a specially fabricated collection duct may be used. The 
collection duct should be located downstream of the in-locomotive exits 
to the atmosphere. Any potential increase in backpressure due to the use 
of a single exhaust instead of multiple exhausts may be compensated for 
by using larger than standard exhaust system components in the 
construction of the collection duct.
    (e) Dilute exhaust sampling for gaseous and particulate emissions. 
(1) Dilution of the exhaust prior to sampling is allowed for gaseous 
emissions. The equipment and methods used for dilution, sampling and 
analysis shall comply with the requirements of 40 CFR part 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 be 
specified by the Administrator;
    (iii) Other modifications may be made with written approval from the 
Administrator.
    (2) Dilution of only a portion of the exhaust is allowed, provided 
that:
    (i) The fraction of the total exhaust that is diluted is determined 
for systems that determine mass emission rates (g/hr) from the total 
volume of the diluted sample; or
    (ii) The ratio of raw sample volume to diluted sample volume is 
determined for systems that determine mass emission rates (g/hr) from 
measured 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 in Sec. Sec. 
92.116 through 92.122.
    (b) At least monthly or after any maintenance which could alter 
calibration, perform the periodic calibrations required by Sec. 
92.118(a)(2) (certain analyzers may require more frequent calibration 
depending on the equipment and use). Exception: the water rejection 
ratio and the CO2 rejection ratio on all NDIR analyzers is 
only required to be performed quarterly.
    (c) At least monthly or after any maintenance which could alter 
calibration, calibrate the engine dynamometer flywheel torque and speed 
measurement transducers, as specified in Sec. 92.116.
    (d) At least monthly or after any maintenance which could alter 
calibration, check the oxides of nitrogen converter efficiency, as 
specified in Sec. 92.121.
    (e) At least weekly or after any maintenance which could alter 
calibration, check the dynamometer (if used) shaft torque feedback 
signal 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 per 
Sec. 92.116(b)(1).
    (f) At least quarterly or after any maintenance which could alter 
calibration, calibrate the fuel flow measurement system as specified in 
Sec. 92.107.
    (g) At least annually or after any maintenance which could alter 
calibration, calibrate the electrical output measurement system for the 
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 life or 
when the indicator of the column packing begins to show deterioration.
    (i) For equipment not addressed in Sec. Sec. 92.116 through 92.122 
calibrations shall be performed at least as often as required by the 
equipment manufacturer or as necessary according to good practices. The 
calibrations shall be performed in accordance with procedures specified 
by the equipment manufacturer.
    (j) Where testing is conducted intermittently, calibrations are not 
required during period in which no testing is conducted, provided that 
times between the most recent calibrations and the date of any test does 
not exceed the calibration period. For example, if it has been more than 
one month since the analyzers have been calibrated (as specified in 
paragraph (c) of this section) then they must be calibrated 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 transducers shall be 
calibrated with the calibration equipment described in this section.
    (2) The engine flywheel torque feedback signals to the cycle 
verification equipment shall be electronically checked before each test, 
and adjusted as necessary.
    (3) Other engine dynamometer system calibrations shall be performed 
as dictated by good engineering practice.
    (4) When calibrating the engine flywheel torque transducer, any 
lever arm used to convert a weight or a force through a distance into a 
torque shall be used in a horizontal position (5 
degrees).
    (5) Calibrated resistors may not be used for engine flywheel torque 
transducer calibration, but may be used to span the transducer prior to 
engine testing.
    (b) Dynamometer calibration equipment--(1) Torque calibration 
equipment. Two techniques are allowed for torque calibration. Alternate 
techniques may be used if shown to yield equivalent accuracies. The NIST 
``true'' value torque is defined as the torque calculated by taking the 
product of an NIST traceable weight or force and a sufficiently accurate 
horizontal lever arm distance, corrected for the hanging torque of the 
lever arm.
    (i) The lever-arm dead-weight technique involves the placement of 
known weights at a known horizontal distance from the center of rotation 
of the

[[Page 452]]

torque measuring device. The equipment required is:
    (A) Calibration weights. A minimum of six calibration weights for 
each range of torque measuring device used are required. The weights 
must be approximately equally spaced and each must be traceable to NIST 
weights within 0.1 percent. Laboratories located in foreign countries 
may certify calibration weights to local government bureau standards. 
Certification of weight by state government Bureau of Weights and 
Measures is acceptable. Effects of changes in gravitational constant at 
the test site may be accounted for if desired.
    (B) Lever arm. A lever arm with a minimum length of 24 inches is 
required. The horizontal distance from the centerline of the engine 
torque measurement device to the point of weight application shall be 
accurate to within 0.10 inches. The arm must be 
balanced, or the hanging torque of the arm must be known to within 
0.1 ft-lbs.
    (ii) The transfer technique involves the calibration of a master 
load cell (i.e., dynamometer case load cell). This calibration can be 
done with known calibration weights at known horizontal distances, or by 
using a hydraulically actuated precalibrated master load cell. This 
calibration is then transferred to the flywheel torque measuring device. 
The technique involves the following steps:
    (A) A master load cell shall be either precalibrated or be 
calibrated per paragraph (b)(1)(i)(A) of this section with known weights 
traceable to NIST within 0.1 percent, and used with the lever arm(s) 
specified in this section. The dynamometer should be either running or 
vibrated during this calibration to minimize static hysteresis.
    (B) Transfer of calibration from the case or master load cell to the 
flywheel torque measuring device shall be performed with the dynamometer 
operating at a constant speed. The flywheel torque measurement device 
readout shall be calibrated to the master load cell torque readout at a 
minimum of six loads approximately equally spaced across the full useful 
ranges of both measurement devices. (Note that good engineering practice 
requires that both devices have approximately equal useful ranges of 
torque measurement.) The transfer calibration shall be performed in a 
manner such that the accuracy requirements of Sec. 92.106(b)(1)(ii) for 
the flywheel torque measurement device readout be met or exceeded.
    (iii) Other techniques may be used if shown to yield equivalent 
accuracy.
    (2) Speed calibration equipment. A 60 (or greater) tooth wheel in 
combination with a common mode rejection frequency counter is considered 
an absolute standard for engine or dynamometer speed.
    (c) Dynamometer calibration. (1) If necessary, follow the 
manufacturer's instructions for initial start-up and basic operating 
adjustments.
    (2) Check the dynamometer torque measurement for each range used by 
the following:
    (i) Warm up the dynamometer following the equipment manufacturer's 
specifications.
    (ii) Determine the dynamometer calibration moment arm. Equipment 
manufacturer's data, actual measurement, or the value recorded from the 
previous calibration used for this subpart may be used.
    (iii) Calculate the indicated torque (IT) for each calibration 
weight 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 
distance determined in paragraph (b)(2)(ii)(B) of this section. Record 
the power measurement equipment response (ft-lb) to each weight.
    (v) For each calibration weight, compare the torque value measured 
in paragraph (b)(2)(iv) of this section to the calculated torque 
determined in paragraph (b)(2)(iii) of this section.
    (vi) The measured torque must be within 2 percent of the calculated 
torque.
    (vii) If the measured torque is not within 2 percent of the 
calculated torque, adjust or repair the system. Repeat the steps in 
paragraphs (b)(2)(i) through (b)(2)(vi) of this section with the 
adjusted or repaired system.

[[Page 453]]

    (3) Option. A master load-cell or transfer standard may be used to 
verify the in-use torque measurement system.
    (i) The master load-cell and read out system must be calibrated with 
weights at each test weight specified in paragraph (b)(1)(i)(A) of this 
section. The calibration weights must be traceable to within 0.1 percent 
of NIST weights.
    (ii) Warm up the dynamometer following the equipment manufacturer's 
specifications.
    (iii) Attach the master load-cell and loading system.
    (iv) Load the dynamometer to a minimum of 6 equally spaced torque 
values as indicated by the master load-cell for each in-use range used.
    (v) The in-use torque measurement must be within 2 percent of the 
torque measured by the master system for each load used.
    (vi) If the in-use torque is not within 2 percent of the master 
torque, adjust or repair the system. Repeat steps in paragraphs 
(b)(3)(ii) through (b)(3)(vi) of this section with the adjusted or 
repaired system.
    (4) The dynamometer calibration must be completed within 2 hours 
from the completion of the dynamometer warm-up.
    (d) Electrical load banks. Equipment used to measure the electrical 
power output dissipated by electrical load banks shall be calibrated as 
frequently as required by Sec. 92.115, using a calibration procedure 
that is consistent with good engineering practice and approved by the 
Administrator.



Sec. 92.117  Gas meter or flow instrumentation calibration, particulate 

measurement.

    (a) Sampling for particulate emissions requires the use of gas 
meters or flow instrumentation to determine flow through the particulate 
filters. These instruments shall receive initial and monthly 
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 element or 
an NIST traceable flow calibration device is required as the standard 
device.
    (ii) The flow system should be checked for leaks between the 
calibration and sampling meters, including any pumps that may be part of 
the system, using good engineering practice.
    (2) Flow air through the calibration system at the sample flow rate 
used for particulate testing and at the backpressure which occurs during 
the sample test.
    (3) When the temperature and pressure in the system have stabilized, 
measure the indicated gas volume over a time period of at least five 
minutes or until a gas volume of at least 1 
percent accuracy can be determined by the standard device. Record the 
stabilized air temperature and pressure upstream of the instrument and 
as required for the standard device.
    (4) Calculate air flow at standard conditions as measured by both 
the standard device and the instrument(s).
    (5) Repeat the procedures of paragraphs (a)(2) through (4) of this 
section using at least two flow rates which bracket the typical 
operating range.
    (6) If the air flow at standard conditions measured by the 
instrument differs by 1.0 percent of the maximum 
operating range or 2.0 percent of the point 
(whichever is smaller), then a correction shall be made by either of the 
following two methods:
    (i) Mechanically adjust the instrument so that it agrees with the 
calibration measurement at the specified flow rates using the criteria 
of paragraph (a)(6) of this section; or
    (ii) Develop a continuous best fit calibration curve for the 
instrument (as a function of the calibration device flow measurement) 
from the calibration points to determine corrected flow. The points on 
the calibration curve relative to the calibration device measurements 
must be within 1.0 percent of the maximum 
operating range of 2.0 percent of the point 
through the filter.
    (b) Other systems. A bell prover may be used to calibrate the 
instrument if the procedure outlined in ANSI B109.1-1992 (incorporated 
by reference at Sec. 92.5) is used. Prior approval by the Administrator 
is not required to use the bell prover.

[[Page 454]]



Sec. 92.118  Analyzer checks and calibrations.

    (a)(1) Prior to initial use and after major repairs, bench check 
each analyzer for compliance with the specifications of Sec. 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) of this 
section is used, a pressure leak check is not required.
    (ii) Calibration of all analyzers (see Sec. 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) of this 
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 could affect the test results 
must be checked.
    (ii) The maximum allowable leakage rate on the vacuum side is 0.5 
percent of the in-use flow rate for the portion of the system being 
checked. the analyzer flows and bypass flows may be used to estimate the 
in-use flow rates.
    (iii) The sample probe and the connection between the sample probe 
and valve V2 may be excluded from the leak check.
    (2) Pressure side leak check. (i) The maximum allowable leakage rate 
on the pressure side in 5 percent of the in-use flow rate.
    (ii) Option: If the flow rate for each flow meter is equal to or 
greater than the flow rate recorded in paragraph (c)(2)(i) of this 
section, then a pressure side leak check is not required.
    (c) System response time; check procedure. (1) After any major 
change in the system, check the system response time by the following 
procedure:
    (i) Stabilize the operating temperature of the sample line, sample 
pump, and heated filters.
    (ii) Introduce an HC span gas into the sampling system at the sample 
probe or valve V2 at atmospheric pressure. Simultaneously, start the 
time measurement.
    (iii) When the HC instrument response is 95 percent of the span gas 
concentration used, stop the time measurement.
    (iv) If the elapsed time is more than 20.0 seconds, make necessary 
adjustments.
    (v) Repeat with the CO, CO2, and NOX 
instruments and span gases.
    (2) Option. If the following parameters are determined, the initial 
system response time may be generally applied to future checks:
    (i) Analyzer and bypass flow rates. (A) Determine by experimentation 
the minimum analyzer and bypass flow rates individually and in 
combination that will produce a response time as close as possible to 
20.0 seconds per paragraph (c)(1) of this section.
    (B) Record the highest minimum flow rate for each flow meter as 
determined in paragraph (c)(2)(i)(A) of this section.
    (ii) Capillary flow analyzers. This procedure is applicable only to 
analyzers that have sample capillaries such as the HFID and CL 
analyzers. It is also assumed that the system has sample/span valves 
that 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 in 
paragraph (c)(2)(i)(B) of this section.
    (C) Measure and record the response time from the sample/span 
valve(s) per paragraph (c)(1) of this section.
    (D) The response time required by paragraph (c)(2)(ii)(C) of this 
section can be determined by switching from the ``sample'' position to 
the ``span'' position of the sample/span valve and observing the 
analyzer response on a chart recorder. Normally, the ``sample'' position 
would select a ``room air'' sample and the ``span'' position would 
select a span gas.
    (E) Adjust the bypass flow rate to the normal in-use value.
    (F) Measure and record the response time from the sample/span 
valve(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 this 
section) and add 2 seconds to it.

[[Page 455]]



Sec. 92.119  Hydrocarbon analyzer calibration.

    The HFID hydrocarbon analyzer shall receive the following initial 
and 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 optimum hydrocarbon response. 
Alternate methods yielding equivalent results may be used, if approved 
in advance by the Administrator.
    (1) Follow good engineering practices for initial instrument start-
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 into the 
analyzer a propane-in-air mixture with a propane concentration equal to 
approximately 90 percent of the most common operating range.
    (3) HFID optimization is performed:
    (i) According to the procedures outlined in Society of Automotive 
Engineers (SAE) paper No. 770141, ``Optimization of Flame Ionization 
Detector for Determination of Hydrocarbons in Diluted Automobile 
Exhaust'', author, Glenn D. Reschke (incorporated by reference at Sec. 
92.5); or
    (ii) According to the following procedures:
    (A) If necessary, follow manufacturer's instructions for instrument 
start-up and basic operating adjustments.
    (B) Set the oven temperature 5 [deg]C hotter than the required 
sample-line temperature. Allow at least one-half hour after the oven has 
reached temperature for the system to equilibrate.
    (C) Initial fuel flow adjustment. With the fuel and air-flow rates 
set at the manufacturer's recommendations, introduce a 350 ppmC 75 ppmC span gas to the detector. Determine the response 
at a given fuel flow from the difference between the span-gas response 
and the zero-gas response. Incrementally adjust the fuel flow above and 
below the manufacturer's specification. Record the span and zero 
response at these fuel flows. A plot of the difference between the span 
and zero response versus fuel flow will be similar to the one shown in 
Figure B119-1 of this section. Adjust the fuel-flow rate 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 where the 
oxygen interference check gases (see Sec. 92.112) will fall in the 
upper 50 percent. Conduct this test with the oven temperature set as 
required. Oxygen interference check gas specifications 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 0.5 percent 
of full scale repeat paragraphs (a)(3)(ii)(D) (1) and (2) of this 
section.
    (4) Introduce the 5 percent and 10 percent oxygen interference check 
gases.
    (5) Recheck the zero response. If it has changed more 1 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 response due to 
    A))x(Percent of full-scale analyzer response due to B)

Where:

A=hydrocarbon concentration (ppmC) of the span gas used in step in 
paragraph (a)(3)(ii)(D)(2) of this section.
B=hydrocarbon concentration (ppmC) of the oxygen interference check 
gases used in step in paragraph (a)(3)(ii)(D)(4) of this section.

    (7) The percent of oxygen interference (%O2I) must be 
less than 3.0 percent for all required 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'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 the specification 
after adjusting the air flow, vary the fuel flow and thereafter the 
sample flow, repeating paragraphs (a)(3)(ii)(D) (1) through (7) of this 
section for each new setting.

[[Page 456]]

    (10) If the oxygen interference is still greater than the 
specifications, repair or replace the analyzer, FID fuel, or burner air 
prior to testing. Repeat this section with the repaired or replaced 
equipment or gases.
    (E) Linearity check. For each range used, check linearity as 
follows:
    (1) With the fuel flow, air flow and sample flow adjust to meet the 
oxygen interference specification, zero the analyzer.
    (2) Span the analyzer using a calibration gas that will provide a 
response of approximately 90 percent of full-scale concentration.
    (3) Recheck the zero response. If it has changed more than 0.5 
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 nominal 
concentrations 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 data generated. 
Use an equation of the form y = mx, where x is the actual chart 
deflection and y is the concentration.
    (6) Use the equation z = y/m to find the linear chart deflection (z) 
for each calibration gas concentration (y).
    (7) Determine the linearity (%L) for each calibration gas by:

Percent L=(100)(z-x)/(Full-scale linear chart deflection)

    (8) The linearity criterion is met if the %L is less than 2 percent for each data point generated. Below 40 ppmC 
the linearity criterion may be expanded to 4 
percent. For each emission 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 in step in 
paragraph (a)(3)(ii)(E)(8) of this section, the air fuel, and sample-
flow rates may be varied within the boundaries of the oxygen 
interference specifications.
    (10) If the %L for any data point still exceeds the specifications, 
repair or replace the analyzer, FID fuel, burner air, or calibration 
bottles prior to testing. Repeat the procedures of this section with the 
repaired or replaced equipment or gases.
    (F) Optimized flow rates. The fuel-flow rate, air-flow rate and 
sample-flow rate and sample-flow rate are defined as ``optimized'' at 
this point.
    (iii) Alternative procedures may be used if approved in advance by 
the Administrator.
    (4) After the optimum flow rates have been determined they are 
recorded for future reference.
    (b) Initial and periodic calibration. Prior to introduction into 
service and monthly thereafter, the HFID hydrocarbon analyzer shall be 
calibrated on all normally used instrument ranges. Use the same flow 
rate and pressures as when analyzing samples. Calibration gases 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-air 
calibration gases having nominal concentrations of 15, 30, 45, 60, 75 
and 90 percent of that range. For each range calibrated, if the 
deviation from a least-squares best-fit straight line is 2 percent or 
less of the value at each data point, concentration values may be 
calculated by use of single calibration factor for that range. If the 
deviation exceeds 2 percent at any point, the best-fit non-linear 
equation which represents the data to within 2 percent of each test 
point shall be used to determine concentration.

[[Page 457]]

                         Figure to Sec. 92.119
[GRAPHIC] [TIFF OMITTED] TR16AP98.005


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Sec. 92.120  NDIR analyzer calibration and checks.

    (a) NDIR water rejection ratio check. (1) Zero and span the analyzer 
on the lowest range that will be used.
    (2) Introduce a saturated mixture of water and zero gas at room 
temperature directly to the analyzer.
    (3) Determine and record the analyzer operating pressure (GP) in 
absolute units in Pascal. Gauges G3 and G4 may be used if the values are 
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 saturated 
zero-gas mixture.
    (6) For the temperature recorded in paragraph (a)(4) of this 
section, 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 10 
percent CO2 or greater to the analyzer.
    (3) Record the CO2 calibration gas concentration in ppm.
    (4) Record the analyzers' response (AR) in ppm to the CO2 
calibration gas.
    (5) Calculate the CO2 rejection ratio (CO2RR) 
from:

CO2RR=(ppm CO2)/AR

    (c) NDIR analyzer calibration. (1) Detector optimization. If 
necessary, follow the manufacturer's instructions for initial start-up 
and basic operating adjustments.
    (2) Calibration curve. Develop a calibration curve for each range 
used as follows:
    (i) Zero the analyzer.
    (ii) Span the analyzer to give a response of approximately 90 
percent of full-scale chart deflection.
    (iii) Recheck the zero response. If it has changed more than 0.5 
percent 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 nominal 
concentrations of 15, 30, 45, 60, 75, and 90 percent of full-scale 
concentration.
    (v) Generate a calibration curve. The calibration curve shall be of 
fourth order or less, have five or fewer coefficients, and be of the 
form of equation (1) or (2). Include zero as a data point. Compensation 
for known impurities in the zero gas can be made to the zero-data point. 
The calibration curve must fit the data points within 2 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 this 
section exists;
    (B) The responses generated in paragraph (c)(2)(iv) of this section 
are within 1 percent of full scale or 2 percent of point, whichever is 
less, of the responses predicted by the calibration curve for the gases 
used in paragraph (c)(2)(iv) of this section.
    (vii) If multiple range analyzers are used, only the lowest range 
must meet the curve fit requirements below 15 percent of full scale.
    (3) If any range is within 2 percent of being linear a linear 
calibration may be used. To determine if this criterion is met:
    (i) Perform a linear least-square regression on the data generated. 
Use an equation of the form y=mx, where x is the actual chart 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 than 2 percent for each data point generated. For each 
emission test, a calibration curve of the

[[Page 459]]

form y=mx is to be used. The slope (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 high vacuum reaction chamber 
analyzer prior to initial use.
    (2) Perform the reaction chamber quench check for each new analyzer 
that has an ambient pressure or ``soft vacuum'' reaction chamber prior 
to initial use. Additionally, perform this check prior to reusing an 
analyzer of this type any time any repairs could potentially alter any 
flow rate into the reaction chamber. This includes, 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 range that 
will be used for testing.
    (ii) Introduce a mixture of CO2 calibration gas and 
NOX calibration gas to the CL analyzer. Dynamic blending may 
be used to provide this mixture. Dynamic blending may be accomplished by 
analyzing the CO2 in the mixture. The change in the 
CO2 value due to blending may then be used to determine the 
true concentration of the NOX in the mixture. The 
CO2 concentration of the mixture shall be approximately equal 
to the highest concentration experienced during testing. Record the 
response.
    (iii) Recheck the calibration. If it has changed more than 1 percent of full scale, recalibrate and repeat the 
quench check.
    (iv) Prior to testing, the difference between the calculated 
NOX response and the response of NOX in the 
presence of CO2 (step in paragraph (a)(3)(ii) of this section 
must not be greater than 3.0 percent of full-scale. The calculated 
NOX response is based on the calibration performed in step in 
paragraph (a)(3)(i) this section.
    (b) Oxides of nitrogen analyzer calibration. (1) Every 30 days, 
perform a converter-efficiency check (see paragraph (b)(2) of this 
section) and a linearity check (see paragraph (b)(3) of this section).
    (2) Converter-efficiency check. The apparatus described and 
illustrated in Figure B121-1 of this section is to be used to determine 
the conversion efficiency of devices that convert NO2 to NO. 
The following procedure is to be used in determining the values to be 
used in the equation below:
    (i) Follow the manufacturer's instructions for instrument startup 
and operation.
    (ii) Zero the oxides of nitrogen analyzer.
    (iii) Connect the outlet of the NOX generator to the 
sample inlet of the oxides of nitrogen analyzer which has been set to 
the most common operating range.
    (iv) Introduce into the NOX generator-analyzer system a 
span gas with a NO concentration equal to approximately 80 percent of 
the most common operating range. The NO2 content of the gas 
mixture shall be less than 5 percent of the NOX 
concentration.
    (v) With the oxides of nitrogen analyzer in the NO Mode, record the 
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 NO 
indicated by the analyzer is about 10 percent less than indicated in 
step in paragraph (b)(2)(v) of this section. Record the concentration of 
NO in this NO+O2 mixture.
    (vii) Switch the NOX generator to the generation mode and 
adjust the generation rate so that the NO measured on the analyzer is 20 
percent of that measured in step in paragraph (b)(2)(v) of this section. 
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 the NOX 
mode and measure total NOX. Record this value.
    (ix) Switch off the NOX generation, but maintain gas flow 
through the system. The oxides of nitrogen analyzer will indicate the 
total NOX in the NO+O2 mixture. Record this value.
    (x) Turn off the NOX generator O2 (or air) 
supply. The analyzer will now indicate the total NOX in the 
original NO

[[Page 460]]

in N2 mixture. This value should be no 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 by 
substituting 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 this section.
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 90 
percent. Adjustment of the converter temperature may be necessary to 
maximize the efficiency. If the converter does not meet the conversion-
efficiency specifications, repair or replace the unit prior to testing. 
Repeat the procedures of this section with the repaired or new 
converter.
    (3) Linearity check. For each range used, check linearity as 
follows:
    (i) With the operating parameters adjusted to meet the converter 
efficiency check and the quench checks, zero the analyzer.
    (ii) Span the analyzer using a calibration gas that will give a 
response of approximately 90 percent of full-scale concentration.
    (iii) Recheck the zero response. If it has changed more than 0.5 
percent 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 nominal 
concentrations 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 data generated. 
Use an equation of the form y=mx where x is the actual chart 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 than 2 percent of each data point generated. For each 
emission 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.
    (ix) If the %L exceeds 2 percent for any data 
point generated, repair or replace the analyzer or calibration bottles 
prior to testing. Repeat the procedures of this section with the 
repaired or replaced equipment or gases.
    (x) Perform a converter-efficiency check (see paragraph (b)(2) of 
this section).
    (xi) The operating parameters are defined as ``optimized'' at this 
point.
    (4) Converter checking gas. If the converter quick-check procedure 
is to be employed, paragraph (b)(5) of this section, a converter 
checking gas bottle must be named. The following naming procedure must 
occur after each converter efficiency check, paragraph (b)(2) of this 
section.
    (i) A gas bottle with an NO2 concentration equal to 
approximately 80 percent of the most common operation range shall be 
designated as the converter checking gas bottle. Its NO concentration 
shall be less than 25 percent of its NO2 concentration, on a 
volume basis.
    (ii) On the most common operating range, zero and span the analyzer 
in the NOX mode. Use a calibration gas with a concentration 
equal to approximately 80 percent of the range for spanning.
    (iii) Introduce the converter checking gas. Analyze and record 
concentrations in both the NOX mode (X) and NO mode (Y).
    (iv) Calculate the concentration of the converter checking gas using 
the results from step in paragraph (b)(4)(iii) of this section and the 
converter efficiency from paragraph (b)(2) of this section as follows:

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 461]]

    (ii) Analyze the converter checking gas in the NOX mode, 
record the concentration.
    (iii) Compare the observed concentration with the concentration 
assigned under the procedure in paragraph (b)(4) of this section. If the 
observed concentration is equal to or greater than 90 percent of the 
assigned concentration, the converter operation is satisfactory.
    (c) Initial and periodic calibration. Prior to its introduction into 
service and monthly thereafter, the chemiluminescent oxides of nitrogen 
analyzer shall be calibrated 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 or 
zero-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 range calibrated, if 
the deviation from a least-squares best-fit straight line is 2 percent 
or less of the value at each data point, concentration values may be 
calculated by use of a single calibration factor for that range. If the 
deviation exceeds 2 percent at any point, the best-fit non-linear 
equation which represents the data to within 2 percent of each test 
point shall be used to determine concentration.
    (d) If a stainless steel NO2 to NO converter is used, 
condition all new or replacement converters. The conditioning consists 
of either purging the converter with air for a minimum of 4 hours or 
until the converter efficiency is greater than 90 percent. The converter 
must be at operational temperature while purging. Do not use this 
procedure prior to checking converter efficiency on in-use converters.

[[Page 462]]

                         Figure to Sec. 92.121
[GRAPHIC] [TIFF OMITTED] TR16AP98.006


[[Page 463]]





Sec. 92.122  Smoke meter calibration.

    The smokemeter shall be checked according to the following procedure 
prior to each test:
    (a) The zero control shall be adjusted under conditions of ``no 
smoke'' to give a recorder or data collection equipment response of 
zero;
    (b) Calibrated neutral density filters having approximately 10, 20, 
and 40 percent opacity shall be employed to check the linearity of the 
instrument. The filter(s) shall be inserted in the light path 
perpendicular to the axis of the beam and adjacent to the opening from 
which the beam of light from the light source emanates, and the recorder 
response shall be noted. Filters with exposed filtering media should be 
checked for opacity every six months; all other filters shall be checked 
every year, using NIST or equivalent reference filters. Deviations in 
excess of 1 percent of the nominal opacity shall be corrected.



Sec. 92.123  Test procedure; general requirements.

    (a) The locomotive/locomotive engine test procedure is designed to 
determine the brake specific emissions of hydrocarbons (HC, total or 
non-methane as applicable), total hydrocarbon equivalent (THCE) and 
aldehydes (as applicable), carbon monoxide (CO), oxides of nitrogen 
(NOX), and particulates, and the opacity of smoke emissions. 
The test procedure consists of measurements of brake specific emissions 
and smoke opacity at each throttle position and of measurements of smoke 
opacity during each change in throttle position as engine power is 
increased. If less than 2 percent of the total exhaust flow is removed 
for gaseous and particulate sampling in notches 1 through 8, and if less 
than 4 percent of the total exhaust flow is removed for gaseous and 
particulate sampling at idle and dynamic brake, all measurements of 
gaseous, particulate and smoke emissions may be performed during one 
test sequence. If more than 2 percent, or 4 percent as applicable, of 
the total exhaust is removed for gaseous and particulate sampling, 
measurements of gaseous, and particulate emissions are performed during 
one test sequence, and a second test sequence is performed for the 
measurement of smoke.
    (1) In the raw exhaust sampling procedure, sample is collected 
directly from the exhaust stream during each throttle setting. 
Particulates are collected on filters following dilution with ambient 
air of another raw exhaust sample. The fuel flow rate for each throttle 
setting is measured.
    (2) For locomotives with multiple exhaust stacks, smoke testing is 
required for only one of the exhaust stacks provided the following 
conditions are met:
    (i) The stack that is not tested is not visibly smokier than the 
stack that is tested, and
    (ii) None of the measured opacity values for the stack tested are 
greater than three-quarters of the level allowed by any of the 
applicable smoke standards.
    (b) The test consists of prescribed sequences of engine operating 
conditions (see Sec. Sec. 92.124 and 92.126) to be conducted either on 
a locomotive; or with the engine mounted on an engine dynamometer, or 
attached to a locomotive alternator/generator.
    (1) Locomotive testing. (i) The electrical power output produced by 
the alternator/generator at each throttle setting is recorded as 
measurements of either the wattmeter or the output voltage, phase angle, 
and current flow through the electrical resistance bank.
    (ii) The locomotive fuel supply system shall be disconnected and a 
system capable of measuring the net rate at which fuel is supplied to 
the engine (accounting for fuel recycle) shall be connected.
    (2) Engine testing. (i) When the test is performed using a 
dynamometer, engine torque and rpm shall be recorded during each 
throttle setting.
    (ii) The complete engine shall be tested, with all emission control 
devices, and charge air cooling equipment installed and functioning.
    (iii) On air-cooled engines, the engine cooling fan shall be 
installed.
    (iv) Additional accessories (e.g., air compressors) shall be 
installed or their loading simulated if typical of the in-use 
application. In the case of simulated accessory loadings, the 
manufacturer shall make available to the Administrator documentation 
which

[[Page 464]]

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 would not be included in 
the engine power output for purposes of calculating brake specific 
emissions.
    (v) The engine may be equipped with a production type starter.
    (vi) Means of engine cooling shall be used which will maintain the 
engine operating temperatures (e.g., temperatures of intake air 
downstream of charge air coolers, oil, water, etc.) at approximately the 
same temperature as would occur in a locomotive at each test point under 
the equivalent ambient conditions. In the case of engine intake air 
after compression and cooling in the charge air cooler(s), the 
temperature of the air entering the engine shall be within 5 [deg]F, at each test point, of the typical 
temperatures occurring in locomotive operations under ambient conditions 
represented by the test. Auxiliary fan(s) may be used to maintain engine 
cooling during operation on the dynamometer. Rust inhibitors and 
lubrication additives may be used, up to the levels recommended by the 
additive manufacturer. If antifreeze is to be used in the locomotive 
application, antifreeze mixtures and other coolants typical of those 
approved for use in the locomotive may be used.
    (vii) The provisions of paragraph (b)(1)(i) of this section apply to 
engine testing using a locomotive alternator/generator instead of a 
dynamometer.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40454, July 13, 2005]



Sec. 92.124  Test sequence; general requirements.

    (a) Air temperature. (1) The temperature of dilution air for the 
particulate sample dilution tunnel shall comply with the requirements of 
Sec. 92.114 throughout the test sequence.
    (2) For the testing of locomotives and engines, the ambient (test 
cell or out-of-door) air temperature, the temperature of the engine 
intake air, and the temperature of the air which provides cooling for 
the 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 temperatures 
without approval from the Administrator, but no corrections are allowed 
for the deviations from test conditions.
    (b) For the testing of locomotives and engines, the atmospheric 
pressure shall be between 31.0 inches Hg and 26.0 inches Hg throughout 
the test sequence. Manufacturers and remanufacturers may test at lower 
pressures without approval from the Administrator, but no corrections 
are allowed for the deviations from test conditions.
    (c) No control of humidity is required for ambient air, engine 
intake air or dilution air.
    (d) Flow restrictions--(1) Locomotive testing. Restrictions to the 
flow of air into the engine and of exhaust out of the engine shall be 
those inherent to the locomotive. No adjustments or changes shall be 
made to these parameters. The temperature of the inlet fuel to the 
engine shall not exceed 125 [deg]F.
    (2) Engine testing. (i) Air inlet and exhaust restrictions shall be 
set to represent the average restrictions which would be seen in use in 
a representative application.
    (ii) Inlet depression and exhaust backpressure shall be set with the 
engine operating at rated speed and maximum power, i.e., throttle notch 
8.
    (iii) The locations at which the inlet depression and exhaust 
backpressure are measured shall be specified by the manufacturer or 
remanufacturer.
    (iv) The settings shall be made during the preconditioning.
    (e) Pre-test engine measurements (e.g., idle and throttle notch 
speeds, 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 engine 
preconditioning, or at the manufacturer's convenience subject to the 
requirements of good engineering practice.
    (f) The required test sequence is described in Table B124-1 of this 
section, as follows:

[[Page 465]]



                                                  Table B124-1
----------------------------------------------------------------------------------------------------------------
                              Test sequence for locomotives and locomotive engines
-----------------------------------------------------------------------------------------------------------------
                                                                                              Power,  and fuel
           Mode No.               Notch setting      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 reaches
                                                    lowest 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 locomotive engines may be performed once, with gaseous,
  particulate and smoke measurements performed simultaneously, or it may be performed twice with gaseous, and
  particulate measurements performed during one test sequence and smoke measurements performed during the other
  test sequence. The minimum time in notch is three minutes for test sequences in which only smoke is measured.


[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40454, July 13, 2005]



Sec. 92.125  Pre-test procedures and preconditioning.

    (a) Locomotive testing. (1) Determine engine lubricating oil and 
coolant levels and fill as necessary to manufacturers recommended full 
levels.
    (2) Connect fuel supply system and purge as necessary; determine 
that the fuel to be used during emission testing is in compliance with 
the specifications of Sec. 92.113.
    (3) Install instrumentation, engine loading equipment and sampling 
equipment as required.
    (4) Operate the engine until it has reached the specified operating 
temperature.
    (b) Engine testing. (1) Determine engine lubricating oil level 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 in compliance 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 locomotive alternator/generator.
    (4) Start cooling system.
    (5) Operate the engine until it has reached the specified operating 
temperature.
    (6) Establish that the temperature of intake air entering the engine 
after compression and cooling in the charge air cooler(s), at each test 
point, is within 5 [deg]F of the temperatures 
which occur in locomotive operations at the ambient temperature 
represented by the test.
    (c) Both locomotive and engine testing. (1) Allow a minimum of 30 
minutes warm-up in the stand-by or operating mode prior to spanning the 
analyzers.
    (2) Replace or clean filter elements (sampling and analytical 
systems) as necessary, and then vacuum leak check the system, Sec. 
92.118. A pressure leak check is also permitted per Sec. 92.118. Allow 
the heated sample line, filters, and pumps 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, or 
O2) for a minimum of 30 minutes. The converter must be at 
operational temperature while purging.
    (ii) Check the sample system temperatures (see Sec. 92.114).
    (iii) Check the system response time (see Sec. 92.118). System 
response time

[[Page 466]]

may be applied from the most recent check of response time if all of the 
following are met:
    (A) The flow rate for each flow meter is equal to or greater than 
the flow rate recorded in Sec. 92.118.
    (B) For analyzers with capillaries, the response time from the 
sample/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 time 
determined for Capillary flow analyzers in Sec. 92.118 plus 2 seconds.
    (iv) A hang-up check is permitted.
    (v) A converter-efficiency check is permitted. The check need not 
conform to Sec. 92.121. The test procedure may be aborted at this point 
in the procedure in order to repair the NO2 to NO converter. 
If the test is aborted, the converter must pass the efficiency check 
described in Sec. 92.121 prior to starting the test run.
    (4) Introduce the zero-grade gases at the same flow rates and 
pressures used to calibrate the analyzers and zero the analyzers on the 
lowest anticipated range that will be used during the test. Immediately 
prior to each test, obtain a stable zero for each anticipated range that 
will be used during the test.
    (5) Introduce span gases to the instruments under the same flow 
conditions as were used for the zero gases. Adjust the instrument gains 
on the lowest range that will be used to give the desired value. Span 
gases should have a concentration greater than 70 percent of full scale 
for each range used. Immediately prior to each test, record the response 
to the span gas and the span-gas concentration for each range that will 
be used during the test.
    (6) Check the zero responses. If they have changed more than 0.5 
percent of full scale, repeat paragraphs (c)(4) and (5) of this section.
    (7) Check system flow rates and pressures. Note the values of gauges 
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 check as 
necessary.
    (2) Connect sampling equipment as appropriate for the sampling 
procedure employed; i.e. raw or dilute (evacuated sample collection 
bags, particulate, and raw exhaust sampling equipment, particulate 
sample filters, fuel flow measurement equipment, etc.).
    (3) Start the particulate dilution tunnel, the sample pumps, the 
engine cooling fan(s) (engine dynamometer testing) and the data 
collection and sampling systems (except particulate sample collection). 
The heated components of any continuous sampling systems(s) (if 
applicable) shall be preheated to their designated operating 
temperatures before the test begins.
    (4) Adjust the sample flow rates to the desired flow rates and set 
gas 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 or 
after the emission test).
    (6) Warm-up the locomotive or locomotive engines according to normal 
warm-up procedures.
    (7) Begin the EPA Test Sequence for Locomotives and Locomotive 
Engines (see Sec. 92.124). Record all required general and test data 
throughout the duration of the test sequence.
    (i) Mark the start of the EPA Test Sequence for Locomotives and 
Locomotive Engines on all data records.
    (ii) Begin emission measurement after completing the warmup phase of 
the EPA Test Sequence for Locomotives and Locomotive Engines, as 
specified in paragraph (b) of this section. Mark the start and end of 
each mode on all data records.
    (iii) A mode shall be voided where the requirements of this subpart 
that apply to that test mode are not met. This includes the following:
    (A) The data acquisition is terminated prematurely; or
    (B) For engine testing, the engine speed or power output exceeds the 
tolerance bands established for that mode; or
    (C) Measured concentrations exceed the range of the instrument; or
    (D) The test equipment malfunctions.

[[Page 467]]

    (iv) Modes within the test sequence shall be repeated if it is 
voided during the performance of the test sequence. A mode can be 
repeated by:
    (A) Repeating the two preceding modes and then continuing with the 
test sequence, provided that the locomotive or engine is not shut down 
after the voided test mode; or
    (B) Repeating the preceding mode and then continuing with the test 
sequence from that point, provided that the locomotive or engine is not 
operated in any mode with lower power than the preceding mode after the 
voided test mode. For example, if the Notch 2 mode is voided, then the 
locomotive or engine would be returned to Notch 1 while any repairs are 
made.
    (b) Sampling and measurement timing. (1) Gaseous emissions shall be 
sampled and measured continuously.
    (2)(i) Sampling of particulate emissions from the raw exhaust (for 
dilution) shall be conducted continuously.
    (ii) Sampling of particulates from the diluted exhaust shall begin 
within ten seconds after the beginning of each test mode, and shall end 
six minutes after the beginning of each test mode.
    (iii) Sampling of CO2 in the dilution air and diluted 
exhaust does not need to be continuous, but the measurements used for 
the calculations must be made after the first two minutes of each mode.
    (3) Fuel flow rate shall be measured continuously. The value 
reported for the fuel flow rate shall be a one-minute average of the 
instantaneous fuel flow measurements taken during the last minute of the 
minimum sampling period listed in Table B124-1 in Sec. 92.124; except 
for testing during idle modes, where it shall be a three-minute average 
of the instantaneous fuel flow measurements taken during the last three 
minutes of the minimum sampling period listed in Table B124-1 in Sec. 
92.124. Sampling periods greater than one minute are allowed, consistent 
with good engineering practice. Fuel flow averaging periods should 
generally match the emission sampling periods as closely as is 
practicable.
    (4) Engine power shall be measured continuously. The value reported 
for the engine power shall be a one-minute average of the instantaneous 
power measurements taken during the last minute of the minimum sampling 
period listed in Table B124-1 in Sec. 92.124.
    (c) Exhaust gas measurements. (1) Should the analyzer response 
exceed 100 percent of full scale or respond less than 15 percent of full 
scale, the next higher or lower analyzer range shall be used.
    (2) Each analyzer range that may be used during a test sequence must 
have the zero and span responses recorded prior to the execution of the 
test sequence. Only the range(s) used to measure the emissions during a 
test sequence are required to have their zero and span recorded 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 such 
changes do not cause a mode to be voided.
    (5) A hang-up check is permitted between test modes, provided such 
changes do not cause a mode to be voided.
    (6) If, during the emission measurement portions of a test, the 
value of the gauges downstream of the NDIR analyzer(s) differs by more 
than 2 inches of water from the pretest value, the 
test is void.
    (7)(i) For bag samples, as soon as possible transfer the exhaust and 
dilution air bag samples to the analytical system and process the 
samples.
    (ii) A stabilized reading of the exhaust sample bag on all 
applicable analyzers shall be made within 20 minutes of the end of the 
sample collection phase of the mode.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40454, July 13, 2005]



Sec. 92.127  Emission measurement accuracy.

    (a) Good engineering practice dictates that exhaust emission sample 
analyzer readings below 15 percent of full scale chart deflection should 
generally not be used.
    (b) Some high resolution read-out systems such as computers, data 
loggers, etc., can provide sufficient accuracy and resolution below 15 
percent of full scale. Such systems may be used

[[Page 468]]

provided that additional calibrations are made to ensure the accuracy of 
the calibration curves. The following procedure for calibration below 15 
percent of full scale may be used:
    (1) If a 16-point gas divider is used, 50 percent of the calibration 
points shall be below 10 percent of full scale. The gas divider shall 
conform to the accuracy requirements specified in Sec. 92.112.
    (2) If a 7- or 9-point gas divider is used, the gas divider shall 
conform to the accuracy requirements specified in Sec. 92.112, and 
shall be used according to the following procedure:
    (i) Span the full analyzer range using a top range calibration gas 
meeting the calibration gas accuracy requirements of Sec. 92.112.
    (ii) Generate a calibration curve according to, and meeting the 
applicable requirements of Sec. Sec. 92.118 through 92.122.
    (iii) Select a calibration gas (a span gas may be used for 
calibrating the CO2 analyzer) with a concentration between 
the 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 gas 
standards, or other standards approved by the Administrator.
    (iv) Using the calibration curve fitted to the points generated in 
paragraphs (b)(2)(i) and (ii) of this section, check the concentration 
of the gas selected in paragraph (b)(2)(iii) of this section. The 
concentration derived from the curve shall be within 2.3 percent (2.8 percent for 
CO2 span gas) of the gas' original named concentration.
    (v) Provided the requirements of paragraph (b)(2)(iv) of this 
section are met, use the gas divider with the gas selected in paragraph 
(b)(2)(iii) of this section and determine the remainder of the 
calibration points. Fit a calibration curve per Sec. Sec. 92.118 
through 92.122 for the entire analyzer range.



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 humidity 
exchange) petri dish and place in a weighing chamber meeting the 
specifications of Sec. 92.110(a) of this section for stabilization.
    (b) At the end of the stabilization period, weigh each filter on the 
microbalance. This reading is the tare weight and must be recorded.
    (c) The filter shall then be stored in a covered petri dish or a 
sealed filter holder until needed for testing. If the filters are 
transported to a remote test location, the filter pairs, stored in 
individual petri dishes, should be transported in sealed plastic bags to 
prevent contamination. At the conclusion of a test run, the filters 
should be removed from the filter holder, and placed face to face in a 
covered but unsealed petri dish, with the primary filter placed face up 
in the dish. The filters shall be weighed as a pair. If the filters need 
to be transported from a remote test site, back to the weighing chamber, 
the petri dishes should be placed in a sealed plastic bag to prevent 
contamination. Care should be taken in transporting the used filters 
such that they are not exposed to excessive, sustained direct sunlight, 
or excessive handling.
    (d) After the emissions test, and after the sample and back-up 
filters have been returned to the weighing room after being used, they 
must be conditioned for at least 1 hour but not more than 80 hours and 
then weighed. This reading is the gross weight of the filter and must be 
recorded.
    (e) The net weight of each filter is its gross weight minus its tare 
weight. Should the sample on the filter contact the petri dish or any 
other surface, the test is void and must be rerun.
    (f) The particulate filter weight (Pf) is the sum of the net weight 
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 primary 
and back-up filters as a pair. This reading is the tare weight and must 
be recorded.
    (2) After the emissions test, in removing the filters from the 
filter holder, the back-up filter is inverted on top of the primary 
filter. They must then be conditioned in the weighing chamber for at 
least 1 hour but not more than 80 hours. The filters are then weighed as 
a pair. This reading is the gross weight of the filters (Pf) and must be 
recorded.

[[Page 469]]

    (3) Paragraphs (a), (c), and (e) of this section apply to this 
option, except that the word ``filter'' is replaced by ``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 equipment 
is used the following is required:
    (1) The response complies with Sec. 92.130.
    (2) The response required in paragraph (a)(1) of this section may be 
stored on long-term computer storage devices such as computer tapes, 
storage discs, or they may be printed in a listing for storage. In 
either case a chart recorder is not required and records from a chart 
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 ADC 
equipment are subject to the calibration specifications in Sec. Sec. 
92.118 through 92.122, as if the ADC equipment were part of the 
analyzer.
    (b) Data records from any one or a combination of analyzers may be 
stored as chart recorder records.
    (c) Software zero and span.
    (1) The use of ``software'' zero and span is permitted. The process 
of software zero and span refers to the technique of initially adjusting 
the analyzer zero and span responses to the calibration curve values, 
but for subsequent zero and span checks the analyzer response is simply 
recorded without adjusting the analyzer gain. The observed analyzer 
response recorded from the subsequent check is mathematically corrected 
back to the calibration curve values for zero and span. The same 
mathematical correction is then applied to the analyzer's response to a 
sample of exhaust gas in order to compute the true sample concentration.
    (2) The maximum amount of software zero and span mathematical 
correction is 10 percent of full scale chart 
deflection.
    (3) Software zero and span may be used to switch between ranges 
without adjusting the gain of the analyzer.
    (4) The software zero and span technique may not be used to mask 
analyzer drift. The observed chart deflection before and after a given 
time period or event shall be used for computing the drift. Software 
zero and span may be used after the drift has been computed to 
mathematically adjust any span drift so that the ``after'' span check 
may be transformed into the ``before'' span check for the next mode.
    (d) For sample analysis perform the following sequence:
    (1) Warm-up and stabilize the analyzers; clean and/or replace filter 
elements, conditioning columns (if used), etc., as necessary.
    (2) Leak check portions of the sampling system that operate at 
negative 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 sampling system:
    (i) Zero the analyzer using zero air introduced at the analyzer 
port.
    (ii) Flow zero air through the overflow sampling system, where an 
overflow system is used. Check the analyzer response.
    (iii) If the overflow zero response exceeds the analyzer zero 
response 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 used prior 
to the beginning of the test sequence. The span gases shall have a 
concentration between 75 and 100 percent of full scale chart deflection. 
The flow rates and system pressures shall be approximately the same as 
those encountered during sampling. The HFID analyzer shall be zeroed and 
spanned through the overflow sampling system, where an overflow system 
is used.
    (6) Re-check zero response. If this zero response differs from the 
zero response recorded in paragraph (d)(5) of this section by more than 
1 percent of full scale, then paragraphs (d) (4), (5),

[[Page 470]]

and (6) of this section should be repeated.
    (7) If a chart recorder is used, identify and record the most recent 
zero and span response as the pre-analysis values.
    (8) If ADC equipment is used, electronically record the most recent 
zero and span response as the pre-analysis values.
    (9) Measure (or collect a sample of) the emissions continuously 
during 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 flow rates and 
system pressures used in paragraph (d)(5) of this section.
    (10)(i) Collect background HC, CO, CO2, and 
NOX in a sample bag (optional).
    (ii) Measure the concentration of CO2 in the dilution air 
and the diluted exhaust for particulate measurements.
    (11) Perform a post-analysis zero and span check for each range used 
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 3 percent 
for HC, or 2 percent for NOX. CO, and CO2, of full 
scale chart deflection, or the test is void. (If the HC drift is greater 
than 3 percent of full-scale chart deflection, hydrocarbon hang-up is 
likely.)
    (13) Determine HC background levels (if necessary) by introducing 
the background sample into the overflow sample system.
    (14) Determine background levels of NOX. CO, or 
CO2 (if necessary).
    (e) HC hang-up. If HC hang-up is indicated, the following 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 analyzer 
ports.
    (4) Analyze the background air through the entire sample probe 
system.
    (5) If the difference between the readings obtained is 2 percent or 
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-state 
concentration measurement, measured after 300 seconds (or 840 seconds 
for notch 8) of testing shall be used instead of an integrated 
concentration for the calculations in Sec. 92.132 if the concentration 
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-state 
concentration measurement, measured after 300 seconds (or 840 seconds 
for notch 8) of testing shall be used. The provisions of paragraphs (b) 
through (f) of this section do not apply for CO and CO2 
emissions.
    (b) (1) The steady-state concentration is considered representative 
of the entire measurement period if the time-weighted concentration is 
not more than 10 percent higher than the steady-state concentration. The 
time-weighted concentration is determined by integrating the 
concentration response (with respect to time in seconds) over the first 
360 seconds (or 900 seconds for notch 8) of measurement, and dividing 
the area by 360 seconds (or 900 seconds for notch 8).
    (2) A steady-state concentration is considered representative of the 
entire measurement period if the estimated peak area is not more than 10 
percent of the product of the steady-state concentration and 360 seconds 
(or 900 seconds for notch 8). The estimated peak area is calculated as 
follows, and as shown in Figure B130-1 of this section):
    (i) Draw the peak baseline as a straight horizontal line 
intersecting the steady-state response.
    (ii) Measure the peak height from the baseline with the same units 
as the steady-state concentration; this value is h.

[[Page 471]]

    (iii) Bisect the peak height by drawing a straight horizontal line 
halfway between the top of the peak and the baseline.
    (iv) Draw a straight line from the top of the peak to the baseline 
such that it intersects the response curve at the same point at which 
the line described in paragraph (b)(2)(iii) of this section intersects 
the response curve.
    (v) Determine the time between the point at which the notch was 
changed 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, a 
measured response may not vary by more than 5 percent after the first 60 
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) of this 
section, one of the following values shall be used instead of a steady-
state or integrated concentration:
    (1) The highest value of the response that is measured after the 
first 60 seconds of measurement (excluding peaks lasting less than 5 
seconds, caused by such random events as the cycling of an air 
compressor); or
    (2) The highest 60-second, time-weighted, average concentration of 
the response after the first 60 seconds of measurement.
    (e) For responses not meeting the criterion in paragraph (c) of this 
section, the Administrator may require that the manufacturer or 
remanufacturer identify the cause of the variation, and demonstrate that 
it is not caused by a defeat device.
    (f) The integrated concentration used for calculations shall be from 
the highest continuous 120 seconds of measurement.
    (g) Compliance with paragraph (b)(2) of this section does not 
require calculation where good engineering practice allows compliance to 
be determined visually (i.e., that the area of the peak is much less 
than the limits set forth in paragraph (b)(2) of this section).

[[Page 472]]

                         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 test 
data:
    (a) Locate each throttle notch test mode, or percent rated power 
setting test mode. Each test mode starts when

[[Page 473]]

the throttle is placed in the mode and ends when the throttle is moved 
to the succeeding mode. The start of the first idle mode corresponds to 
the start 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-second 
average 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 the 
notch change (excluding peaks lasting less than 5 seconds, caused by 
such random events as the cycling of an air compressor) if opacity 
measurements are recorded graphically; or
    (ii) The average of the second by second values between 120 and 180 
seconds after the notch change if opacity measurements are recorded 
digitally.
    (c)(1) The values determined in paragraph (b) of this section shall 
be normalized by the following equation:
[GRAPHIC] [TIFF OMITTED] TR16AP98.008

Where:

Nn is the normalized percent opacity, Nm is the 
average measured percent opacity (peak or steady-state), and L is actual 
distance in meters from the point at which the light beam enters the 
exhaust plume to the point at which the light beam leaves the exhaust 
plume.

    (2) The normalized opacity values determined in paragraph (c)(1) of 
this section are the values that are compared to the standards of 
subpart A of this part for determination of compliance.
    (d) This smoke trace analysis may be performed by direct analysis of 
the recorder traces, or by computer analysis of data collected by 
automatic data collection equipment.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40455, July 13, 2005]



Sec. 92.132  Calculations.

    (a) Duty-cycle emissions. This section describes the calculation of 
duty-cycle emissions, in terms of grams per brake horsepower hour (g/
bhp-hr). The calculation involves the weighted summing of the product of 
the throttle notch mass emission rates and dividing by the weighted sum 
of the brake horsepower. The final reported 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 emission rate 
of pollutant i (i.e., HC, CO, NOX or PM and, if appropriate, 
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 Table B132-1 for 
mode j;
BHPj=the measured brake horsepower for mode j.

    (ii) Table B132-1 follows:

                         Table B132-1--Weighting Factors for Calculating Emission Rates
----------------------------------------------------------------------------------------------------------------
                                                               Locomotive not equipped  Locomotive equipped with
                                                                 with multiple idle       multiple idle notches
             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 474]]

 
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 equipped with 
normal and low idle, and with dynamic brake, the brake-specific emission 
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 the 
engine delivers as output (normally at the flywheel), as defined in 
Sec. 92.2.
    (i) For locomotive testing (or engine testing using a locomotive 
alternator/generator instead of a dynamometer), brake horsepower is 
calculated as:

BHP=HPout/Aeff+HPacc

Where:

HPout=Measured horsepower output of the alternator/generator.
Aeff=Efficiency of the alternator/generator.
HPacc=Accessory horsepower.

    (ii) For engine dynamometer testing, brake horsepower is determined 
from the engine speed and torque.
    (4) For locomotive equipped with features that shut the engine off 
after prolonged periods of idle, the measured mass emission rate 
Mi1 (and Mi1a as applicable) shall be multiplied 
by a factor equal to one minus the estimated fraction reduction in 
idling time that will result in use from the shutdown feature. 
Application of this adjustment is subject to the Administrator's 
approval.
    (b) Throttle notch emissions. This paragraph (b) describes the 
calculation of throttle notch emissions for all operating modes, 
including: idle (normal and low, as applicable); dynamic brake; and 
traction power points. The throttle notch (operating mode) emission test 
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 brake 
horsepower-hour of each species i (i.e., HC, CO, NOX or PM 
and, if appropriate, THCE or NMHC) for each mode j:
    (i) EHC mode=HC grams/BHP-hr=MHC mode/Measured 
BHP in mode.

Where:

MHC mode=Mass HC emissions (grams per hour) for each test 
mode.

    (ii) ETHCE mode=THCE grams/BHP-hr=MTHCE mode/
Measured BHP in mode.

Where:

MTHCE mode (Total hydrocarbon equivalent mass emissions 
(grams per hour) for each test mode):
=MHCj+[Sigma] (Mij) (MWCp)/
MWCi
Mij=the mass emission rate oxygenated pollutant i for mode j.
MWCi=the molecular weight of pollutant i divided by the 
number of carbon atoms per molecule of pollutant i.
MWCp=the molecular weight of a typical petroleum fuel 
component divided by the number of carbon atoms per molecule of a 
typical petroleum fuel component=13.8756.

    (iii) ENMHC mode=NMHC grams/BHP-hr=MNMHC mode/
Measured BHP in mode.

Where:

MNMHC mode=Mass NMHC emissions (grams per hour) for each test 
mode.

    (iv) ECO mode=CO grams/BHP-hr=MCO mode/
Measured BHP in mode.

Where:

MCO mode=Mass CO emissions (grams per hour) for each test 
mode.

    (v) ENOx mode=NOX grams/BHP-
hr=MNOx mode/Measured BHP in mode.

Where:

MNOx mode=Mass NOX emissions (grams per hour) for 
each test mode.


[[Page 475]]


    (vi) EPM mode=PM grams/BHP-hr=MPM mode/
Measured BHP in mode.

Where:

MPM mode=Mass PM emissions (grams per hour) for each test 
mode.

    (vii) EAL mode=Aldehydes grams/BHP-
hr=MAL mode/Measured BHP in mode.
    (vii) EAL mode=Aldehydes grams/BHP-
hr=MAL mode/Measured BHP in mode.

Where:

MAL mode=Total aldehyde mass emissions (grams per hour) for 
each test mode.

    (2) Mass Emissions--Raw exhaust measurements. For raw exhaust 
measurements mass emissions (grams per hour) of each species for each 
mode:
    (i) General equations. (A) The mass emission rate, 
MX mode (g/hr), of each pollutant (HC, NOX. 
CO2, CO, CH4 CH3OH, 
CH3CH2OH, CH2O, 
CH3CH2O) for each operating mode for raw 
measurements 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 of 
pollutant X (ppm or ppmC) on a dry basis, MWX is the 
molecular weight of the pollutant (g/mol), DVol is the total exhaust 
flow rate (ft\3\/hr) on a dry basis, WX is the concentration of 
pollutant X (ppm or ppmC) on a wet basis, WVol is the total exhaust flow 
rate (ft\3\/hr) on a wet basis, Vm is the volume of one mole 
of gas at standard temperature and pressure (ft\3\/mol).

    (B) All measured volumes and volumetric flow rates must be corrected 
to standard temperature and pressure prior to calculations.
    (ii) The following abbreviations and equations apply to this 
paragraph (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, or carbon 
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 temperature and 
pressure (ft\3\/mole).
Wf=Mass flow-rate of fuel used in the engine, in grams/
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 for 
mass emission are shown here in multiple forms. One set of equations is 
used when sample is analyzed dry (equations where the concentrations are 
expressed as DX), and the other set is used when the sample is analyzed 
wet (equations where the concentrations are expressed as WX). When 
samples are analyzed for some constituents dry and for some constituents 
wet, the wet concentrations must be converted to dry concentrations, and 
the equations for dry concentrations used. Also, the equations for HC, 
NMHC, CO, and NOX have multiple forms that are algebraically 
equivalent: An explicit form that requires intermediate calculation of 
Vm and DVol or WVol; and an implicit form that uses only the 
concentrations (e.g., DCO) and the mass flow rate of the fuel. For these 
calculations, either form may be used.
    (A) Hydrocarbons and nonmethane hydrocarbons.
    (1) Hydrocarbons. (i) For petroleum-fueled engines:

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 476]]

    =((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 other organics such as 
methanol in exhaust as measured by the FID, ppm carbon equivalent.
rx=FID response to oxygenated speciesx(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 oxygenated species.
[Sigma]WX=The sum of concentrations WX for all oxygenated species.

    (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 other organics such as 
methane in exhaust as measured by the FID, ppm carbon equivalent.
rCH4=FID response to methane.
DCH4=Concentration of methane in exhaust as determined from the dry 
exhaust sample, ppm.
WCH4=Concentration of methane in exhaust as determined from the wet 
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) in mol/
ml.
AVi=Volume of absorbing reagent in impinger i (1 or 2) in ml.
DVolMS=Volume (standard ft\3\) of exhaust sample drawn 
through methanol impingers (dry).
WVolMS=Volume (standard ft\3\) of exhaust sample drawn 
through 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) in mol/ml.
AVi=Volume of absorbing reagent in impinger i (1 or 2) in ml.
DVolES=Volume (standard ft\3\) of exhaust sample drawn 
through ethanol impingers (dry).
WVolES=Volume (standard ft\3\) of exhaust sample drawn 
through 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 477]]


    (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 the cartridge in 
ml.
Ci=concentration of formaldehyde in impinger i (1 or 2) in 
mol/ml.
CR=concentration of formaldehyde in solvent rinse in mol/ml.
DVolFS=Volume (standard ft\3\) of exhaust sample drawn 
through formaldehyde sampling system (dry).
WVolFS=Volume (standard ft\3\) of exhaust sample drawn 
through 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
    x AV2)]/DVolAS
WCH3CHO=(Vm)(10\6\)[(C1xAV1)+C2
    x AV2)]/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 the cartridge in 
ml.
Ci=concentration of acetaldehyde in impinger i (1 or 2) in 
mol/ml.
CR=concentration of acetaldehyde in solvent rinse in mol/ml.
DVolAS=Volume (standard ft\3\) of exhaust sample drawn 
through acetaldehyde sampling system (dry).
WVolAS=Volume (standard ft\3\) of exhaust sample drawn 
through acetaldehyde sampling system (wet).

    (iv) Conversion of wet concentrations to dry concentrations. Wet 
concentrations are converted to dry concentrations using the following 
equation:

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 conversion 
factor KW is calculated from the fractional volume of water 
in the exhaust on a dry basis (DH2O=volume of water in exhaust/dry 
volume of exhaust). Precise calculation of the conversion factor 
KW must be done by iteration, since it requires the dry 
concentration of HC, but HC emissions are measured wet.
    (1) The conversion factor is calculated by first assuming DHC=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 to 
calculate DVolair, then DH2O, then KW, which 
allows 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 dry basis, 
measured, or calculated as:

[[Page 478]]

[GRAPHIC] [TIFF OMITTED] TR16AP98.010

    (3) The calculations are repeated using this estimate of DHC. If the 
new estimate for KW is not within one percent of the previous 
estimate, the iteration is repeated until the difference in 
KW between iterations is less than one percent.
    (B) Alternate calculation of DH2O (approximation). The following 
approximation may be used for DH2O instead of the calculation in 
paragraph (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. For dilute exhaust 
measurements mass emissions (grams per hour) of each species 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 each operating mode for bag measurements 
and diesel continuously heated sampling system measurements is 
determined from the following equation:

Mx mode=(Vmix)(Densityx)(Xconc
    )/(Vf)

Where:

x designates the pollutant (e.g., HC), Vmix is the total 
diluted exhaust volumetric flow rate (ft\3\/hr), Densityx is 
the specified density of the pollutant in the gas phase (g/ft\3\), 
Xconc is the fractional concentration of pollutant x (i.e., 
ppm/10\6\, ppmC/10\6\, or %/100), and Vf is the fraction of 
the raw exhaust that is diluted for analysis.

    (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 the 
dilution air to the raw exhaust sample for total dilution, calculated 
as:
[GRAPHIC] [TIFF OMITTED] TR16AP98.013

Where:

WCO2=Carbon dioxide concentration of the raw exhaust sample, in percent 
(wet).
WCO2e=Carbon dioxide concentration of the dilute exhaust 
sample, in percent (wet).
WCO2d=Carbon dioxide concentration of the dilution air, in 
percent (wet).


[[Page 479]]


    (B) Vmix=Diluted exhaust volumetric flow rate in cubic 
feet per hour corrected to standard conditions (528[deg]R, and 760 mm 
Hg).
    (C) Vf=Fraction of the total raw exhaust that is diluted 
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 grams per 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, 16.27 g/ft\3\ 
(0.5746 kg/m3) for 2 diesel, and 16.33 g/ft\3\ 
(0.5767 kg/m\3\) for other fuels, assuming an average carbon to hydrogen 
ratio of 1:1.93 for 1 petroleum diesel fuel, 1:1.80 for 
2 petroleum diesel fuel, and 1:1.85 for hydrocarbons in other 
fuels at standard conditions.
HCconc=Hydrocarbon concentration of the dilute exhaust sample 
corrected for background, in ppm carbon equivalent (i.e., equivalent 
propanex3).
HCe=Hydrocarbon concentration of the dilute exhaust bag 
sample, or for diesel continuous heated sampling systems, average 
hydrocarbon concentration of the dilute exhaust sample as determined 
from the integrated HC traces, in ppm carbon equivalent. For petroleum-
fueled engines, HCe is the FID measurement. For methanol-
fueled and ethanol-fueled engines:
FID HCe=Concentration of hydrocarbon plus methanol, ethanol 
and acetaldehyde in dilute exhaust as measured by the FID, ppm carbon 
equivalent.
rx=FID response to oxygenated species x (methanol, ethanol or 
acetaldehyde).
Xe=Concentration of species x (methanol, ethanol or 
acetaldehyde) in dilute exhaust as determined from the dilute exhaust 
sample, ppm carbon.
HCd=Hydrocarbon concentration of the dilution air as 
measured, in ppm carbon equivalent.

    (B) MNOx mode = Oxides of nitrogen emissions, in grams 
per 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 54.16 g/ft\3\ 
(1.913 kg/m\3\), assuming they are in the form of nitrogen dioxide, at 
standard conditions.
NOxconc=Oxides of nitrogen concentration of the dilute 
exhaust sample corrected for background, in ppm.
NOxe=Oxides of nitrogen concentration of the dilute exhaust 
bag sample as measured, in ppm.
NOxd=Oxides of nitrogen concentration of the dilution air as 
measured, in ppm.

    (C) MCO2 mode=Carbon dioxide emissions, in grams per hour 
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 dilute exhaust 
sample corrected for background, in percent.
CO2.=Carbon dioxide concentration of the dilute exhaust bag 
sample, in percent.
CO2.=Carbon dioxide concentration of the dilution air as 
measured, in percent.

    (D)(1) MCO mode=Carbon monoxide emissions, in grams 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 dilute exhaust 
sample corrected for background, water vapor, and CO2 
extraction, ppm.
COe=Carbon monoxide concentration of the dilute exhaust 
sample volume corrected for water vapor and carbon dioxide extraction, 
in ppm.
COe=(1-(0.01+0.005/[alpha])CO2.-
0.000323RH)COem, where [alpha] is the hydrogen to carbon 
ratio as measured for the fuel used.
COem=Carbon monoxide concentration of the dilute exhaust 
sample as measured, in ppm.
RH = Relative humidity of the dilution air, percent.
COd=Carbon monoxide concentration of the dilution air 
corrected for water vapor extraction, in ppm.

[[Page 480]]

COdm=Carbon monoxide concentration of the dilution air sample 
as measured, in ppm.

    (2) If a CO instrument that meets the criteria specified in 40 CFR 
part 1065, subpart C, is used without a sample dryer according to 40 CFR 
1065.145, COem must be substituted directly for 
COe and COdm must be substituted directly for 
COd.
    (E) MCH4 mode=Methane emissions corrected for background, 
in gram per hour by mode, are calculated using the following 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 exhaust corrected 
for background, in ppm.
CCH4e=Methane concentration in the dilute exhaust, in ppm.
CCH4d=Methane concentration in the dilution air, in ppm.

    (F) MCH3OH mode=Methanol emissions corrected for 
background, in gram per hour by mode, are calculated using the following 
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 exhaust 
corrected 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 from dilute 
exhaust, [deg]R.
TDM=Temperature of methanol sample withdrawn from dilution 
air, [deg]R.
PB=Barometric pressure during test, mm Hg.
VEM=Volume of methanol sample withdrawn from dilute exhaust, 
ft \3\.
VDM=Volume of methanol sample withdrawn from dilution air, ft 
\3\.
CS=GC concentration of aqueous sample drawn from dilute 
exhaust, [micro]g/ml.
CD=GC concentration of aqueous sample drawn from dilution 
air, [micro]g/ml.
AVS=Volume of absorbing reagent (deionized water) in impinger 
through which methanol sample from dilute exhaust is drawn, ml.
AVD=Volume of absorbing reagent (deionized water) in impinger 
through which methanol sample from dilution air is drawn, ml.
    1=first impinger.
    2=second impinger.

    (G) MC2H5OH mode=Ethanol emissions corrected for 
background, in gram per hour by mode, are calculated using the following 
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 54.23 g/ft \3\ (1.915 kg/
m \3\), at 68 [deg]F (20 [deg]C) and 760 mm Hg (101.3kPa) pressure.
CH3CH2OHconc=Ethanol concentration of 
the dilute exhaust corrected for background, in ppm.
CCH3CH2OHe=Ethanol concentration in the dilute exhaust, in 
ppm.
CCH3CH2OHd=Ethanol concentration in the dilution air, in ppm.
TEM= Temperature of ethanol sample withdrawn from dilute 
exhaust, [deg]R.
TDM=Temperature of ethanol sample withdrawn from dilution 
air, [deg]R.
PB=Barometric pressure during test, mm Hg.
VEM=Volume of ethanol sample withdrawn from dilute exhaust, 
ft \3\.
VDM=Volume of ethanol sample withdrawn from dilution air, ft 
\3\.
CS=GC concentration of aqueous sample drawn from dilute 
exhaust, [micro]g/ml.
CD=GC concentration of aqueous sample drawn from dilution 
air, [micro]g/ml.
AVS= Volume of absorbing reagent (deionized water) in 
impinger through which ethanol sample from dilute exhaust is drawn, ml.
AVD=Volume of absorbing reagent (deionized water) in impinger 
through which ethanol sample from dilution air is drawn, ml.
    1=first impinger.
    2=second impinger.

    (H) MCH2O mode=Formaldehyde emissions corrected for 
background, in gram per hour by mode, are calculated using the following 
equations:

MCH2O mode=(Vmix)(DensityCH2O) 
    ((CH2Oconc/10 \6\)/Vf
CH2Oconc=CCH2Oe-CCH2Od(1-(1/DF))

[[Page 481]]

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 35.36 g/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 dilute exhaust 
corrected for background, ppm.
CCH2Oe=Formaldehyde concentration in dilute exhaust, ppm.
CCH2Od=Formaldehyde concentration in dilution air, ppm.
CFDE=Concentration of DNPH derivative of formaldehyde from 
dilute exhaust sample in sampling solution, [micro]g/ml.
VAE=Volume of sampling solution for dilute exhaust 
formaldehyde sample, ml.
Q = Ratio of molecular weights of formaldehyde to its DNPH derivative = 
0.1429.
TEF=Temperature of formaldehyde sample withdrawn from dilute 
exhaust, [deg]R.
VSE=Volume of formaldehyde sample withdrawn from dilute 
exhaust, ft\3\.
PB=Barometric pressure during test, mm Hg.
CFDA=Concentration of DNPH derivative of formaldehyde from 
dilution air sample in sampling solution, [micro]g/ml.
VAA=Volume of sampling solution for dilution air formaldehyde 
sample, ml.
TDF=Temperature of formaldehyde sample withdrawn from 
dilution air, [deg]R.
VSA=Volume of formaldehyde sample withdrawn from dilution 
air, ft\3\.

    (I) MCH3CHO mode=Acetaldehyde emissions corrected for 
background, in grams per hour by mode, are calculated using the 
following 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 51.88 g/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 dilute exhaust 
corrected for background, ppm.
CCH3CHOe=Acetaldehyde concentration in dilute exhaust, ppm.
CCH3CHOd=Acetaldehyde concentration in dilution air, ppm.
CADE=Concentration of DNPH derivative of acetaldehyde from 
dilute exhaust sample in sampling solution, [micro]g/ml.
VAE=Volume of sampling solution for dilute exhaust 
acetaldehyde sample, ml.
Q=Ratio of molecular weights of acetaldehyde to its DNPH derivative
=0.182
TEF=Temperature of acetaldehyde sample withdrawn from dilute 
exhaust, [deg]R.
VSE=Volume of acetaldehyde sample withdrawn from dilute 
exhaust, ft\3\.
PB=Barometric pressure during test, mm Hg.
CADAConcentration of DNPH derivative of acetaldehyde from 
dilution air sample in sampling solution, [micro]g/ml.
VAA=Volume of sampling solution for dilution air acetaldehyde 
sample, ml.
TDF=Temperature of acetaldehyde sample withdrawn from 
dilution air, [deg]R.
VSA=Volume of acetaldehyde sample withdrawn from dilution 
air, ft\3\.

    (J) MNMHC mode=Nonmethane hydrocarbon emissions, in grams 
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=16.42 g/ft\3\ 
(0.5800 kg/m\3\) for  1 petroleum diesel fuel, 16.27 g/ft\3\ 
(0.5746 kg/m\3\) for 2 diesel, and 16.33 for other fuels, 
assuming an average carbon to hydrogen ratio of 1:1.93 for 1 
petroleum diesel fuel, 1:1.80 for 2 petroleum diesel fuel, and 
1:1.85 for nonmethane hydrocarbons in other fuels at standard 
conditions.
NMHCconc=Nonmethane hydrocarbon concentration of the dilute 
exhaust sample corrected for background, in ppm carbon equivalent (i.e., 
equivalent propane x 3).
NMHCe=Nonmethane hydrocarbon concentration of the dilute 
exhaust bag sample:
FID HCe=Concentration of hydrocarbons in dilute exhaust as 
measured by the FID, ppm carbon equivalent.
rm=FID response to methane.
CCH4e=Concentration of methane in dilute exhaust as 
determined from the dilute exhaust sample.
NMHCd=Nonmethane hydrocarbon concentration of the dilution 
air:
FID HCd=Concentration of hydrocarbons in dilute exhaust as 
measured by the FID, ppm carbon equivalent.
rm=FID response to methane.
CCH4d=Concentration of methane in dilute exhaust as 
determined from the dilute exhaust sample, ppm.


[[Page 482]]


    (4) Particulate exhaust emissions. The mass of particulate for a 
test mode determined from the following equations when a heat exchanger 
is used (i.e., no flow compensation), and when background filters are 
used to correct for background particulate levels:

MPM mode=Particulate emissions, grams per hour by mode.
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 diluted exhaust 
sample corrected for background, in g/ft \3\
MPMe=Measured mass of particulate for the exhaust sample, in 
mg, which is the difference in filter mass before and after the test.
MPMd=Measured mass of particulate for the dilution air 
sample, in mg, which is the difference in filter mass before and after 
the test.
Vsampe=Total wet volume of sample removed from the dilution 
tunnel for the exhaust particulate measurement, cubic feet at standard 
conditions.
Vsampd=Total wet volume of sample removed from the dilution 
tunnel for the dilution air particulate measurement, cubic feet at 
standard conditions.
DF=Dilution factor, which is the volumetric ratio of the dilution air 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 dry air.
Mair=Molecular weight of air=28.9645.
MH2O=Molecular weight of water=18.01534.
PDB=Saturation vapor pressure of water at the dry bulb 
temperature (Pa).
PDP=Saturation vapor pressure of water at the dewpoint 
temperature (Pa).
Pv=Partial pressure of water vapor (Pa).
PWB=Saturation vapor pressure of water at the wet bulb 
temperature (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) is 
defined as:

H=((KH) (Pv)/(BARO-Pv))

    (3) The partial pressure of water vapor may be determined using a 
dew 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 the 
engine intake air (Y) is defined as:

Y=((H)(Mair)/(MH2O)=Pv/(BARO-
    Pv)

    (d) NOX correction factor. (1) NOX emission 
rates (MNOx mode) shall be adjusted to account for the 
effects of humidity and temperature by multiplying each emission rate by 
KNOx, which is calculated 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 of fuel 
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 temperatures at or 
above 30 [deg]C.
T30 = The measured intake manifold air temperature in the 
locomotive when operated at 30 [deg]C (or 100 [deg]C, where intake 
manifold air temperature is not available).
TA = The measured intake manifold air temperature in the 
locomotive as tested (or

[[Page 483]]

the ambient temperature ( [deg]C), where intake manifold air temperature 
is not available).

    (e) Other calculations. Calculations other than those specified in 
this section may be used with the advance approval of the Administrator.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40455, July 13, 2005]



Sec. 92.133  Required information.

    (a) The required test data shall be grouped into the following two 
general categories:
    (1) Pre-test data. These data are general test data that must be 
recorded for each test. The data are of a more descriptive nature such 
as identification of the test engine, test site number, etc. As such, 
these data can be recorded at any time within 24 hours of the test.
    (2) Test data. These data are physical test data that must be 
recorded at the time of testing.
    (b) When requested, data shall be supplied in the format specified 
by the Administrator.
    (c) Pre-test data. The following shall be recorded, and reported to 
the Administrator for each test conducted for compliance with the 
provisions of this part:
    (1) Engine family identification (including subfamily 
identification, 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-up procedures, 
alternator generator efficiency curve.
    (4) Locomotive or engine and instrument operator(s).
    (5) Number of hours of operation accumulated on the locomotive or 
engine prior to beginning the testing.
    (6) Dates of most recent calibrations required by Sec. Sec. 92.115-
92.122.
    (7) All pertinent instrument information such as tuning (as 
applicable), gain, serial numbers, detector number, calibration curve 
number, etc. As long as this information is traceable, it may be 
summarized by system or analyzer identification numbers.
    (8) A description of the exhaust duct and sample probes, including 
dimensions and locations.
    (d) Test data. The physical parameters necessary to compute the test 
results and ensure accuracy of the results shall be recorded for each 
test conducted for compliance with the provisions of this part. 
Additional test data may be recorded at the discretion of the 
manufacturer or remanufacturer. Extreme details of the test measurements 
such as analyzer chart deflections will generally not be required on a 
routine basis to be reported to the Administrator for each test, unless 
a dispute about the accuracy of the data arises. The following types of 
data shall be required to be reported to the Administrator. The 
applicable Application Format for Certification will specify the exact 
requirements which may change slightly from year 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 the engine 
after compression and cooling in the charge air cooler(s). If testing is 
not performed on a locomotive, the corresponding temperatures when the 
engine is in operation in a locomotive at ambient conditions represented 
by the test.
    (5) Barometric pressure. (A central laboratory barometer may be 
used: Provided, that individual test cell barometric pressures are shown 
to be within 0.1 percent of the barometric 
pressure at the 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 analysis system 
components (if applicable).

[[Page 484]]

    (11) All measured flow rates, dilution factor, and fraction of 
exhaust diluted for diluted exhaust measurements (as applicable) for 
each test mode.
    (12) Temperature of the dilute exhaust mixture at the inlet to the 
respective gas meter(s) or flow instrumentation used for particulate 
sampling.
    (13) The maximum temperature of the dilute exhaust mixture 
immediately 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. This includes the 
continuous trace and the steady-state value (or integrated value where 
required).
    (15) The stabilized pre-test weight and post-test weight of each 
particulate 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 the 
duty-cycle(s) applicable to the locomotive.
    (18) The smoke opacity for each test mode. This includes the 
continuous 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 information collection and recordkeeping 
requirements and will not become effective until approval has been given 
by the Office of Management and Budget.



                   Subpart C_Certification Provisions



Sec. 92.201  Applicability.

    The requirements of this subpart are applicable to manufacturers and 
remanufacturers of any locomotives and locomotive engines subject to 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 applicable 
standards and requirements, the manufacturer or remanufacturer must 
submit to the Administrator a completed application for a certificate of 
conformity.
    (b) The application must be approved and signed by the authorized 
representative of the manufacturer or remanufacturer.
    (c) The application will be updated and corrected by amendment as 
provided for in Sec. 92.210 to accurately reflect the manufacturer's or 
remanufacturer's production.
    (d) Required content. Each application must include the following 
information:
    (1)(i) A description of the basic engine design including, but not 
limited to, the engine family specifications, the provisions of which 
are contained in Sec. 92.204;
    (ii)(A) For freshly manufactured locomotives, a description of the 
basic locomotive design;
    (B) For freshly manufactured engines for use in remanufactured 
locomotives, a description of the locomotive designs in which the 
engines are to be used;
    (C) For remanufactured locomotives, a description of the basic 
locomotive designs to which the remanufacture system will be applied;
    (iii) A list of distinguishable configurations to be included in the 
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., degrees 
before or after top-dead-center), and any functional dependence of such 
timing on other operational parameters (e.g., engine coolant 
temperature);
    (iii) Each auxiliary emission control device (AECD); and
    (iv) All fuel system components to be installed on any production or 
test locomotive(s) or engine(s);
    (3) A description of the test locomotive or engine;
    (4) Special or alternate test procedures, if applicable;

[[Page 485]]

    (5) A description of the operating cycle and the period of operation 
necessary to accumulate service hours on the test locomotive or 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 associated production 
tolerances;
    (ii) The intended adjustable range, and the physically adjustable 
range;
    (iii) The limits or stops used to limit adjustable ranges;
    (iv) Production tolerances of the limits or stops used to establish 
each physically adjustable range; and
    (v) Information relating to why the physical limits or stops used to 
establish the physically adjustable range of each parameter, or any 
other means used to inhibit adjustment, are the most effective means 
possible of preventing adjustment of parameters to settings outside the 
manufacturer's or remanufacturer's specified adjustable ranges on in-use 
engines;
    (7) For families participating in the averaging, banking, and 
trading 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 be 
used;
    (10) All test data obtained by the manufacturer or remanufacturer on 
each test engine or locomotive;
    (11) The intended useful life period for the engine family, in 
accordance with Sec. 92.9(a);
    (12) The intended deterioration factors for the engine family, in 
accordance with Sec. 92.9(b)(2);
    (13) An unconditional statement certifying that all locomotives and 
engines included the engine family comply with all requirements of this 
part and the Clean Air Act.
    (e) At the Administrator's request, the manufacturer or 
remanufacturer must supply such additional information as may be 
required to evaluate the application.
    (f)(1) If the manufacturer or remanufacturer, submits some or all of 
the information specified in paragraph (d) of this section in advance of 
its full application for certification, the Administrator shall review 
the information and make the determinations required in Sec. 92.208(d) 
within 90 days of the manufacturer's or remanufacturer's submittal.
    (2) The 90-day decision period is exclusive of any elapsed time 
during which EPA is waiting for additional information requested from a 
manufacturer or remanufacturer regarding an adjustable parameter (the 
90-day period resumes upon receipt of the manufacturer's or 
remanufacturer's response). For example, if EPA requests additional 
information 30 days after the manufacturer or remanufacturer submits 
information under paragraph (f)(1) of this section, then the 
Administrator would make a determination within 60 days of the receipt 
of the requested information from the manufacturer or remanufacturer.
    (g)(1) The Administrator may modify the information submission 
requirements of paragraph (d) of this section, provided that all of the 
information specified therein is maintained by the manufacturer or 
remanufacturer as required by Sec. 92.215, and amended, updated, or 
corrected as necessary.
    (2) For the purposes of this paragraph (g), Sec. 92.215 includes 
all information specified in paragraph (d) of this section whether or 
not such information is actually submitted to the Administrator for any 
particular model year.
    (3) The Administrator may review a manufacturer's or 
remanufacturer's records at any time. At the Administrator's discretion, 
this review may take place either at the manufacturer's or 
remanufacturer's facility or at another facility designated by the 
Administrator.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40455, July 13, 2005]



Sec. 92.204  Designation of engine families.

    This section specifies the procedure and requirements for grouping 
of engines into engine families.
    (a) Manufacturers and remanufacturers shall divide their locomotives 
and locomotive engines into groupings of locomotives and locomotive 
engines which are expected to have similar emission characteristics 
throughout

[[Page 486]]

their useful life. Each group shall be defined as a separate engine 
family. Freshly manufactured locomotives may not be included in the same 
engine family as remanufactured locomotives. Freshly manufactured 
engines may be included in the same engine family as remanufactured 
locomotives, provided such engines are used as replacement engines for 
locomotive models included in the engine family.
    (b) For Tier 1 and Tier 2 locomotives and locomotive engines, the 
following 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 temperature within 
desired limits (thermostat, on-off radiator fan(s), radiator shutters, 
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, timing 
characteristics (i.e., the deviation of the timing curves from the 
optimal fuel economy timing curve must be similar in degree);
    (8) The combustion chamber configuration and the surface-to-volume 
ratio of the combustion chamber when the piston is at top dead center 
position, using nominal combustion chamber dimensions;
    (9) The location of the piston rings on the piston;
    (10) The method of air aspiration (turbocharged, supercharged, 
naturally aspirated, Roots blown);
    (11) The turbocharger or supercharger general performance 
characteristics (e.g., approximate boost pressure, approximate response 
time, approximate size relative to engine displacement);
    (12) The type of air inlet cooler (air-to-air, air-to-liquid, 
approximate degree to which inlet air is cooled);
    (13) The intake manifold induction port size and configuration;
    (14) The type of fuel and fuel system configuration;
    (15) The configuration of the fuel injectors and approximate 
injection pressure;
    (16) The type of fuel injection system controls (i.e., mechanical or 
electronic);
    (17) The type of smoke control system;
    (18) The exhaust manifold port size and configuration; and
    (19) The type of exhaust aftertreatment system (oxidation catalyst, 
particulate trap), and characteristics of the aftertreatment system 
(catalyst loading, converter size vs engine size).
    (c) For Tier 0 locomotives and locomotive engines, the following 
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 temperature within 
desired limits (thermostat, on-off radiator fan(s), radiator shutters, 
etc.);
    (3) The approximate bore and stroke dimensions;
    (4) The approximate location of the intake and exhaust valves (or 
ports);
    (5) The combustion chamber general configuration and the approximate 
surface-to-volume ratio of the combustion chamber when the piston is at 
top dead center position, using nominal combustion chamber dimensions;
    (6) The method of air aspiration (turbocharged, supercharged, 
naturally aspirated, Roots blown);
    (7) The type of air inlet cooler (air-to-air, air-to-liquid, 
approximate degree to which inlet air is cooled);
    (8) The type of fuel and general fuel system configuration;
    (9) The general configuration of the fuel injectors and approximate 
injection pressure; and
    (10) The fuel injection system control type (electronic or 
mechanical).
    (d) Upon request by the manufacturer or remanufacturer, locomotives 
or locomotive engines that are eligible to be included in the same 
engine family based on the criteria in paragraph (b) or (c) of this 
section may be divided

[[Page 487]]

into different engine families. This request must be accompanied by 
information the manufacturer or remanufacturer believes supports the 
addition of these different engine families. For the purposes of 
determining whether an engine family is a small engine family in Sec. 
92.603(a)(2), EPA will consider the number of locomotives or locomotive 
engines that could have been classed together under paragraph (b) or (c) 
of this section, instead of the number of locomotives or locomotive 
engines that are included in a subdivision allowed by this paragraph 
(d).
    (e) Upon request by the manufacturer or remanufacturer, the 
Administrator may allow locomotives or locomotive engines that would be 
required to be grouped into separate engine families based on the 
criteria in paragraph (b) or (c) of this section to be grouped into a 
single engine family if the manufacturer or remanufacturer demonstrates 
that similar emission characteristics will occur. This request must be 
accompanied by emission information supporting the appropriateness of 
such combined engine families.
    (f) Remanufactured Tier 2 locomotives may be included in the same 
engine family as freshly manufactured Tier 2 locomotives, provided such 
engines are used for locomotive models included in the engine family.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40455, July 13, 2005; 
73 FR 37195, June 30, 2008]



Sec. 92.205  Prohibited controls, adjustable parameters.

    (a) Any system installed on, or incorporated in, a new locomotive or 
new locomotive engine to enable such locomotive or locomotive engine to 
conform to standards contained in this part:
    (1) Shall not in its operation or function cause significant (as 
determined by the Administrator) emission into the ambient air of any 
noxious or toxic substance that would not be emitted in the operation of 
such locomotive, or locomotive engine, without such system, except as 
specifically permitted by regulation;
    (2) Shall not in its operation, function or malfunction result in 
any unsafe condition endangering the locomotive, its operators, riders 
or property on a train, or persons or property in close proximity to the 
locomotive; and
    (3) Shall function during all in-use operation except as otherwise 
allowed by this part.
    (b) In specifying the adjustable range of each adjustable parameter 
on a new locomotive or new locomotive engine, the manufacturer or 
remanufacturer, shall:
    (1) Ensure that safe locomotive operating characteristics are 
available within that range, as required by section 202(a)(4) of the 
Clean Air Act, taking into consideration the production tolerances; and
    (2) To the maximum extent practicable, limit the physical range of 
adjustability to that which is necessary for proper operation of the 
locomotive or locomotive engine.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40455, July 13, 2005]



Sec. 92.206  Required information.

    (a) The manufacturer or remanufacturer shall perform the tests 
required by the applicable test procedures, and submit to the 
Administrator the information required by this section: Provided, 
however, that if requested by the manufacturer or remanufacturer, the 
Administrator may waive any requirement of this section for testing of 
locomotives, or locomotive engines, for which the required emission data 
are otherwise available.
    (b) Exhaust emission deterioration factors, with supporting data. 
The determination of the deterioration factors shall be conducted in 
accordance with good engineering practice to assure that the locomotives 
or locomotive engines covered by a certificate issued under Sec. 92.208 
will meet the emission standards in Sec. 92.8, in actual use for the 
useful life of the locomotive or locomotive engine.
    (c) Emission data, including exhaust methane data in the case of 
locomotives or locomotive engines subject to a non-methane hydrocarbon 
standard, on such locomotives or locomotive engines tested in accordance 
with applicable test procedures of subpart B of this part. These data 
shall include zero

[[Page 488]]

hour data, if generated. In lieu of providing the emission data required 
by paragraph (a) of this section, the Administrator may, upon request of 
the manufacturer or remanufacturer, allow the manufacturer or 
remanufacturer to demonstrate (on the basis of previous emission tests, 
development tests, or other testing information) that the engine or 
locomotive will conform with the applicable emission standards of Sec. 
92.8. The requirement to measure smoke emissions is waived for 
certification and production line testing of Tier 2 locomotives, except 
where there is reason to believe the locomotives do not meet the 
applicable smoke standards.
    (d) A statement that the locomotives and locomotive engines, for 
which certification is requested conform to the requirements in Sec. 
92.7, and that the descriptions of tests performed to ascertain 
compliance with the general standards in Sec. 92.7, and the data 
derived from such tests, are available to the Administrator upon 
request.
    (e) A statement that the locomotive, or locomotive engine, with 
respect to which data are submitted to demonstrate compliance with the 
applicable standards of this subpart, is in all material respects as 
described in the manufacturer's or remanufacturer's application for 
certification; that it has been tested in accordance with the applicable 
test procedures utilizing the fuels and equipment described in the 
application for certification; and that on the basis of such tests, the 
engine family conforms to the requirements of this part. If, on the 
basis of the data supplied and any additional data as required by the 
Administrator, the Administrator determines that the test locomotive, or 
test engine, was not as described in the application for certification 
or was not tested in accordance with the applicable test procedures 
utilizing the fuels and equipment as described in the application for 
certification, the Administrator may make the determination that the 
locomotive, or engine, does not meet the applicable standards. If the 
Administrator makes such a determination, he/she may withhold, suspend, 
or revoke the certificate of conformity under Sec. 92.208(c)(3)(i).

[63 FR 18998, Apr. 16, 1998, as amended at 73 FR 37195, June 30, 2008]



Sec. 92.207  Special test procedures.

    (a) Establishment of special test procedures by EPA. The 
Administrator may, on the basis of written application by a manufacturer 
or remanufacturer, establish special test procedures other than those 
set forth in this part, for any locomotive or locomotive engine that the 
Administrator determines is not susceptible to satisfactory testing 
under the specified test procedures set forth in subpart B of this part.
    (b) Use of alternate test procedures by manufacturer or 
remanufacturer. (1) A manufacturer or remanufacturer may elect to use an 
alternate test procedure provided that it is equivalent to the specified 
procedures with respect to the demonstration of compliance, its use is 
approved in advance by the Administrator, and the basis for the 
equivalence with the specified test procedures is fully described in the 
manufacturer's or remanufacturer's application.
    (2) The Administrator may reject data generated under alternate test 
procedures which do not correlate with data generated under the 
specified procedures.



Sec. 92.208  Certification.

    (a) This paragraph (a) applies to manufacturers of new locomotives 
and new locomotive engines. If, after a review of the application for 
certification, test reports and data acquired from a freshly 
manufactured locomotive or locomotive engine or from a development data 
engine, and any other information required or obtained by EPA, the 
Administrator determines that the application is complete and that the 
engine family meets the requirements of the Act and this part, he/she 
will issue a certificate of conformity with respect to such engine 
family except as provided by paragraph (c)(3) of this section. The 
certificate of conformity is valid for each engine family starting with 
the indicated effective date, but it is not valid for any production 
after December 31 of the model year for which it is issued (except as 
specified in Sec. 92.12). The certificate of conformity

[[Page 489]]

is valid upon such terms and conditions as the Administrator deems 
necessary or appropriate to ensure that the production engines covered 
by the certificate will meet the requirements of the Act and of this 
part.
    (b) This paragraph (b) applies to remanufacturers of locomotives and 
locomotive engines. If, after a review of the application for 
certification, test reports and data acquired from a remanufactured 
locomotive or locomotive engine or from a development data engine, and 
any other information required or obtained by EPA, the Administrator 
determines that the engine family meets the requirements of the Act and 
of this subpart, he/she will issue a certificate of conformity with 
respect to such engine family except as provided by paragraph (c)(3) of 
this section. The certificate of conformity is valid for each engine 
family from the date of issuance by EPA until 31 December of the model 
year or calendar year for which it is issued and upon such terms and 
conditions as the Administrator deems necessary or appropriate to assure 
that the production locomotives or engines covered by the certificate 
will meet the requirements of the Act and of this part.
    (c) This paragraph (c) applies to manufacturers and remanufacturers 
of locomotives and locomotive engines.
    (1) The manufacturer or remanufacturer shall bear the burden of 
establishing to the satisfaction of the Administrator that the 
conditions upon which the certificates were issued were satisfied or 
excused.
    (2) The Administrator will determine whether the test data included 
in the application represents all locomotives or locomotive engines of 
the engine family.
    (3) Notwithstanding the fact that any locomotive(s) or locomotive 
engine(s) may comply with other provisions of this subpart, the 
Administrator may withhold or deny the issuance of any certificate of 
conformity, or suspend or revoke any such certificate(s) which has 
(have) been issued with respect to any such locomotive(s) or locomotive 
engine(s) if:
    (i) The manufacturer or remanufacturer submits false or incomplete 
information in its application for certification thereof;
    (ii) The manufacturer or remanufacturer renders inaccurate any test 
data which it submits pertaining thereto or otherwise circumvents the 
intent of the Act, or of this part with respect to such locomotive or 
locomotive engine;
    (iii) Any EPA Enforcement Officer is denied access on the terms 
specified in Sec. 92.215 to any facility or portion thereof which 
contains any of the following:
    (A) A locomotive or locomotive engine which is scheduled to undergo 
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 which is 
scheduled to undergo emissions testing, or which is undergoing emissions 
testing, or which has undergone emissions testing for purposes of 
emissions certification; or
    (C) Any production locomotive or production locomotive engine which 
is or will be claimed by the manufacturer or remanufacturer to be 
covered by the certificate; or
    (D) Any step in the construction of a locomotive or locomotive 
engine, where such step may reasonably be expected to have an effect on 
emissions; or
    (E) Any records, documents, reports or histories required by this 
part to be kept concerning any of the items listed in paragraphs 
(c)(3)(iii)(A) through (D).
    (iv) Any EPA Enforcement Officer is denied ``reasonable assistance'' 
(as defined in Sec. 92.215).
    (4) In any case in which a manufacturer or remanufacturer knowingly 
submits false or inaccurate information or knowingly renders inaccurate 
or invalid any test data or commits any other fraudulent acts and such 
acts contribute substantially to the Administrator's decision to issue a 
certificate of conformity, the Administrator may deem such certificate 
void ab initio.
    (5) In any case in which certification of a locomotive or locomotive 
engine is to be withheld, denied, revoked or suspended under paragraph 
(c)(3) of this

[[Page 490]]

section, and in which the Administrator has presented to the 
manufacturer or remanufacturer involved reasonable evidence that a 
violation of Sec. 92.215 in fact occurred, the manufacturer or 
remanufacturer, if it wishes to contend that, even though the violation 
occurred, the locomotive or locomotive engine in question was not 
involved in the violation to a degree that would warrant withholding, 
denial, revocation or suspension of certification under paragraph (c)(3) 
of this section, shall have the burden of establishing that contention 
to the satisfaction of the Administrator.
    (6) Any revocation, suspension, or voiding of certification under 
paragraph (c)(3) of this section shall:
    (i) Be made only after the manufacturer or remanufacturer concerned 
has been offered an opportunity for a hearing conducted in accordance 
with Sec. 92.216; and
    (ii) Extend no further than to forbid the introduction into commerce 
of locomotives or locomotive engines previously covered by the 
certification which are still in the hands of the manufacturer or 
remanufacturer, except in cases of such fraud or other misconduct that 
makes the certification invalid ab initio.
    (7) The manufacturer or remanufacturer may request, within 30 days 
of receiving notification, that any determination made by the 
Administrator under paragraph (c)(3) of this section to withhold or deny 
certification be reviewed in a hearing conducted in accordance with 
Sec. 92.216. The request shall be in writing, signed by an authorized 
representative of the manufacturer or remanufacturer as applicable, and 
shall include a statement specifying the manufacturer's or 
remanufacturer's objections to the Administrator's determinations, and 
data in support of such objections. If the Administrator finds, after a 
review of the request and supporting data, that the request raises a 
substantial factual issue, he/she will grant the request with respect to 
such issue.
    (d) In approving an application for certification, the Administrator 
may specify:
    (1) A broader range of adjustability than recommended by the 
manufacturer or remanufacturer for those locomotive or engine parameters 
which are to be subject to adjustment, if the Administrator determines 
that it will not be practical to keep the parameter adjusted within the 
recommended range in use;
    (2) A longer useful life period, if the Administrator determines 
that the useful life of the locomotives and locomotive engines in the 
engine family, as defined in Sec. 92.2, is longer than the period 
specified by the manufacturer or remanufacturer; and/or
    (3) Larger deterioration factors, if the Administrator determines 
that the deterioration factors specified by the manufacturer or 
remanufacturer do not meet the requirements of Sec. 92.9(b)(2)(iv).
    (e) Within 30 days following receipt of notification of the 
Administrator's determinations made under paragraph (d) of this section, 
the manufacturer or remanufacturer may request a hearing on the 
Administrator's determinations. The request shall be in writing, signed 
by an authorized representative of the manufacturer or remanufacturer as 
applicable, and shall include a statement specifying the manufacturer's 
or remanufacturer's objections to the Administrator's determinations, 
and data in support of such objections. If, after review of the request 
and supporting data, the Administrator finds that the request raises a 
substantial factual issue, the manufacturer or remanufacturer shall be 
provided with a hearing in accordance with Sec. 92.216 with respect to 
such issue.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40455, July 13, 2005; 
73 FR 37195, June 30, 2008]



Sec. 92.209  Certification with multiple manufacturers or remanufacturers.

    (a) Where there are multiple persons meeting the definition of 
manufacturer or remanufacturer, each such person must comply with the 
requirements of this part that apply to manufacturers or 
remanufacturers. However, if one person complies with a requirement, 
then all such persons will be deemed to have complied with that specific 
requirement.
    (b) Where more than one entity meets the definition of manufacturer

[[Page 491]]

or remanufacturer for a particular locomotive or locomotive engine, and 
any one of the manufacturers or remanufacturers obtains a certificate of 
conformity covering such locomotive or locomotive engine, the 
requirements of subparts C, D, F, and G of this part shall apply to the 
manufacturer or remanufacturer that obtains the certificate of 
conformity. Other manufacturers or remanufacturers are required to 
comply with the requirements of subparts C, D, F, and G of this part 
only when notified by the Administrator. Such notification by the 
Administrator shall specify a reasonable time period in which the 
manufacturer or remanufacturer shall comply with the requirements 
identified in the notice.



Sec. 92.210  Amending the application and certificate of conformity.

    (a) The manufacturer or remanufacturer of locomotives or locomotive 
engines must notify the Administrator when changes to information 
required to be described in the application for certification are to be 
made to a product line covered by a certificate of conformity. This 
notification must include a request to amend the application or the 
existing certificate of conformity. Except as provided in paragraph (e) 
of this section, no manufacturer or remanufacturer shall make said 
changes or produce said locomotives or engines prior to receiving 
approval from EPA.
    (b) A manufacturer's or remanufacturer's request to amend the 
application or the existing certificate of conformity shall include the 
following information:
    (1) A full description of the change to be made in production, or of 
the locomotives or engines to be added;
    (2) Engineering evaluations or data showing that the locomotives or 
engines as modified or added will comply with all applicable emission 
standards; and
    (3) A determination whether the manufacturer's or remanufacturer's 
original test fleet selection is still appropriate, and if the original 
test fleet selection is determined not to be appropriate, test fleet 
selection(s) representing the locomotives or engines changed or added 
which would have been required if the locomotives or engines had been 
included in the original application for certification.
    (c) The Administrator may require the manufacturer or remanufacturer 
to perform tests on the locomotive or engine representing the locomotive 
or engine to be added or changed.
    (d) Decision by Administrator. (1) Based on the description of the 
amendment and data derived from such testing as the Administrator may 
require or conduct, the Administrator will determine whether the change 
or addition would still be covered by the certificate of conformity then 
in effect.
    (2) If the Administrator determines that the change or new 
locomotive(s) or engine(s) meets the requirements of this part and the 
Act, the appropriate certificate of conformity shall be amended.
    (3) If the Administrator determines that the changed or new 
locomotive(s) or engine(s) does not meet the requirements of this part 
and the Act, the certificate of conformity will not be amended. The 
Administrator shall provide a written explanation to the manufacturer or 
remanufacturer of the decision not to amend the certificate. The 
manufacturer or remanufacturer may request a hearing on a denial.
    (e) A manufacturer or remanufacturer may make changes in or 
additions to production locomotives or engines concurrently with the 
notification to the Administrator as required by paragraph (a) of this 
section, if the manufacturer or remanufacturer complies with the 
following requirements:
    (1) In addition to the information required in paragraph (b) of this 
section, the manufacturer or remanufacturer must supply supporting 
documentation, test data, and engineering evaluations as appropriate to 
demonstrate that all affected locomotives and engines will still meet 
applicable emission standards.
    (2) If, after a review, the Administrator determines additional 
testing is required, the manufacturer or remanufacturer must provide 
required test data within 30 days or cease production of the affected 
locomotives or engines.
    (3) If the Administrator determines that the affected locomotives or 
engines do not meet applicable requirements, the Administrator will 
notify

[[Page 492]]

the manufacturer or remanufacturer to cease production of the affected 
locomotives or engines and to recall and correct at no expense to the 
owner all affected locomotives or engines previously produced.
    (4) Election to produce locomotives or engines under this paragraph 
will be deemed to be a consent to recall all locomotives or engines 
which the Administrator determines do not meet applicable standards and 
to cause such nonconformity to be remedied at no expense to the owner.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40455, July 13, 2005]



Sec. 92.211  Emission-related maintenance instructions for purchasers.

    (a) The manufacturer or remanufacturer shall furnish or cause to be 
furnished to the ultimate purchaser or owner of each new locomotive, or 
new locomotive engine, subject to the standards prescribed in Sec. 
92.8, written instructions for the proper maintenance and use of the 
locomotive, or locomotive engine, as are reasonable and necessary to 
assure the proper functioning of the emissions control system, 
consistent with the applicable provisions of paragraph (b) of this 
section.
    (1) The maintenance and use instructions required by this section 
shall be clear and easily understandable.
    (2) The maintenance instructions required by this section shall 
contain a general description of the documentation which would 
demonstrate that the ultimate purchaser or any subsequent owner had 
complied with the instructions.
    (b)(1) The manufacturer or remanufacturer must provide in boldface 
type on the first page of the written maintenance instructions notice 
that maintenance, replacement, or repair of the emission control devices 
and systems may be performed by any locomotive or locomotive engine 
repair establishment or individual.
    (2) The instructions under paragraph (b)(1) of this section will not 
include any condition on the ultimate purchaser's or owner's using, in 
connection with such locomotive or locomotive engine, any component or 
service (other than a component or service provided without charge under 
the terms of the purchase agreement) which is identified by brand, 
trade, or corporate name. Such instructions also will not directly or 
indirectly distinguish between service performed by any other service 
establishments with which such manufacturer or remanufacturer has a 
commercial relationship and service performed by independent locomotive 
or locomotive engine repair facilities which such manufacturer or 
remanufacturer has no commercial relationship.
    (3) The prohibition of paragraph (b)(2) of this section may be 
waived by the Administrator if:
    (i) The manufacturer or remanufacturer satisfies the Administrator 
that the locomotive or locomotive engine will function properly only if 
the component or service so identified is used in connection with such 
locomotive or locomotive engine; and
    (ii) The Administrator finds that such a waiver is in the public 
interest.
    (c) The manufacturer or remanufacturer shall provide to the 
Administrator, no later than the time of the submission required by 
Sec. 92.203, a copy of the emission-related maintenance instructions 
which the manufacturer or remanufacturer proposes to supply to the 
ultimate purchaser or owner in accordance with this section. The 
Administrator will review such instructions to determine whether they 
are reasonable and necessary to assure the proper functioning of the 
locomotive's, or locomotive engine's emission control systems. If the 
Administrator determines that such instructions are not reasonable and 
necessary to assure the proper functioning of the emission control 
systems, he/she may disapprove the application for certification, or may 
require that the manufacturer or remanufacturer modify the instructions.
    (d) Any revision to the maintenance instructions which will affect 
emissions shall be supplied to the Administrator at least 30 days before 
being supplied to the ultimate purchaser or owner unless the 
Administrator consents to a lesser period of time, and is subject to the 
provisions of Sec. 92.210.

[[Page 493]]



Sec. 92.212  Labeling.

    (a) General requirements. Each new locomotive and new locomotive 
engine, subject to the emission standards of this part and covered by a 
certificate of conformity under Sec. 92.208, shall be labeled by the 
manufacturer or remanufacturer in the manner described in this section 
at the time of manufacture or remanufacture.
    (b) Locomotive labels. (1) Locomotive labels meeting the 
specifications of paragraph (b)(2) of this section shall be applied by:
    (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 locomotive 
engine to an FEL different from the last FEL or standard to which the 
locomotive was previously certified.
    (2)(i) Locomotive labels shall be permanent and legible and shall be 
affixed to the locomotive in a position in which it will remain readily 
visible.
    (ii) The label shall be attached to a locomotive chassis part 
necessary for normal operation and not normally requiring replacement 
during the service life of the locomotive. This label may not be 
attached to the engine.
    (iii) The label shall be affixed by the manufacturer or 
remanufacturer, in such manner that it cannot be removed without 
destroying or defacing the label. The label shall not be affixed to any 
equipment which is easily detached from such locomotive.
    (iv) The label may be made up of more than one piece permanently 
attached to the same locomotive part, except for Tier 0 locomotives, 
where you may attach it to separate parts.
    (v) The label shall contain the following information lettered in 
the English language in block letters and numerals, which shall be of a 
color that contrasts with the background of the label:
    (A) The label heading: Original Locomotive Emission Control 
Information. Manufacturers and remanufacturers may add a subheading to 
distinguish this label from the engine label described in paragraph (c) 
of this section.
    (B) Full corporate name and trademark of the manufacturer or 
remanufacturer.
    (C) Engine family and configuration identification.
    (D) A prominent unconditional statement of compliance with U.S. 
Environmental Protection Agency regulations which apply to locomotives 
and locomotive engines, as applicable:
    (1) This locomotive conforms to U.S. EPA regulations applicable to 
locomotives originally manufactured prior to January 1, 2002; or
    (2) This locomotive conforms to U.S. EPA regulations applicable to 
locomotives originally manufactured on or after January 1, 2002, but 
before January 1, 2005; or
    (3) This locomotive conforms to U.S. EPA regulations applicable to 
locomotives originally manufactured on or after January 1, 2005.
    (E) Date of locomotive original manufacture.
    (F) The useful life of the locomotive.
    (G) The standards and/or FELs to which the locomotive was certified.
    (c) Engine labels. (1) Engine labels meeting the specifications of 
paragraph (c)(2) of this section shall be applied by:
    (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 be 
affixed to the engine in a position in which it will be readily visible 
after installation of the engine in the locomotive.
    (ii) The label shall be attached to an engine part necessary for 
normal operation and not normally requiring replacement during the 
useful life of the locomotive.
    (iii) The label shall be affixed by the manufacturer or 
remanufacturer, in such manner that it cannot be removed without 
destroying or defacing the label. The label shall not be affixed to any 
equipment which is easily detached from such engine.
    (iv) The label may be made up of more than one piece, provided that 
all pieces are permanently attached to the same engine part.
    (v) The label shall contain the following information lettered in 
the

[[Page 494]]

English language in block letters and numerals, which shall be of a 
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 distinguish 
this label from the locomotive label described in paragraph (b) of this 
section.
    (B) Full corporate name and trademark of the manufacturer or 
remanufacturer.
    (C) Engine family and configuration identification.
    (D) A prominent unconditional statement of compliance with U.S. 
Environmental Protection Agency regulations which apply to locomotives 
and locomotive engines, as applicable:
    (1) This locomotive and locomotive engine conform to U.S. EPA 
regulations applicable to locomotives and locomotive engines originally 
manufactured prior to January 1, 2002; or
    (2) This locomotive and locomotive engine conform to U.S. EPA 
regulations applicable to locomotives and locomotive engines originally 
manufactured on or after January 1, 2002 and before January 1, 2005; or
    (3) This locomotive and locomotive engine conform to U.S. EPA 
regulations applicable to locomotives and locomotive engines originally 
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 or locomotive 
engine was certified.
    (G) Engine tune-up specifications and adjustments, as recommended by 
the manufacturer or remanufacturer, in accordance with the applicable 
emission standards, including but not limited to idle speed(s), 
injection timing or ignition timing (as applicable), valve lash (as 
applicable), as well as other parameters deemed necessary by the 
manufacturer or remanufacturer.
    (d) The provisions of this section shall not prevent a manufacturer 
or remanufacturer from also providing on the label any other information 
that such manufacturer or remanufacturer deems necessary for, or useful 
to, the proper operation and satisfactory maintenance of the locomotive 
or engine.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40456, July 13, 2005; 
73 FR 37195, June 30, 2008]



Sec. 92.213  Submission of locomotive and engine identification numbers.

    (a) Upon request of the Administrator, the manufacturer or 
remanufacturer of any locomotive or locomotive engine covered by a 
certificate of conformity shall, within 30 days of receipt of such 
request, 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 or 
locomotive engines covered by a certificate of conformity shall provide 
to the Administrator, within 60 days of the issuance of a certificate of 
conformity, an explanation of the elements in any locomotive or engine 
identification coding system in sufficient detail to enable the 
Administrator to identify those locomotives or engines which 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 information collection and recordkeeping 
requirements and will not become effective until approval has been given 
by the Office of Management and Budget.



Sec. 92.214  Production locomotives and engines.

    Any manufacturer or remanufacturer obtaining certification under 
this part shall supply to the Administrator, upon his/her request, a 
reasonable number of production locomotives or locomotive engines, as 
specified by the Administrator. The maximum number of locomotives or 
locomotive engines that may be supplied to the Administrator is five per 
model year. The locomotives or locomotive engines shall be 
representative of the engines, emission control systems, and fuel 
systems offered and typical of production locomotives or engines 
available for sale, or use by railroads, under the certificate. These 
locomotives or engines shall be supplied for testing at such time and 
place and for such reasonable periods as the Administrator may require.

[[Page 495]]



Sec. 92.215  Maintenance of records; submittal of information; right of entry.

    (a) Any manufacturer or remanufacturer subject to any of the 
standards or procedures prescribed in this subpart shall establish, 
maintain and retain the following adequately organized and indexed 
records:
    (1) General records. The records required to be maintained by this 
paragraph (a) shall consist of:
    (i) Identification and description of all certification locomotives 
or certification locomotive engines for which testing is required under 
this subpart.
    (ii) A description of all emission control systems which are 
installed on or incorporated in each certification locomotive or 
certification locomotive engine.
    (iii) A description of all procedures used to test each such 
certification locomotive or certification locomotive engine.
    (iv) A copy of all applications for certification, filed with the 
Administrator.
    (2) Individual records. (i) A brief history of each locomotive or 
locomotive engine used for certification under this subpart including:
    (A) In the case where a current production engine is modified for 
use as a certification engine or in a certification locomotive, a 
description of the process by which the engine was selected and of the 
modifications made. In the case where the certification locomotive or 
the engine for a certification locomotive is not derived from a current 
production engine, a general description of the buildup of the engine 
(e.g., whether experimental heads were cast and machined according to 
supplied drawings). In the cases in the previous two sentences, a 
description of the origin and selection process for fuel system 
components, ignition system components, intake-air pressurization and 
cooling-system components, cylinders, pistons and piston rings, exhaust 
smoke control system components, and exhaust aftertreatment devices as 
applicable, shall be included. The required descriptions shall specify 
the steps taken to assure that the certification locomotive or 
certification locomotive engine, with respect to its engine, drivetrain, 
fuel system, emission-control system components, exhaust aftertreatment 
devices, exhaust smoke control system components or any other devices or 
components as applicable, that can reasonably be expected to influence 
exhaust emissions will be representative of production locomotives or 
locomotive engines and that either: All components and/or locomotive or 
engine, construction processes, component inspection and selection 
techniques, and assembly techniques employed in constructing such 
locomotives or engines are reasonably likely to be implemented for 
production locomotives or engines; or that they are as close as 
practicable to planned construction and assembly process.
    (B) A complete record of all emission tests performed (except tests 
performed by EPA directly), including test results, the date and purpose 
of each test, and the number of miles or megawatt-hours accumulated on 
the locomotive or the number of megawatt-hours accumulated on the 
engine.
    (C) A record and description of all maintenance and other servicing 
performed, giving the date of the maintenance or service and the reason 
for it.
    (D) A record and description of each test performed to diagnose 
engine or emission control system performance, giving the date and time 
of the test and the reason for it.
    (E) A brief description of any significant events affecting the 
locomotive or engine during the period covered by the history and not 
described by an entry under one of the previous headings, including such 
extraordinary events as locomotive accidents or accidents involving the 
engine or dynamometer runaway.
    (ii) Each such history shall be started on the date that the first 
of any of the selection or buildup activities in paragraph (a)(2)(i)(A) 
of this section occurred with respect to the certification locomotive 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 the 
manufacturer or remanufacturer for a period of 8 years

[[Page 496]]

after issuance of all certificates of conformity to which they relate. 
Routine emission test records shall be retained by the manufacturer or 
remanufacturer for a period of one (1) year after issuance of all 
certificates of conformity to which they relate. Records may be retained 
as hard copy or reduced to computer disks, etc., depending on the record 
retention procedures of the manufacturer or remanufacturer: Provided, 
that in every case all the information contained in the hard copy shall 
be retained.
    (4) Nothing in this section limits the Administrator's discretion in 
requiring the manufacturer or remanufacturer to retain additional 
records or submit information not specifically required by this section.
    (5) Pursuant to a request made by the Administrator, the 
manufacturer or remanufacturer shall submit to him/her the information 
that is required to be retained.
    (6) EPA may void a certificate of conformity ab initio for a 
locomotive or engine family for which the manufacturer or remanufacturer 
fails to retain the records required in this section or to provide such 
information to the Administrator upon request.
    (b) The manufacturer or remanufacturer of any locomotive or 
locomotive engine subject to any of the standards prescribed in this 
part shall submit to the Administrator, at the time of issuance by the 
manufacturer or remanufacturer, copies of all instructions or 
explanations regarding the use, repair, adjustment, maintenance, or 
testing of such locomotive or engine, relevant to the control of 
crankcase, or exhaust emissions issued by the manufacturer or 
remanufacturer, for use by other manufacturers or remanufacturers, 
assembly plants, distributors, dealers, owners and operators. Any 
material not translated into the English language need not be submitted 
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 with 
the maintenance of records requirements of Sec. 92.308.
    (d)(1) Any manufacturer or remanufacturer who has applied for 
certification of a new locomotive or new locomotive engine subject to 
certification test under this subpart shall admit or cause to be 
admitted any EPA Enforcement Officer during operating hours on 
presentation of credentials to any of the following:
    (i) Any facility where any such tests or any procedures or 
activities connected with such test are or were performed;
    (ii) Any facility where any locomotive or locomotive engine which is 
being tested (or was tested, or is to be tested) is present;
    (iii) Any facility where any construction process or assembly 
process used in the modification or buildup of such a locomotive or 
engine into a certification locomotive or certification engine is taking 
place or has taken place; or
    (iv) Any facility where any record or other document relating to any 
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 or engine 
storage procedures, and to verify correlation or calibration of test 
equipment;
    (ii) To inspect and make copies of any such records, designs, or 
other documents, including those records specified in Subpart D of this 
part; and
    (iii) To inspect and/or photograph any part or aspect of any such 
certification locomotive, or certification locomotive engine and any 
components to be used in the construction thereof.
    (3) In order to allow the Administrator to determine whether or not 
production locomotives, or production locomotive engines, conform to the 
conditions upon which a certificate of conformity has been issued, or 
conform in all material respects to the design specifications applicable 
to those locomotives, or engines, as described in the

[[Page 497]]

application for certification for which a certificate of conformity has 
been issued, any manufacturer or remanufacturer shall admit any EPA 
Enforcement Officer on presentation of credentials to:
    (i) Any facility where any document, design or procedure relating to 
the translation of the design and construction of engines and emission 
related components described in the application for certification or 
used for certification testing into production locomotives or production 
engines is located or carried on;
    (ii) Any facility where any locomotives or locomotive engines, to be 
introduced into commerce are manufactured or remanufactured; and
    (iii) Any facility where records specified this section are located.
    (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 or 
remanufacture and other procedures;
    (ii) To inspect and make copies of any such records, documents or 
designs;
    (iii) To inspect and photograph any part or aspect of any such 
locomotive(s) or locomotive engine(s) and any component used in the 
assembly thereof that are reasonably related to the purpose of his/her 
entry; and
    (iv) To inspect and make copies of any records and documents 
specified this section.
    (5) Any EPA Enforcement Officer shall be furnished by those in 
charge of a facility being inspected with such reasonable assistance as 
he/she may request to help him/her discharge any function listed in this 
part. Each applicant for or recipient of certification is required to 
cause those in charge of a facility operated for its benefit to furnish 
such reasonable assistance without charge to EPA whether or not the 
applicant controls the facility.
    (6) The duty to admit or cause to be admitted any EPA Enforcement 
Officer applies to any facility involved in the manufacturing or 
assembling of locomotives, remanufacturing systems, or locomotive 
engines, or the installation of locomotive engines or remanufacturing 
systems, whether or not the manufacturer or remanufactuer owns or 
controls the facility in question and applies both to domestic and to 
foreign manufacturers or remanufacturers and facilities. EPA will not 
attempt to make any inspections which it has been informed that local 
law forbids. However, if local law makes it impossible to do what is 
necessary to insure the accuracy of data generated at a facility, no 
informed judgment that a locomotive or locomotive engine is certifiable 
or is covered by a certificate can properly be based on those data. It 
is the responsibility of the manufacturer or remanufacturer to locate 
its testing and manufacturing and/or remanufacturing facilities in 
jurisdictions where this situation will not arise.
    (7) For purposes of this section:
    (i) ``Presentation of credentials'' shall mean display of the 
document designating a person as an EPA Enforcement Officer.
    (ii) Where locomotive, component or engine storage areas or 
facilities are concerned, ``operating hours'' shall mean all times 
during which personnel other than custodial personnel are at work in the 
vicinity of the area or facility and have access to it.
    (iii) Where facilities or areas other than those covered by 
paragraph (d)(7)(ii) of this section are concerned, ``operating hours'' 
shall mean all times during which an assembly line is in operation or 
all times during which testing, maintenance, mileage (or service) 
accumulation, production or compilation of records, or any other 
procedure or activity related to certification testing, to translation 
of designs from the test stage to the production stage, or to locomotive 
(or engine) manufacture, remanufacture, or assembly is being carried out 
in a facility.
    (iv) ``Reasonable assistance'' includes, but is not limited to, 
clerical, copying, interpretation and translation services, the making 
available on request of personnel of the facility being inspected during 
their working hours to inform the EPA Enforcement Officer of how the 
facility operates and to answer his questions, and the performance on 
request of emissions tests on any locomotive (or engine) which is

[[Page 498]]

being, has been, or will be used for certification testing. Such tests 
shall be nondestructive, but may require appropriate mileage (or 
service) accumulation. A manufacturer or remanufacturer may be compelled 
to cause the personal appearance of any employee at such a facility 
before an EPA Enforcement Officer by written request for his appearance, 
signed by the Assistant Administrator for Air and Radiation or the 
Assistant Administrator for Enforcement and Compliance Assurance, served 
on the manufacturer or remanufacturer. Any such employee who has been 
instructed by the manufacturer or remanufacturer to appear will be 
entitled to be accompanied, represented and advised by counsel.
    (v) Any entry without 24 hour prior written or oral notification to 
the affected manufacturer or remanufacturer shall be authorized in 
writing by the Assistant Administrator for Air and Radiation or the 
Assistant Administrator for Enforcement and Compliance Assurance.
    (8) EPA may void a certificate of conformity ab initio for 
locomotives or locomotive engines introduced into commerce if the 
manufacturer or remanufacturer (or contractor for the manufacturer or 
remanufacturer, if applicable) fails to comply with any provision of 
this section.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40456, July 13, 2005]



Sec. 92.216  Hearing procedures.

    (a)(1) After granting a request for a hearing under Sec. 92.210 or 
Sec. 92.208, the Administrator shall designate a Presiding Officer for 
the hearing.
    (2) [Reserved]
    (3) The hearing shall be held as soon as practicable at a time and 
place fixed by the Administrator or by the Presiding Officer.
    (4) In the case of any hearing requested pursuant to Sec. 92.208, 
the Administrator may in his/her discretion direct that all argument and 
presentation of evidence be concluded within such fixed period not less 
than 30 days as he/she may establish from the date that the first 
written offer of a hearing is made to the manufacturer. To expedite 
proceedings, the Administrator may direct that 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 this 
section, the Presiding Officer will establish a hearing file. The file 
shall consist of the notice issued by the Administrator under Sec. 
92.210 or Sec. 92.208 together with any accompanying material, the 
request for a hearing and the supporting data submitted therewith, and 
all documents relating to the request for certification and all 
documents submitted therewith, and correspondence and other data 
material to the hearing.
    (2) The hearing file will be available for inspection by the 
applicant at the office of the Presiding Officer.
    (c) An applicant may appear in person, or may be represented by 
counsel or by any other duly authorized representative.
    (d)(1) The Presiding Officer, upon the request of any party, or in 
his/her discretion, may arrange for a prehearing conference at a time 
and place specified by him/her to consider the following:
    (i) Simplification of the issues;
    (ii) Stipulations, admissions of fact, and the introduction of 
documents;
    (iii) Limitation of the number of expert witnesses;
    (iv) Possibility of agreement disposing of all or any of the issues 
in dispute;
    (v) Such other matters as may aid in the disposition of the hearing, 
including such additional tests as may be agreed upon by the parties.
    (2) The results of the conference shall be reduced to writing by the 
Presiding Officer and made part of the record.
    (e)(1) Hearings shall be conducted by the Presiding Officer in an 
informal but orderly and expeditious manner. The parties may offer oral 
or written evidence, subject to the exclusion by the Presiding 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 that 
their statements may be subject to the provisions of 18 U.S.C. 1001 
which imposes penalties for knowingly making false statements or

[[Page 499]]

representations, or using false documents in any matter within the 
jurisdiction of any department or agency of the United States.
    (3) Any witness may be examined or cross-examined by the Presiding 
Officer, the parties, or their representatives.
    (4) Hearings shall be reported verbatim. Copies of transcripts of 
proceedings may be purchased by the applicant from the reporter.
    (5) All written statements, charts, tabulations, and similar data 
offered in evidence at the hearings shall, upon a showing satisfactory 
to the Presiding Officer of their authenticity, relevancy, and 
materiality, be received in evidence and shall constitute a part of the 
record.
    (6) Oral argument may be permitted in the discretion of the 
Presiding Officer and shall be reported as part of the record unless 
otherwise ordered by him/her.
    (f)(1) The Presiding Officer shall make an initial decision which 
shall include written findings and conclusions and the reasons or basis 
therefor on all the material issues of fact, law, or discretion 
presented on the record. The findings, conclusions, and written decision 
shall be provided to the parties and made a part of the record. The 
initial decision shall become the decision of the Administrator without 
further proceedings unless there is an appeal to the Administrator or 
motion for review by the Administrator within 30 days of the date the 
initial decision was filed.
    (2) On appeal from or review of the initial decision the 
Administrator shall have all the powers which he/she would have in 
making the initial decision including the discretion to require or allow 
briefs, oral argument, the taking of additional evidence or the 
remanding to the Presiding Officer for additional proceedings. The 
decision by the Administrator shall include written findings and 
conclusions and the reasons or basis therefor on all the material issues 
of fact, law, or discretion presented on the appeal or considered in the 
review.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40456, July 13, 2005]

    Effective Date Note: At 63 FR 19053, Apr. 16, 1998, Sec. 92.216 was 
added. This section contains information collection and recordkeeping 
requirements and will not become effective until approval has been given 
by the Office of Management and Budget.



   Subpart D_Certification Averaging, Banking, and Trading Provisions



Sec. 92.301  Applicability.

    Locomotive engine families subject to the provisions of subpart A of 
this part are eligible to participate in the certification averaging, 
banking, and trading program described in this subpart. The provisions 
of this subpart apply to manufacturers and remanufacturers of new 
locomotives and new locomotive engines manufactured or remanufactured 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 have otherwise been 
applicable had the locomotive or locomotive engine not been certified 
under this subpart to an FEL different than that standard.
    Broker means any entity that facilitates a trade between a buyer and 
seller.
    Buyer means the entity that receives credits as a result of trade or 
transfer.
    Reserved credits means credits that have been generated but have not 
yet been reviewed by EPA or used to demonstrate compliance under the 
averaging provisions of this subpart.
    Seller means the entity that provides credits during a trade or 
transfer.
    Transfer means to convey control of credits generated from an 
individual locomotive to the purchaser, owner or operator of the 
locomotive at the time of manufacture or remanufacture; or to convey 
control of previously generated credits from the purchaser, owner or 
operator of an individual locomotive to the manufacturer or 
remanufacturer at the time of manufacture or remanufacture.

[[Page 500]]



Sec. 92.303  General provisions.

    (a) Participation in the averaging, banking and trading program is 
voluntary. A manufacturer or remanufacturer may choose to involve some 
or all of its families in any or all aspects of the program.
    (b) An engine family is eligible to participate in the certification 
averaging, banking, and trading program for NOX and PM 
emissions if it is subject to regulation under this part with certain 
exceptions specified in paragraph (c) of this section. No averaging, 
banking and trading program is available for meeting the HC, CO, or 
smoke emission standards of this part.
    (c) Locomotives and locomotive engines may not participate in the 
certification averaging, banking, and trading program if they are 
exported. Only locomotive and locomotive engines certified under this 
part are eligible for inclusion in this certification averaging, 
banking, and trading program.
    (d) Averaging involves the generation of credits by a manufacturer 
or remanufacturer for use by that same manufacturer or remanufacturer in 
the same calendar year. A manufacturer or remanufacturer may use 
averaging during certification to offset an emission exceedance of an 
engine family caused by an FEL above the applicable emission standard, 
subject to the provisions of this subpart.
    (e) Banking involves the generation of credits by a manufacturer or 
remanufacturer in a given calendar year for use in a subsequent model 
year. A manufacturer or remanufacturer may bank actual credits only 
after the end of the calendar year and after EPA has reviewed the 
manufacturer's or remanufacturer's end-of-year reports. During the 
calendar year and before submittal of the end-of-year report, credits 
originally designated in the certification process for banking will be 
considered reserved and may be redesignated for trading or averaging in 
the end-of-year report. Credits declared for banking from the previous 
calendar year that have not been reviewed by EPA may be used in 
averaging or trading transactions. However, such credits may be revoked 
at a later time following EPA review of the end-of-year report or any 
subsequent audit actions.
    (f) Trading involves the sale of banked credits for use in 
certification of new locomotives and new locomotive engines under this 
part. Only banked credits may be traded; reserved credits may not be 
traded.
    (g) Credit transfer involves the conveying of control over credits, 
as defined in Sec. 92.302. Transferred credits can be used in averaging 
or in subsequent transfers. Transferred credits may also be reserved for 
later banking. Transferred credits may not be traded unless they have 
been previously banked.



Sec. 92.304  Compliance requirements.

    (a) Manufacturers or remanufacturers wishing to participate in 
certification averaging, banking and trading programs shall select a FEL 
for each engine family they wish to include. The level of the FEL shall 
be selected by the manufacturer or remanufacturer, subject to the upper 
limits described in paragraph (k) of this section. An engine family 
certified to an FEL is subject to all provisions specified in this part, 
except that the applicable FEL replaces the applicable NOX 
and PM emission standard for the family participating in the averaging, 
banking, and trading program.
    (b) A manufacturer or remanufacturer may certify one or more engine 
families at FELs above or below the applicable emission standard, 
provided the summation of the manufacturer's or remanufacturer's 
projected balance of all credit transactions in a given calendar year is 
greater than or equal to zero, as calculated for each family under Sec. 
92.305 and reported under Sec. 92.309.
    (c) Manufacturers and remanufacturers certifying engine families 
with FELs exceeding the applicable emission standard shall obtain 
emission 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 families 
with FELs below the applicable emission

[[Page 501]]

standard may generate emission credits to average, bank, trade, or 
transfer, or a combination thereof.
    (e) Credits may only be used for certification; they may not be used 
to remedy a violation of the FEL determined by production line or in-use 
testing. Credits may be used to allow subsequent production of engines 
for an engine family failing production line testing if the manufacturer 
elects to recertify to a higher FEL
    (f) If an FEL is changed after initial certification in any given 
model year, the manufacturer/remanufacturer must conduct production line 
testing to verify that the emission levels are achieved.
    (g) Manufacturers and remanufacturers participating in the 
averaging, banking and trading program must demonstrate compliance with 
the applicable emission standards at the end of the model year. 
Manufacturers and remanufacturers that have certified engine families to 
FELs above the applicable emission standards and do not have sufficient 
emission credits to offset the difference between the emission standard 
and the FEL for such engine family(ies) will be in violation of the 
conditions of the certificate of conformity for such engine family(ies). 
The certificates of conformity may be voided ab initio for those engine 
families.
    (h) In the event of a negative credit balance resulting from a 
credit trade or transfer, both the buyer(s) and the seller(s) are 
liable, except in cases involving fraud. Certificates of all engine 
families participating in a negative trade may be voided ab initio.
    (1) Where a buyer of credits is not responsible for causing the 
negative credit balance, it is only liable to supply additional credits 
equivalent to any amount of invalid credits that it used.
    (2) Credit holders responsible for the credit shortfall may be 
subject to the requirements of Sec. 92.309(g)(3).
    (i) Averaging sets. This subpart includes separate programs for 
compliance with each type of cycle-weighted standards in Sec. 92.8 
(i.e., line-haul and switch). Credits generated over the line-haul duty-
cycle may not be used for compliance with the switch duty-cycle, and 
credits generated over the switch duty-cycle may not be used for 
compliance with the line-haul duty-cycle.
    (j) Cross tier credit exchanges. Cross tier credit exchanges for 
NOX and PM emission credits may be exchanged between and 
among Tier 0, Tier 1, and Tier 2 engine families with the following 
exceptions:
    (1) For 2005 and 2006 model year freshly manufactured locomotives, 
manufacturers may use PM credits for all of their freshly manufactured 
engine families. Manufacturers may use NOX credits only for 
engine families that are projected to represent 75 percent or less of 
their total projected annual production of freshly manufactured 
locomotives. The remainder must comply with the Tier 2 NOX 
emission standards without the use of credits.
    (2) For 2007 and later model year freshly manufactured locomotives, 
manufacturers may use PM credits for all of their freshly manufactured 
engine families. Manufacturers may use NOX credits only for 
engine families that are projected to represent 50 percent or less of 
their total projected annual production of freshly manufactured 
locomotives. The remainder must comply with the Tier 2 NOX 
emission standards without the use of credits.
    (3) Credits generated from remanufactured locomotives prior to 
January 1, 2002 and which are banked may only be used for compliance 
with the Tier 1 or later emission standards.
    (k) Upper limits. The FELs for NOX and PM for new 
locomotives and new locomotive engines certified to the Tier 1 and Tier 
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 or 
remanufacturer 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;

[[Page 502]]

    (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 is 
different from the emission standard that would otherwise apply to the 
locomotive or locomotive engine are required to comply with that FEL for 
the remainder of their service lives, except as allowed by Sec. 
92.8(a)(4)(iii) and this subpart.
    (2) Manufacturers shall notify the purchaser of any locomotive 
engine that is certified to an FEL that is different from the emission 
standard that would otherwise apply that the locomotive or locomotive 
engine is required to comply with that FEL for the remainder of its 
service life.
    (3) Remanufacturers shall notify the owner of any locomotive or 
locomotive engine that is certified to an FEL that is different from the 
emission standard that would otherwise apply that the locomotive (or the 
locomotive in which the engine is used) is required to comply with that 
FEL for the remainder of its service life.

[63 FR 18998, Apr. 16, 1998, as amended at 73 FR 59183, Oct. 8, 2008]



Sec. 92.305  Credit generation and use calculation.

    (a) For each participating engine family, NOX and PM 
emission credits (positive or negative) are to be calculated according 
to the following equation and rounded in accordance with ASTM E29-93a, 
to the nearest Megagram (Mg). Consistent units are 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: Emission 
credits=(Std - FEL) x (UL) x (Production) x (Fp) x (10-3 kW-
Mg/MW-g).
    (2) Where:
    (i) Std=the applicable locomotive and locomotive engine 
NOX 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-haul 
credits; 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 certified to an 
FEL other than the standard during the previous useful life).
    (ii) FEL=the family emission limit for the engine family in grams 
per kilowatt-hour. For Tier 1 and Tier 2 engine families, the FEL may 
not exceed the limit established in Sec. 92.304(k) for each pollutant.
    (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 being calculated), 
as specified in the application for certification.
    (iv) Production=the number of locomotives or locomotive engines 
participating in the averaging, banking, and trading program within the 
given engine family during the calendar year (or the number of 
locomotives or locomotive engines in the subset of the engine family for 
which credits are being calculated). Quarterly production projections 
are used for initial certification. Actual applicable production/sales 
volumes are used for end-of-year compliance determination.
    (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, the 
useful life in terms of megawatt hours (UL) shall be calculated by 
dividing the useful life in miles by 100,000, and multiplying by the 
sales weighted average horsepower of the engine family. Credits are 
calculated using this UL value in the equations of paragraph (a) of this 
section.
    (c) The proration factor is an estimate of the fraction of a 
locomotive's service life that remains as a function of age.
    (1) The locomotive's age is the length of time in years from the 
date of original manufacture to the date at which the remanufacture (for 
which credits are being calculated) is completed, rounded to the next 
higher year.
    (2) The proration factors for ages 1 through 32 are specified in 
Table D305-1 of this section. For locomotives or locomotive engines more 
than 32 years old, the proration factor for 32 year old locomotives 
shall be used.
    (3) For replacement or repower engines, the proration factor is 
based on

[[Page 503]]

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 or 
remanufacturer must:
    (1) Declare its intent to include specific engine families in the 
averaging, banking, and/or trading programs. Separate declarations are 
required for each program (line-haul and switch) and for each pollutant 
(NOX and PM).
    (2) Declare duty-cycle FELs for each engine family participating in 
certification averaging, banking, and/or trading.
    (i) The FELs must be to the same number of significant digits as the 
emission standard.
    (ii) In no case may the FEL exceed the upper limit prescribed in 
Sec. 92.304(k).
    (3) Conduct and submit detailed calculations of projected emission 
credits (positive or negative) based on quarterly production projections 
for each participating family and for each pollutant, using the 
applicable equation in Sec. 92.305 and the applicable values of the 
terms in the equation for the specific family.
    (i) If the engine family is projected to have negative emission 
credits, state specifically the source (manufacturer/engine family, 
remanufacturer/engine family, or transfer) of the credits necessary to 
offset the credit deficit according to quarterly projected production.
    (ii) If the engine family is projected to generate credits, state 
specifically where the quarterly projected credits will be applied 
(manufacturer/engine family or remanufacturer/engine family, reserved or 
transfer).
    (4) Submit a statement that the locomotives or locomotive engines 
for which certification is requested will not, to the best of the 
manufacturer's or remanufacturer's belief, cause the manufacturer or 
remanufacturer to have a negative credit balance when all credits are 
calculated for all the manufacturer's or remanufacturer's engine 
families participating in the averaging, banking, and trading program.
    (b) Based on this information, each manufacturer's certification 
application must demonstrate:
    (1) That at the end of model year production, each engine family has 
a net emissions balance equal to or greater than zero for any pollutant 
and program for which participation in certification under averaging, 
banking, and/or trading is being sought. The equation in section Sec. 
92.305 shall be used in this calculation for each engine family.
    (2) That the manufacturer or remanufacturer will obtain sufficient 
credits to be used to comply with the emission standard for any engine 
family with an FEL that exceeds the applicable emission standard, or 
where credits will be applied if the FEL is less than the emission 
standard. In cases where credits are being obtained, for each engine 
family involved the manufacturer or remanufacturer must identify 
specifically the source of the credits being used (manufacturer/engine 
family, or remanufacturer/engine family, or transfer). All such reports 
shall include all credits involved in certification averaging, banking, 
or trading.
    (3) In cases where credits are being generated/supplied, each engine 
family must indicate specifically the designated use of the credits 
involved (manufacturer/remanufacturer and engine family, reserved or 
transfer). All such reports shall include all credits involved in 
certification averaging, banking, or trading.
    (c) Manufacturers and remanufacturers must monitor projected versus 
actual production throughout the model year to ensure that compliance 
with

[[Page 504]]

emission standards is achieved at the end of the model year.
    (d) At the end of the model year, the manufacturer or remanufacturer 
must provide the end-of-year reports required under Sec. 92.309.
    (1) Projected credits based on the information supplied in the 
certification application may be used to obtain a certificate of 
conformity. However, any such projected credits must be validated based 
on review of the end of model year reports and may be revoked at a later 
time based on follow-up audits or any other verification measure deemed 
appropriate by the Administrator.
    (2) Compliance for engine families using averaging, banking, or 
trading will be determined at the end of the model year. Manufacturers 
and remanufacturers that have certified engine families with credit 
balances for NOX and/or PM that do not equal or exceed zero 
shall be in violation of the conditions of the certificate of conformity 
for such engine families. The certificate of conformity may be voided ab 
initio for those engine families.
    (e) Other conditions of certification.
    (1) All certificates issued are conditional upon compliance by the 
manufacturer or remanufacturer with the provisions of this subpart both 
during and after the calendar year of production.
    (2) Failure to comply with all provisions of this subpart will be 
considered to be a failure to satisfy the conditions upon which the 
certificate was issued, and the certificate may be deemed void ab 
initio.
    (3) The manufacturer or remanufacturer (as applicable) bears the 
burden of establishing to the satisfaction of the Administrator that the 
conditions upon which the certificate was issued were satisfied or 
waived.



Sec. 92.307  Labeling.

    For all locomotives and locomotive engines included in the 
certification averaging, banking, and trading program, the FEL to which 
the locomotive or locomotive engine is certified must be included on the 
label required in Sec. 92.212. This label must include the notification 
specified in Sec. 92.304(n).



Sec. 92.308  Maintenance of records.

    (a) The manufacturer or remanufacturer of any locomotive or 
locomotive engine that is certified under the averaging, banking, and 
trading program must establish, maintain, and retain the following 
adequately organized and indexed records for each such locomotive or 
locomotive 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 that is 
certified under the averaging, banking, and trading program must 
establish, maintain, and retain the following adequately organized and 
indexed 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 calendar 
year;
    (5) Actual applicable production/sales volume for the calendar year; 
and
    (6) Useful life.
    (c) Any manufacturer or remanufacturer producing an engine family 
participating in trading or transfer of credits must maintain the 
following records on a quarterly basis for each engine family in the 
trading program:
    (1) The model year and engine family;
    (2) The actual quarterly and cumulative applicable production/sales 
volume;
    (3) The values required to calculate credits as given in Sec. 
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 records 
required to be maintained under this section for a period of 8 years 
from the due date for the end-of-calendar year report. Records may be 
retained as hard copy

[[Page 505]]

or reduced to microfilm, ADP diskettes, and so forth, depending on the 
manufacturer's or remanufacturer's record retention procedure; provided, 
that in every case all information contained in the hard copy is 
retained.
    (e) Nothing in this section limits the Administrator's discretion in 
requiring the manufacturer or remanufacturer to retain additional 
records or submit information not specifically required by this section.
    (f) Pursuant to a request made by the Administrator, the 
manufacturer or remanufacturer must submit to the Administrator the 
information that the manufacturer or remanufacturer is required to 
retain.
    (g) EPA may void ab initio a certificate of conformity for an engine 
family for which the manufacturer or remanufacturer fails to retain the 
records required in this section or to provide such information to the 
Administrator upon request.

    Effective Date Note: At 63 FR 19056, Apr. 16, 1998, Sec. 92.308 was 
added. This section contains information collection and recordkeeping 
requirements and will not become effective until approval has been given 
by the Office of Management and Budget.



Sec. 92.309  Reports.

    (a) Manufacturer or remanufacturers must submit the certification 
information as required under Sec. 92.306, and end-of-year reports each 
year as part of their participation in certification averaging, banking, 
and trading programs. All entities involved in credit trades or 
transfers must submit quarterly reports as specified in paragraph (b) of 
this section.
    (b) Quarterly reports. (1) Those holding or receiving transferred 
credits as allowed in Sec. 92.303(m) must submit quarterly reports of 
their holdings or receipts when credits are gained or lost.
    (2) The reports shall include the source or recipient of the credits 
the amount of credits involved plus remaining balances, details 
regarding the pollutant, duty-cycle, and model year/Tier as well as the 
information prescribed in Sec. 92.308(c). Copies of contracts related 
to credit trading or transfer must be included or supplied by the buyer, 
seller, and broker, as applicable.
    (c) End-of-year reports must include the information prescribed in 
Sec. 92.308(b). The report shall include a calculation of credit 
balances for each family to show that the summation of the 
manufacturer's or remanufacturer's use of credits results in a credit 
balance equal to or greater than zero. The report shall be consistent in 
detail with the information submitted under Sec. 92.306 and show how 
credit surpluses were dispersed and how credit shortfalls were met on a 
family specific basis. The end-of-year report shall incorporate 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 of first 
retail sale by the manufacturer or remanufacturer or the point at which 
the locomotive is placed into service, whichever occurs first. This is 
called the final product purchase location.
    (e) Each quarterly and end-of-year report submitted shall include a 
statement certifying to the accuracy and authenticity of the material 
reported therein.
    (f) Requirements for submission. (1) Quarterly reports must be 
submitted within 90 days of the end of the calendar quarter to: Group 
Manager, Engine Compliance Programs Group, Engine Programs and 
Compliance 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 the end 
of the calendar year to: Group Manager, Engine Compliance Programs 
Group, Engine Programs and Compliance Division, U.S. Environmental 
Protection Agency, 6403-J, 1200 Pennsylvania Ave., NW., Washington, DC 
20460.
    (3) Failure by a manufacturer or a remanufacturer participating in 
the averaging, banking, or trading program to submit any quarterly or 
end-of-year reports in the specified time for all engines is a violation 
of sections 203(a)(1) and 213 of the Clean Air Act for each locomotive 
or locomotive engine.
    (4) A manufacturer or remanufacturer generating credits for banking

[[Page 506]]

only who fails to 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 the credits until such reports are received and reviewed by EPA. 
Use of projected credits pending EPA review is not permitted in these 
circumstances.
    (g) Reporting errors. (1) Errors discovered by EPA or the 
manufacturer or the remanufacturer as applicable in the end-of-year 
report, including errors in credit calculation, may be corrected 180-
days subsequent to submission of the end-of-year report. Errors 
discovered by EPA after 180-days shall be correctable if, as a result of 
the correction, the manufacturer's or remanufacturer's credits are 
reduced. Errors in the manufacturer's or remanufacturer's favor are not 
corrected if discovered after the 180-day correction period allowed.
    (2) If EPA or the manufacturer or remanufacturer determines that a 
reporting error occurred on an end of year report previously submitted 
to EPA under this section, the manufacturer's or remanufacturer's 
credits and credit calculations will be recalculated. Erroneous positive 
credits will be void. Erroneous negative credit balances may be 
corrected by EPA.
    (3) If EPA review of a manufacturer's or remanufacturers end-of-year 
report indicates a credit shortfall, the manufacturer or remanufacturer 
will be permitted to purchase the necessary credits to bring the credit 
balance to zero. These credits must be supplied at the ratio of 1.1 
credits for each 1.0 credit needed. If sufficient credits are not 
available to bring the credit balance to zero for the family(ies) 
involved, EPA may void the certificate(s) for that family(ies) ab 
initio. In addition, all locomotives and locomotive engines within an 
engine family for which there are insufficient credits will be 
considered to have violated the conditions of the certificate of 
conformity and therefore not covered by that certificate.
    (4) If within 180 days of receipt of the manufacturer's or 
remanufacturer's end-of-year report, EPA review determines a reporting 
error in the manufacturer's or remanufacturer's favor (that is, 
resulting in an increased credit balance) or if the manufacturer or 
remanufacturer discovers such an error within 180 days of EPA receipt of 
the end-of-year report, the credits are restored for use by the 
manufacturer or remanufacturer.

    Effective Date Note: At 63 FR 19057, Apr. 16, 1998, Sec. 92.309 was 
added. This section contains information collection and recordkeeping 
requirements and will not become effective until approval has been given 
by the Office of Management and Budget.



Sec. 92.310  Notice of opportunity for hearing.

    Any voiding of the certificate under this subpart will be made only 
after the manufacturer or remanufacturer concerned has been offered an 
opportunity for a hearing conducted in accordance with Sec. 92.216 and, 
if a manufacturer or remanufacturer 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. 92.401  Applicability.

    The requirements of this subpart are applicable to manufacturers and 
remanufacturers of locomotives and locomotive engines subject to the 
provisions of subpart A of this part. The requirement to report 
emission-related defects affecting a given class or category of 
locomotives or locomotive engines applies for eight years from the end 
of the year in which such locomotives or locomotive engines were 
manufactured, 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 defect information 
report whenever it determines, in accordance with procedures it 
established to

[[Page 507]]

identify either safety-related or performance defects, (or based on 
other information) that a specific emission-related defect exists in ten 
or more locomotives or locomotive engines. No report must be filed under 
this paragraph for any emission-related defect corrected prior to the 
sale, or reintroduction into service of a remanufactured locomotive or 
locomotive engine, of the affected locomotives or locomotive engines to 
an ultimate purchaser.
    (b) Defect information reports required under paragraph (a) of this 
section must be submitted not more than 15 working days after the same 
emission-related defect is found to affect 10 or more locomotives or 
locomotive engines. Information required by paragraph (c) of this 
section that is either not available within 15 working days or is 
significantly revised must be submitted as it becomes available.
    (c) Except as provided in paragraph (b) of this section, each defect 
report must contain the following information in substantially the 
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 or 
locomotive engines potentially affected by the defect including make, 
model, calendar year produced, purchaser (or owner) and any other 
information as may be required to identify the locomotives or locomotive 
engines affected.
    (4) For each class or category of locomotives and locomotive engines 
described in response to paragraph (c)(3) of this section, the following 
shall also be provided:
    (i) The number of locomotives and/or locomotive engines known or 
estimated to have the defect and an explanation of the means by which 
this number was determined.
    (ii) The address of the plant(s) at which the potentially defective 
locomotives or locomotive engines were produced.
    (5) An evaluation of the emissions impact of the defect and a 
description of any operational or performance problems which a defective 
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 manufacturer 
or remanufacturer.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40456, July 13, 2005]



Sec. 92.404  Voluntary emissions recall reporting.

    (a) When any manufacturer or remanufacturer initiates a voluntary 
emissions recall campaign involving a locomotive or locomotive engine, 
the manufacturer or remanufacturer shall submit to EPA a report 
describing the manufacturer's or remanufacturer's voluntary emissions 
recall plan as prescribed by this section within 15 working days of the 
date owner notification was begun. The report shall contain the 
following:
    (1) A description of each class or category of locomotives or 
locomotive engines recalled including the number of locomotives or 
locomotive engines to be recalled, the calendar year if applicable, the 
make, the model, and such other information as may be required to 
identify the locomotives or locomotive engines recalled.
    (2) A description of the specific modifications, alterations, 
repairs, corrections, adjustments, or other changes to be made to 
correct the locomotives or locomotive engines affected by the emission-
related defect.
    (3) A description of the method by which the manufacturer or 
remanufacturer will notify locomotive or locomotive engine owners.
    (4) A description of the proper maintenance or use, if any, upon 
which the manufacturer or remanufacturer conditions eligibility for 
repair under the remedial plan, an explanation of the manufacturer's or 
remanufacturer's reasons for imposing any such condition, and a 
description 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 or 
locomotive-engine owners to obtain correction of the nonconformity. This 
shall include designation of the date on or after which the owner can 
have the

[[Page 508]]

nonconformity remedied, the time reasonably necessary to perform the 
labor to remedy the defect, and the designation of facilities at which 
the defect can be remedied.
    (6) If some or all the nonconforming locomotives or locomotive 
engines are to be remedied by persons other than authorized warranty 
agents of the manufacturer or remanufacturer, a description of the class 
of persons other than authorized warranty agents of the manufacturer or 
remanufacturer who will remedy the defect.
    (7) A copy of any written notification sent to locomotive or 
locomotive-engine owners.
    (8) A description of the system by which the manufacturer or 
remanufacturer will assure that an adequate supply of parts will be 
available to perform the repair under the remedial plan including the 
date by which an adequate supply of parts will be available to initiate 
the repair campaign, the percentage of the total parts requirement of 
each person who is to perform the repair under the remedial plan to be 
shipped to initiate the campaign, and the method to be used to assure 
the supply remains both adequate and responsive to owner demand.
    (9) Three copies of all necessary instructions to be sent to those 
persons who are to perform the repair under the remedial plan.
    (10) A description of the impact of the changes on fuel consumption, 
operation or performance, and safety of each class or category of 
locomotives or locomotive engines to be recalled.
    (11) A sample of any label to be applied to locomotives or 
locomotive engines which participate in the voluntary recall campaign.
    (b) Unless otherwise specified by the Administrator, the 
manufacturer or remanufacturer shall report on the progress of the 
recall campaign by submitting subsequent reports for six consecutive 
quarters, or until proven that remedial action has been adequately taken 
on all affected locomotives or locomotive engines, whichever occurs 
first, commencing with the quarter after the voluntary emissions recall 
campaign actually begins. Such reports shall be submitted no later than 
25 working days after the close of each calendar quarter. For each class 
or category of locomotive or locomotive engine subject to the voluntary 
emissions recall campaign, the quarterly report shall contain the:
    (1) Emission recall campaign number, if any, designated by the 
manufacturer or remanufacturer.
    (2) Date owner notification was begun, and date completed.
    (3) Number of locomotives or locomotive engines involved in the 
voluntary emissions recall campaign.
    (4) Number of locomotives or locomotive engines known or estimated 
to be affected by the emission-related defect and an explanation of the 
means by which this number was determined.
    (5) Number of locomotives or locomotive engines inspected pursuant 
to voluntary emission recall plan.
    (6) Number of inspected locomotives or locomotive engines found to 
be affected by the emissions-related defect.
    (7) Number of locomotives or locomotive engines actually receiving 
repair under the remedial plan.
    (8) Number of locomotives or locomotive engines determined to be 
unavailable for inspection or repair under the remedial plan due to 
exportation, scrappage, or for other reasons (specify).
    (9) Number of locomotives or locomotive engines determined to be 
ineligible for remedial action due to a failure to properly maintain or 
use such locomotives or locomotive engines.
    (10) Three copies of any service bulletins which relate to the 
defect to be corrected and which have not previously been reported.
    (11) Three copies of all communications transmitted to locomotive or 
locomotive-engine owners which relate to the defect to be corrected and 
which have not previously been submitted.
    (c) If the manufacturer or remanufacturer determines that any of the 
information requested in paragraph (b) of this section has changed or 
was incorrect, revised information and an explanatory note shall be 
submitted. Answers to paragraphs (b) (5), (6), (7), (8), and (9) of this 
section shall be cumulative totals.
    (d) The manufacturer or remanufacturer shall maintain in a form 
suitable

[[Page 509]]

for inspection, such as computer information storage devices or 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 remedial 
plan; and
    (3) Who were determined not to qualify for such remedial action when 
eligibility is conditioned on proper maintenance or use.
    (e) The records described in paragraph (d) of this section shall be 
made available to the Administrator upon request.



Sec. 92.405  Alternative report formats.

    (a) Any manufacturer or remanufacturer may submit a plan for making 
either of the reports required by Sec. Sec. 92.403 and 92.404 on 
computer diskettes, magnetic tape or other machine readable format. The 
plan shall be accompanied by sufficient technical detail to allow a 
determination that data requirements of these sections will be met and 
that the data in such format will be usable by EPA.
    (b) Upon approval by the Administrator of the reporting system, the 
manufacturer or remanufacturer may use such system until otherwise 
notified by the Administrator.



Sec. 92.406  Reports filing: record retention.

    (a) The reports required by Sec. Sec. 92.403 and 92.404 shall be 
sent to: Group Manager, Engine Compliance Programs Group, Engine 
Programs and Compliance Division, U.S. Environmental Protection Agency, 
6403-J, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
    (b) The information gathered by the manufacturer or remanufacturer 
to compile the reports required by Sec. Sec. 92.403 and 92.404 shall be 
retained for not less than 8 years from the date of the manufacture of 
the locomotives or locomotive engines and shall be made 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 information collection and recordkeeping 
requirements and will not become effective until approval has been given 
by the Office of Management and Budget.



Sec. 92.407  Responsibility under other legal provisions preserved.

    The filing of any report under the provisions of this subpart shall 
not affect a manufacturer's or a remanufacturer's responsibility to file 
reports or applications, obtain approval, or give notice under any 
provision of law.



Sec. 92.408  Disclaimer of production warranty applicability.

    (a) The act of filing an Emission Defect Information Report pursuant 
to Sec. 92.403 is inconclusive as to the existence of a defect subject 
to the warranty provided by section 207(a) of the Act.
    (b) A manufacturer or remanufacturer may include on each page of its 
Emission Defect Information Report a disclaimer stating that the filing 
of a Defect Information Report pursuant to these regulations is not 
conclusive as to the applicability of the Production Warranty provided 
by section 207(a) of the Act.



 Subpart F_Manufacturer and Remanufacturer Production Line Testing and 
                             Audit Programs



Sec. 92.501  Applicability.

    The requirements of this subpart are applicable to manufacturers and 
remanufacturers of locomotives and locomotive engines subject to the 
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 of freshly manufactured 
locomotives or locomotive engines (including those used for repowering). 
The Administrator may also apply these requirements to remanufacturers 
of any locomotives or locomotive engines for which there is reason to 
believe production problems exist that could affect emissions 
performance. EPA will notify such remanufacturers when it makes a 
determination that production problems may exist that could affect 
emissions performance, and the requirements of these sections shall 
apply as specified in the notice.

[[Page 510]]

    (b) The requirements of Sec. 92.511 only apply to remanufacturers 
of locomotives and locomotive engines.
    (c) Manufacturers may comply with the provisions of subpart D of 40 
CFR part 1033 instead of the provisions of this subpart F.

[63 FR 18998, Apr. 16, 1998, as amended at 73 FR 37195, June 30, 2008]



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) shall test 
production line locomotives or locomotive engines using the test 
procedures specified in Sec. 92.506. The Administrator may require 
manufacturers and remanufacturers to conduct production line testing on 
locomotives. If the Administrator determines that locomotive testing is 
required, he/she shall notify the manufacturer or remanufacturer, and 
shall specify in such notice the time period in which the manufacturer 
or remanufacturer shall complete such testing.
    (b) Remanufacturers of locomotives and locomotive engines shall 
conduct audits pursuant to the requirements of Sec. 92.511 to ensure 
that remanufactured locomotives and locomotive engines comply with the 
requirements of this part.
    (c) Upon request, the Administrator may also allow manufacturers 
(and remanufacturers, where applicable) to conduct alternate production 
line testing programs, provided the Administrator determines that the 
alternate production line testing program provides equivalent assurance 
that the locomotives and locomotive engines that are being produced 
conform to the provisions of this part. As part of this allowance or for 
other reasons, the Administrator may waive some or 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 manufacturer 
or remanufacturer is complying with the provisions of this part, one or 
more EPA enforcement officers may enter during operating hours and upon 
presentation of credentials any of the following places:
    (1) Any facility, including ports of entry, where any locomotive or 
locomotive engine is to be introduced into commerce or any emission-
related component is manufactured, remanufactured, assembled, or stored;
    (2) Any facility where any test or audit conducted pursuant to a 
manufacturer's or remanufacturer's production line testing or auditing 
program or any procedure or activity connected with such test or audit 
is or was performed;
    (3) Any facility where any test locomotive or locomotive engine is 
present; and
    (4) Any facility where any record required under Sec. 92.509 or 
other document relating to this subpart is located.
    (b) Upon admission to any facility referred to in paragraph (a) of 
this section, EPA enforcement officers are authorized to perform the 
following inspection-related activities:
    (1) To inspect and monitor any aspect of locomotive or locomotive 
engine manufacture, remanufacture, assembly, storage, testing and other 
procedures, and to inspect and monitor the facilities in which these 
procedures are conducted;
    (2) To inspect and monitor any aspect of locomotive or locomotive 
engine test procedures or activities, including test locomotive or 
engine selection, preparation and service accumulation, emission test 
cycles, and maintenance and verification of test equipment calibration;
    (3) To inspect and make copies of any records or documents related 
to the assembly, storage, selection, and testing of a locomotive or 
locomotive engine; and
    (4) To inspect and photograph any part or aspect of any locomotive 
or locomotive engine and any component used in the assembly thereof that 
is reasonably related to the purpose of the entry.
    (c) EPA enforcement officers are authorized to obtain reasonable 
assistance without cost from those in charge

[[Page 511]]

of a facility to help the officers perform any function listed in this 
subpart and they are authorized to request the manufacturer or 
remanufacturer to make arrangements with those in charge of a facility 
operated for the manufacturer or remanufacturer's benefit to furnish 
reasonable assistance without cost to EPA.
    (1) Reasonable assistance includes, but is not limited to, clerical, 
copying, interpretation and translation services; the making available 
on an EPA enforcement officer's request of personnel of the facility 
being inspected during their working hours to inform the EPA enforcement 
officer of how the facility operates and to answer the officer's 
questions; and the performance on request of emission tests on any 
locomotive or engine which is being, has been, or will be used for 
production line testing or auditing.
    (2) By written request, signed by the Assistant Administrator for 
Air and Radiation or the Assistant Administrator for Enforcement and 
Compliance Assurance, and served on the manufacturer or remanufacturer, 
a manufacturer or remanufacturer may be compelled to cause the personal 
appearance of any employee at such a facility before an EPA enforcement 
officer. Any such employee who has been instructed by the manufacturer 
or remanufacturer to appear will be entitled to be accompanied, 
represented, and advised by counsel.
    (d) EPA enforcement officers are authorized to seek a warrant or 
court order authorizing the EPA enforcement officers to conduct the 
activities authorized in this section, as appropriate, to execute the 
functions specified in this section. EPA enforcement officers may 
proceed ex parte to obtain a warrant or court order whether or not the 
EPA enforcement officers first attempted to seek permission from the 
manufacturer or remanufacturer or the party in charge of the 
facility(ies) in question to conduct the activities authorized in this 
section.
    (e) A manufacturer or remanufacturer is responsible for locating its 
foreign testing, manufacturing, and remanufacturing facilities in 
jurisdictions where local law does not prohibit an EPA enforcement 
officer(s) from conducting the activities specified in this section. EPA 
will not attempt to make any inspections which it has been informed 
local foreign law prohibits.

    Effective Date Note: At 63 FR 19060, Apr. 16, 1998, Sec. 92.504 was 
added. This section contains information collection and recordkeeping 
requirements and will not become effective until approval has been given 
by the Office of Management and Budget.



Sec. 92.505  Sample selection for testing.

    (a) At the start of each model year, the manufacturer or 
remanufacturer will begin to randomly select locomotives or locomotive 
engines from each engine family for production line testing at a rate of 
one percent. Each locomotive or locomotive engine will be selected from 
the end of the production line. Testing shall be performed throughout 
the entire model year to the extent possible.
    (1) The required sample size for an engine family is the lesser of 
five tests per model year or one percent of projected annual production, 
with a minimum sample size for an engine family of one test per model 
year provided that no engine tested fails to meet applicable emission 
standards.
    (2) Manufacturers and remanufacturers may elect to test additional 
locomotives or locomotive engines. All additional locomotives or 
locomotive engines must be tested in accordance with the applicable test 
procedures of this part.
    (b) The manufacturer or remanufacturer must assemble the test 
locomotives or locomotive engines using the same mass production process 
that will be used for locomotives or locomotive engines to be introduced 
into commerce.
    (c) No quality control, testing, or assembly procedures will be used 
on any test locomotive or locomotive engine or any portion thereof, 
including parts and subassemblies, that have not been or will not be 
used during the production and assembly of all other locomotives or 
locomotive engines of that family, except with the approval of the 
Administrator.

[[Page 512]]



Sec. 92.506  Test procedures.

    (a)(1) For locomotives and locomotive engines subject to the 
provisions of this subpart, the prescribed test procedures are those 
procedures described in subpart B of this part, except as provided in 
this section.
    (2) The Administrator may, on the basis of a written application by 
a manufacturer or remanufacturer, prescribe test procedures other than 
those specified in paragraph (a)(1) of this section for any locomotive 
or locomotive engine he/she determines is not susceptible to 
satisfactory testing using procedures specified in paragraph (a)(1) of 
this section.
    (3) If test procedures other than those in subpart B were used in 
certification of the engine family being tested under this subpart 
(other than alternate test procedures necessary for testing of a 
development engine instead of a low mileage locomotive or a low hour 
engine under Sec. 92.9), the manufacturer or remanufacturer shall use 
the test procedures used in certification for production line testing.
    (b)(1) The manufacturer or remanufacturer may not adjust, repair, 
prepare, modify, or perform any emission test on, any test locomotive or 
locomotive engine unless this adjustment, repair, preparation, 
modification and/or test is documented in the manufacturer's or 
remanufacturer's locomotive or engine assembly and inspection procedures 
and is actually performed by the manufacturer or remanufacturer or 
unless this adjustment, repair, preparation, modification and/or test is 
required or permitted under this subpart or is approved in advance by 
the Administrator.
    (2) Any adjustable locomotive or locomotive engine parameter must be 
set to values or positions that are within the range recommended to the 
ultimate purchaser.
    (3) The Administrator may adjust or require to be adjusted any 
engine parameter which the Administrator has determined to be subject to 
adjustment for certification and production line testing, to any setting 
within the specified adjustable range of that parameter, as determined 
by the Administrator, prior to the performance of any test.
    (c) Service Accumulation/Green Engine factor. The manufacturer or 
remanufacturer shall accumulate service on the locomotives and 
locomotive engines to be tested up to 300 hours of operation. In lieu of 
conducting such service accumulation, the manufacturer or remanufacturer 
may establish a Green Engine factor for each regulated pollutant for 
each engine family to be used in calculating emissions test results. The 
manufacturer or remanufacturer shall obtain the approval of the 
Administrator prior to using a Green Engine factor.
    (d) The manufacturer or remanufacturer may not perform any 
maintenance on test locomotives or locomotive engines after selection 
for testing.
    (e) If a locomotive or locomotive engine is shipped to a facility 
other than the production facility for production line testing, and an 
adjustment or repair is necessary because of such shipment, the 
locomotive or locomotive engine manufacturer or remanufacturer must 
perform the necessary adjustment or repair only after the initial test 
of the locomotive or locomotive engine, except where the Administrator 
has determined that the test would be impossible to perform or would 
permanently damage the locomotive engine.
    (f) If a locomotive or locomotive engine cannot complete the service 
accumulation, if applicable, or an emission test, because of a 
malfunction, the manufacturer or remanufacturer may request that the 
Administrator authorize either the repair of that locomotive or 
locomotive engine or its deletion from the test sequence.
    (g) Retesting. (1) If a locomotive or locomotive engine manufacturer 
or remanufacturer determines that any production line emission test of a 
locomotive or locomotive engine is invalid, the locomotive or locomotive 
engine must be retested in accordance with the requirements of this 
subpart. Emission results from all tests must be reported to EPA, 
including test results the manufacturer or remanufacturer determines are 
invalid. The locomotive or locomotive engine manufacturer or

[[Page 513]]

remanufacturer must also include a detailed explanation of the reasons 
for invalidating any test in the quarterly report required in Sec. 
92.508(e). In the event a retest is performed, a request may be made to 
the Administrator, within ten days of the end of the production quarter, 
for permission to substitute the after-repair test results for the 
original test results. The Administrator will either affirm or deny the 
request by the locomotive or locomotive engine manufacturer or 
remanufacturer within ten working days 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 production 
line test, then the manufacturer or remanufacturer must test two 
additional locomotives or locomotive engines from the next fifteen 
produced in that engine family, for each locomotive or locomotive engine 
that fails.



Sec. 92.508  Calculation and reporting of test results.

    (a) Manufacturers and remanufacturers shall calculate initial test 
results using the applicable test procedure specified in Sec. 
92.506(a). These results must also include the green engine factor, if 
applicable. The manufacturer or remanufacturer shall round these 
results, in accordance with ASTM E29-93a (incorporated by reference at 
Sec. 92.5), to the number of decimal places contained in the applicable 
emission standard expressed to one additional significant figure.
    (b) Final test results shall be calculated by summing the initial 
test results derived in paragraph (a) of this section for each test 
locomotive or locomotive engine, dividing by the number of tests 
conducted on the locomotive or locomotive engine, and rounding in 
accordance with ASTM E29-93a (incorporated by reference at Sec. 92.5) 
to the same number of decimal places contained in the applicable 
standard expressed to one additional significant figure.
    (c) Manufacturers and remanufacturers shall calculate the final test 
results for each test locomotive or locomotive engine by applying the 
appropriate deterioration factors, derived in the certification process 
for the engine family, to the final test results, and rounding in 
accordance with ASTM E 29-93a (incorporated by reference at Sec. 92.5) 
to the same number of decimal places contained in the applicable 
standard expressed to one additional significant figure.
    (d) If, subsequent to an initial failure of a production line test, 
the average of the test results for the failed locomotive or locomotive 
engine and the two additional locomotives or locomotive engines tested, 
is greater than any applicable emission standard or FEL, the engine 
family is deemed to be in non-compliance with applicable emission 
standards, and the manufacturer or remanufacturer must notify EPA within 
2 working days of such noncompliance.
    (e) Within 45 calendar days of the end of each quarter, each 
manufacturer or remanufacturer must submit to the Administrator a report 
which includes the following information:
    (1) The location and description of the manufacturer's or 
remanufacturer's emission test facilities which were utilized to conduct 
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 engine 
family 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 service 
accumulated on locomotive or locomotive engine prior to testing; and
    (E) Description of green engine factor; how it is determined and how 
it is applied;
    (ii) Location(s) where service accumulation was conducted and 
description of accumulation procedure and schedule, if applicable;

[[Page 514]]

    (iii) Test number, date, test procedure used, initial test results 
before and after rounding, and final test results for all production 
line emission tests conducted, whether valid or invalid, and the reason 
for invalidation of any test results, if applicable;
    (iv) A complete description of any adjustment, modification, repair, 
preparation, maintenance, and testing which was performed on the test 
locomotive or locomotive engine, has not been reported pursuant to any 
other paragraph of this subpart, and will not be performed on other 
production locomotive or locomotive engines;
    (v) Any other information the Administrator may request relevant to 
the determination whether the new locomotives or locomotive engines 
being manufactured or remanufactured by the manufacturer or 
remanufacturer do in fact conform with the regulations with respect to 
which the certificate of conformity was issued;
    (6) For each failed locomotive or locomotive engine as defined in 
Sec. 92.510(a), a description of the remedy and test results for all 
retests as required by Sec. 92.512(g);
    (7) The date of the end of the locomotive or locomotive engine 
manufacturer's model year production for each engine family tested; and
    (8) The following signed statement and endorsement by an authorized 
representative of the manufacturer or remanufacturer:

    This report is submitted pursuant to Sections 213 and 208 of the 
Clean Air Act. This production line testing program was conducted in 
complete conformance with all applicable regulations under 40 CFR part 
92. No emission-related changes to production processes or quality 
control procedures for the engine family tested have been made during 
this production line testing program that affect locomotives or 
locomotive engines from the production line. All data and information 
reported herein is, to the best of (Company Name) knowledge, true and 
accurate. I am aware of the penalties associated with violations of the 
Clean Air Act and the regulations thereunder. (Authorized Company 
Representative.)

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40456, July 13, 2005]



Sec. 92.509  Maintenance of records; submittal of information.

    (a) The manufacturer or remanufacturer for any new locomotive or 
locomotive engine subject to any of the provisions of this subpart must 
establish, maintain, and retain the following adequately organized and 
indexed records:
    (1) General records. A description of all equipment used to test 
engines in accordance with Sec. 92.503. The equipment requirements in 
subpart B of this part apply to tests performed under this subpart.
    (2) Individual records. These records pertain to each production 
line 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 or 
the number of hours of service accumulated on the test locomotive or 
locomotive engine when the test began and ended;
    (iii) The names of all supervisory personnel involved in the conduct 
of the production line test or audit;
    (iv) A record and description of any adjustment, repair, preparation 
or modification performed on test locomotives or locomotive engines, 
giving the date, associated time, justification, name(s) of the 
authorizing personnel, and names of all supervisory personnel 
responsible for the conduct of the action;
    (v) If applicable, the date the locomotive or locomotive engine was 
shipped from the assembly plant, associated storage facility or port 
facility, and the date the locomotive or locomotive engine was received 
at the testing facility;
    (vi) A complete record of all emission tests or audits performed 
pursuant to this subpart (except tests performed directly by EPA), 
including all individual worksheets and/or other documentation relating 
to each test, or exact copies thereof, in accordance with the record 
requirements specified in subpart B of this part;
    (vii) A brief description of any significant events during testing 
not otherwise described under this paragraph (a)(2) of this section , 
commencing with

[[Page 515]]

the test locomotive or locomotive engine selection process and including 
such extraordinary events as engine damage during shipment.
    (3) The manufacturer or remanufacturer must establish, maintain and 
retain general records, pursuant to paragraph (a)(1) of this section, 
for each test cell that can be used to perform emission testing under 
this subpart.
    (b) The manufacturer or remanufacturer must retain all records 
required to be maintained under this subpart for a period of eight (8) 
years after completion of all testing. Records may be retained as hard 
copy (i.e., on paper) or reduced to microfilm, floppy disk, or some 
other method of data storage, depending upon the manufacturer's or 
remanufacturer's record retention procedure; provided, that in every 
case, all the information contained in the hard copy is retained.
    (c) The manufacturer or remanufacturer must, upon request by the 
Administrator, submit the following information with regard to 
locomotive or locomotive engine production:
    (1) Projected production for each configuration within each engine 
family for which certification has been requested and/or approved.
    (2) Number of locomotives or engines, by configuration and assembly 
plant, scheduled for production.
    (d) Nothing in this section limits the Administrator's discretion to 
require a manufacturer or remanufacturer to establish, maintain, retain 
or submit to EPA information not specified by this section.
    (e) All reports, submissions, notifications, and requests for 
approval made under this subpart must be addressed to: Group Manager, 
Engine Compliance Programs Group, Engine Programs and Compliance 
Division 6403-J, U.S. Environmental Protection Agency, 1200 Pennsylvania 
Ave, NW., Washington, DC 20460.
    (f) The manufacturer or remanufacturer must electronically submit 
the results of its production line testing or auditing using an EPA 
information format.



Sec. 92.510  Compliance with criteria for production line testing.

    (a) A failed locomotive or locomotive engine is one whose final test 
results pursuant to Sec. 92.508(c), for one or more of the applicable 
pollutants, exceed the applicable emission standard or FEL.
    (b) An engine family is deemed to be in noncompliance, for purposes 
of this subpart, if at any time throughout the model year, the average 
of an initial failed locomotive or locomotive engine and the two 
additional locomotives or locomotive engines tested, is greater than any 
applicable emission standard or FEL.



Sec. 92.511  Remanufactured locomotives: installation audit requirements.

    (a) Remanufacturers of locomotives or locomotive engines shall audit 
the remanufacture of locomotives covered by its certificate(s) of 
conformity for proper components, component settings and component 
installations on randomly chosen locomotives in an engine family. Such 
audits shall be conducted in compliance with the requirements of this 
section.
    (1) The remanufacturer must ensure that all emission related 
components are properly installed on the locomotive or locomotive 
engine.
    (2) The remanufacturer must ensure that all emission related 
components are set to the proper specification as indicated in the 
remanufacture instructions.
    (3) Remanufacturers are allowed to submit audits performed by the 
owners or operators of the locomotives, provided the audits are 
performed in accordance with the provisions of this section.
    (b)(1) The required initial sample size (i.e., the sample size if no 
failures occur) for each remanufacturer is five percent of the 
remanufacturer's annual sales per model year per installer, with a 
maximum number of ten per engine family per installer.
    (2) The locomotives audited shall be randomly selected after the 
remanufacture is complete. The Administrator may allow the locomotives 
to be selected prior to the completion of the remanufacture, where such 
preselection would not have the potential to affect the manner in which 
the

[[Page 516]]

locomotive was remanufactured (e.g., where the installer is not aware of 
the selection prior to the completion of the remanufacture).
    (c) The remanufactured locomotive or locomotive engine may 
accumulate no more than 10,000 miles prior to an audit.
    (d) A failed remanufactured locomotive or locomotive engine is one 
on which any remanufacture components are found to be improperly 
installed, improperly adjusted or incorrectly used.
    (e) If a remanufactured locomotive or locomotive engine fails an 
audit, then the remanufacturer must audit two additional locomotives or 
locomotive engines from the next ten remanufactured in that engine 
family by that installer.
    (f) An engine family is determined to have failed an audit, if at 
any time during the model year, the remanufacturer determines that the 
three locomotives audited are found to have had any improperly 
installed, improperly adjusted or incorrectly used components. The 
remanufacturer must notify EPA within 2 working days of a determination 
of an engine family audit failure.
    (g) Within 45 calendar days of the end of each quarter, each 
remanufacturer must submit to the Administrator a report which includes 
the following information:
    (1) The location and description of the remanufacturer's audit 
facilities which were utilized to conduct auditing reported pursuant to 
this section;
    (2) Total production and sample size for each engine family;
    (3) The applicable standards and/or FELs against which each engine 
family was audited;
    (4) For each audit conducted:
    (i) A description of the 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 relevant to 
the determination whether the new locomotives or locomotive engines 
being manufactured or remanufactured by the remanufacturer do in fact 
conform with the regulations in this part with respect to which the 
certificate of conformity was issued;
    (5) For each failed locomotive or locomotive engine as defined in 
paragraph (d) of this section, a description of the remedy as required 
by Sec. 92.512(g);
    (6) The following signed statement and endorsement by an authorized 
representative of the remanufacturer:

    This report is submitted pursuant to Sections 213 and 208 of the 
Clean Air Act. This production line auditing program was conducted in 
complete conformance with all applicable regulations under 40 CFR part 
92. No emission-related changes to production processes or quality 
control procedures for the engine family audited have been made during 
this production line auditing program that affect locomotives or 
locomotive engines from the production line. All data and information 
reported herein is, to the best of (Company Name) knowledge, true and 
accurate. I am aware of the penalties associated with violations of the 
Clean Air Act and the regulations thereunder. (Authorized Company 
Representative.)

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40456, July 13, 2005]



Sec. 92.512  Suspension and revocation of certificates of conformity.

    (a)(1) The certificate of conformity is suspended with respect to 
any locomotive or locomotive engine that fails a production line test 
pursuant to Sec. 92.510(a), effective from the time the testing of that 
locomotive or locomotive engine is completed.
    (2) The certificate of conformity is suspended with respect to any 
locomotive or locomotive engine that fails an audit pursuant to Sec. 
92.511(d), effective from the time that auditing of that locomotive or 
locomotive engine is completed.
    (b)(1) The Administrator may suspend the certificate of conformity 
for an engine family which is in noncompliance pursuant to Sec. 
92.510(b), thirty days after the engine family is deemed to be in 
noncompliance.
    (2) The Administrator may suspend the certificate of conformity for 
an engine family which is determined to have failed an audit pursuant to 
Sec. 92.511(f). This suspension will not

[[Page 517]]

occur before thirty days after the engine family is deemed to be in 
noncompliance.
    (c) If the results of testing or auditing pursuant to these 
regulations indicate that locomotives or engines of a particular family 
produced at one plant of a manufacturer or remanufacturer do not conform 
to the regulations with respect to which the certificate of conformity 
was issued, the Administrator may suspend the certificate of conformity 
with respect to that family for locomotives or locomotive engines 
manufactured or remanufactured by the manufacturer or remanufacturer at 
all other plants.
    (d) The Administrator may suspend a certificate of conformity for 
any locomotive or locomotive engine family in whole or in part if:
    (1) The manufacturer or remanufacturer fails to comply with any of 
the requirements of this subpart.
    (2) The manufacturer or remanufacturer submits false or incomplete 
information in any report or information provided to the Administrator 
under this subpart.
    (3) The manufacturer or remanufacturer renders inaccurate any test 
data submitted under this subpart.
    (4) An EPA enforcement officer is denied the opportunity to conduct 
activities authorized in this subpart.
    (5) An EPA enforcement officer is unable to conduct activities 
authorized in Sec. 92.504 for any reason.
    (e) The Administrator shall notify the manufacturer or 
remanufacturer in writing of any suspension or revocation of a 
certificate of conformity in whole or in part; a suspension or 
revocation is effective upon receipt of such notification or thirty days 
from the time an engine family is deemed to be in noncompliance under 
Sec. Sec. 92.508(d), 92.510(a), 92.510(b) or 92.511(f), whichever is 
earlier, except that the certificate is immediately suspended with 
respect to any failed locomotives or locomotive engines as provided for 
in paragraph (a) of this section.
    (f) The Administrator may revoke a certificate of conformity for an 
engine family when the certificate has been suspended pursuant to 
paragraph (b) or (c) of this section if the remedy is one requiring a 
design change or changes to the locomotive, engine and/or emission 
control system as described in the application for certification of the 
affected engine family.
    (g) Once a certificate has been suspended for a failed locomotive or 
locomotive engine, as provided for in paragraph (a) of this section, the 
manufacturer or remanufacturer must take the following actions before 
the certificate is reinstated for that failed locomotive or locomotive 
engine:
    (1) Remedy the nonconformity;
    (2) Demonstrate that the locomotive or locomotive engine conforms to 
applicable standards or family emission limits by retesting, or 
reauditing if applicable, the locomotive or locomotive engine in 
accordance with this part; and
    (3) Submit a written report to the Administrator, after successful 
completion of testing, or auditing if applicable, on the failed 
locomotive or locomotive engine, which contains a description of the 
remedy and test (or audit) results for each locomotive or engine in 
addition to other information that may be required by this part.
    (h) Once a certificate for a failed engine family has been suspended 
pursuant to paragraph (b) or (c) of this section, the manufacturer or 
remanufacturer must take the following actions before the Administrator 
will consider reinstating the certificate:
    (1) Submit a written report to the Administrator which identifies 
the reason for the noncompliance of the locomotives or locomotive 
engines, describes the remedy, including a description of any quality 
control and/or quality assurance measures to be taken by the 
manufacturer or remanufacturer to prevent future occurrences of the 
problem, and states the date on which the remedies will be implemented.
    (2) Demonstrate that the engine family for which the certificate of 
conformity has been suspended does in fact comply with the regulations 
of this part by testing, or auditing if applicable, locomotives or 
engines selected from normal production runs of that engine family. Such 
testing (or auditing) must comply with the provisions of this subpart. 
If the manufacturer or

[[Page 518]]

remanufacturer elects to continue testing, or auditing if applicable, 
individual locomotives or engines after suspension of a certificate, the 
certificate is reinstated for any locomotive or engine actually 
determined to be in conformance with the applicable standards or family 
emission limits through testing, or auditing if applicable, in 
accordance with the applicable test procedures, provided that the 
Administrator has not revoked the certificate pursuant to paragraph (f) 
of this section.
    (i) Once the certificate has been revoked for an engine family, if 
the manufacturer or remanufacturer desires to continue introduction into 
commerce of a modified version of that family, the following actions 
must be taken before the Administrator may issue a certificate for that 
modified family:
    (1) If the Administrator determines that the change(s) in locomotive 
or engine design may have an effect on emission performance 
deterioration, the Administrator shall notify the manufacturer or 
remanufacturer, within five working days after receipt of the report in 
paragraph (g) of this section, whether subsequent testing or auditing if 
applicable, under this subpart will be sufficient to evaluate the change 
or changes or whether additional testing or auditing will be required; 
and
    (2) After implementing the change or changes intended to remedy the 
nonconformity, the manufacturer or remanufacturer must demonstrate that 
the modified engine family does in fact conform with the regulations of 
this part by testing, or auditing if applicable, locomotives or engines 
selected from normal production runs of that engine family. When both of 
these requirements are met, the Administrator shall reissue the 
certificate or issue a new certificate, as the case may be, to include 
that family. If this subsequent testing, or auditing if applicable, 
reveals failing data the revocation remains in effect.
    (j) At any time subsequent to an initial suspension of a certificate 
of conformity for a test or audit locomotive or engine pursuant to 
paragraph (a) of this section, but not later than 30 days (or such other 
period as may be allowed by the Administrator) after notification of the 
Administrator's decision to suspend or revoke a certificate of 
conformity in whole or in part pursuant to paragraphs (b), (c), or (f) 
of this section, a manufacturer or remanufacturer may request a hearing 
as to whether the tests or audits have been properly conducted 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 remanufacturer 
concerned has been offered an opportunity for a hearing conducted in 
accordance with Sec. Sec. 92.513, 92.514, and 92.515 and
    (2) Need not apply to locomotives or engines no longer in the 
possession of the manufacturer or remanufacturer.
    (l) After the Administrator suspends or revokes a certificate of 
conformity pursuant to this section or voids a certificate of conformity 
under Sec. 92.215, and prior to the commencement of a hearing under 
Sec. 92.513, if the manufacturer or remanufacturer demonstrates to 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 or remanufacturer to avoid storing non-
test locomotives or locomotive engines while conducting subsequent 
testing or auditing of the noncomplying family, a manufacturer or 
remanufacturer may request that the Administrator conditionally 
reinstate the certificate for that family. The Administrator may 
reinstate the certificate subject to the following condition: the 
manufacturer or remanufacturer must commit to recall all locomotives or 
locomotive engines of that family produced from the time the certificate 
is conditionally reinstated if the family fails subsequent testing, or 
auditing if applicable, and must commit to remedy any nonconformity at 
no expense to the owner.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40457, July 13, 2005]



Sec. 92.513  Request for public hearing.

    (a) If the manufacturer or remanufacturer disagrees with the 
Administrator's decision to suspend or revoke a

[[Page 519]]

certificate or disputes the basis for an automatic suspension pursuant 
to Sec. 92.512(a), the manufacturer or remanufacturer may request a 
public hearing.
    (b) The manufacturer's or remanufacturer's request shall be filed 
with the Administrator not later than 30 days after the Administrator's 
notification of his or her decision to suspend or revoke, unless 
otherwise specified by the Administrator. The manufacturer or 
remanufacturer shall simultaneously serve two copies of this request 
upon the Director of the Engine Programs and Compliance Division, Office 
of Mobile Sources and file two copies with the Hearing Clerk of the 
Agency. Failure of the manufacturer or remanufacturer to request a 
hearing within the time provided constitutes a waiver of the right to a 
hearing. Subsequent to the expiration of the period for requesting a 
hearing as of right, the Administrator may, in his or her discretion and 
for good cause shown, grant the manufacturer or remanufacturer a hearing 
to contest the suspension or revocation.
    (c) A manufacturer or remanufacturer shall include in the request 
for a public hearing:
    (1) A statement as to which configuration(s) within a family is to 
be the subject of the hearing;
    (2) A concise statement of the issues to be raised by the 
manufacturer or remanufacturer at the hearing, except that in the case 
of the hearing requested under Sec. 92.512(j), the hearing is 
restricted to the following issues:
    (i) Whether tests or audits have been properly conducted 
(specifically, whether the tests were conducted in accordance with 
applicable regulations under this part and whether test equipment was 
properly calibrated and functioning);
    (ii) Whether there exists a basis for distinguishing locomotives or 
locomotive engines produced at plants other than the one from which 
locomotives or locomotive engines were selected for testing or auditing 
which would invalidate the Administrator's decision under Sec. 
92.512(c));
    (3) A statement specifying reasons why the manufacturer or 
remanufacturer believes it will prevail on the merits of each of the 
issues raised; and
    (4) A summary of the evidence which supports the manufacturer's or 
remanufacturer's position on each of the issues raised.
    (d) A copy of all requests for public hearings will be kept on file 
in the Office of the Hearing Clerk and will be made available to the 
public during Agency business hours.



Sec. 92.514  Administrative procedures for public hearing.

    (a) The Presiding Officer shall be an Administrative Law Judge 
appointed pursuant to 5 U.S.C. 3105 (see also 5 CFR part 930).
    (b) The Judicial Officer shall be an officer or employee of the 
Agency appointed as a Judicial Officer by the Administrator, pursuant to 
this section, who shall meet the qualifications and perform functions as 
follows:
    (1) Qualifications. A Judicial Officer may be a permanent or 
temporary employee of the Agency who performs other duties for the 
Agency. The Judicial Officer shall not be employed by the Office of 
Enforcement or have any connection with the preparation or presentation 
of evidence for a hearing held pursuant to this subpart. The Judicial 
Officer shall be a graduate of an accredited law school and a member in 
good standing of a recognized Bar Association of any state or the 
District of Columbia.
    (2) Functions. The Administrator may consult with the Judicial 
Officer or delegate all or part of the Administrator's authority to act 
in a given case under this section to a Judicial Officer, provided that 
this delegation does not preclude the Judicial Officer from referring 
any motion or case to the Administrator when the Judicial Officer 
determines such referral to be appropriate.
    (c) For the purposes of this section, one or more Judicial Officers 
may be designated by the Administrator. As work requires, a Judicial 
Officer may be designated to act for the purposes of a particular case.
    (d) Summary decision. (1) In the case of a hearing requested under 
Sec. 92.512(j), when it clearly appears from the data and other 
information contained in the

[[Page 520]]

request for a hearing that no genuine and substantial question of fact 
or law exists with respect to the issues specified in Sec. 
92.513(c)(2), the Administrator may enter an order denying the request 
for a hearing and reaffirming the original decision to suspend or revoke 
a certificate of conformity.
    (2) In the case of a hearing requested under Sec. 92.513 to 
challenge a suspension of a certificate of conformity for the reason(s) 
specified in Sec. 92.512(d), when it clearly appears from the data and 
other information contained in the request for the hearing that no 
genuine and substantial question of fact or law exists with respect to 
the issue of whether the refusal to comply with this subpart was caused 
by conditions and circumstances outside the control of the manufacturer 
or remanufacturer, the Administrator may enter an order denying the 
request for a hearing and suspending the certificate of conformity.
    (3) Any order issued under paragraph (d)(1) or (d)(2) of this 
section has the force and effect of a final decision of the 
Administrator, as issued pursuant to Sec. 92.516.
    (4) If the Administrator determines that a genuine and substantial 
question of fact or law does exist with respect to any of the issues 
referred to in paragraphs (d)(1) and (d)(2) of this section, the 
Administrator shall grant the request for a hearing and publish a notice 
of public hearing in the Federal Register or by such other means as the 
Administrator finds appropriate to provide notice to the public.
    (e) Filing and service. (1) An original and two copies of all 
documents or papers required or permitted to be filed pursuant to this 
section and Sec. 92.513(c) must be filed with the Hearing Clerk of the 
Agency. Filing is considered timely if mailed, as determined by the 
postmark, to the Hearing Clerk within the time allowed by this section 
and Sec. 92.513(b). If filing is to be accomplished by mailing, the 
documents must be sent to the address set 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 in 
written form. Copies of written testimony will be served upon all 
parties as soon as practicable prior to the start of the hearing. A 
certificate of service will be provided on or accompany each document or 
paper filed with the Hearing Clerk. Documents to be served upon the 
Director of the Engine Programs and Compliance Division must be sent by 
registered mail to: Director, Engine Programs and Compliance Division 
6403-J, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., 
NW., Washington, DC 20460. Service by registered mail is complete upon 
mailing.
    (f) Computation of time. (1) In computing any period of time 
prescribed or allowed by this section, except as otherwise provided, the 
day of the act or event from which the designated period of time begins 
to run is not included. Saturdays, Sundays, and federal legal holidays 
are included in computing the period allowed for the filing of any 
document or paper, except that when the period expires on a Saturday, 
Sunday, or federal legal holiday, the period is extended to include the 
next following business day.
    (2) A prescribed period of time within which a party is required or 
permitted to do an act is computed from the time of service, except that 
when service is accomplished by mail, three days will be added to the 
prescribed period.
    (g) Consolidation. The Administrator or the Presiding Officer in his 
or her discretion may consolidate two or more proceedings to be held 
under this section for the purpose of resolving one or more issues 
whenever it appears that consolidation will expedite or simplify 
consideration of these issues. Consolidation does not affect the right 
of any party to raise issues that could have been raised if 
consolidation had not occurred.
    (h) Hearing date. To the extent possible hearings under Sec. 92.513 
will be scheduled to commence within 14 days of receipt 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 to Sec. 92.513 regarding 
suspension, revocation, or voiding of a certificate of conformity.

[[Page 521]]



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 to hearings held pursuant 
to Sec. 92.515.



Sec. 92.517  Treatment of confidential information.

    Except for information required by Sec. 92.508(e)(2) and quarterly 
emission test results described in Sec. 92.508(e), information 
submitted pursuant to this subpart shall be made available to the public 
by EPA notwithstanding any claim of confidentiality made by the 
submitter. The provisions for treatment of confidential information 
described in Sec. 92.4 apply to the information required by Sec. 
92.508(e)(2) and all other information submitted pursuant to this 
subpart.



                    Subpart G_In-Use Testing Program



Sec. 92.601  Applicability.

    The requirements of this subpart are applicable to all manufacturers 
and remanufacturers of locomotives subject to the provisions of subpart 
A of this part, including all locomotives powered by any locomotive 
engines subject to the provisions of subpart A of this part.



Sec. 92.602  Definitions.

    Except as otherwise provided, the definitions in subpart A of this 
part apply to this subpart.



Sec. 92.603  General provisions.

    (a) EPA shall annually identify engine families and configurations 
within families on which the manufacturer or remanufacturer must conduct 
in-use emissions testing pursuant to the requirements of this section.
    (1) Manufacturers and remanufacturers shall test one locomotive 
engine family each year for which it has received a certificate of 
conformity from EPA. Where a manufacturer holds certificates of 
conformity for both freshly manufactured and remanufactured locomotive 
engine families, the Administrator may require the manufacturer to test 
one freshly manufactured engine family and one remanufactured engine 
family. The Administrator may require a manufacturer or remanufacturer 
to test additional engine families if he/she has reason to believe that 
locomotives in an engine family do not comply with emission standards in 
use.
    (2) For engine families of less than 10 locomotives per year, no in-
use testing will be required, unless the Administrator has reason to 
believe that those engine families are not complying with the applicable 
emission standards in use.
    (b) Locomotive manufacturers or remanufacturers shall perform 
emission testing of a sample of in-use locomotives from an engine 
family, as specified in Sec. 92.605. Manufacturers or remanufacturers 
shall submit data from this in-use testing to EPA. EPA will use these 
data, and any other data available to EPA, to determine the compliance 
status of classes of locomotives, including for purposes of subpart H of 
this part, and whether remedial action is appropriate.



Sec. 92.604  In-use test procedure.

    (a) Testing conducted under this subpart shall be conducted on 
locomotives; testing under this subpart shall not be conducted using an 
engine that is not installed in a locomotive at the time of testing.
    (b) Locomotives tested under this subpart shall be tested using the 
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 be consistent 
with the test procedures used for certification, except for cases in 
which certification testing was not conducted with locomotive, but with 
a development engine, or other engine. In such cases, the Administrator 
shall require deviations from the certification test procedures as 
appropriate, including requiring that the test be conducted on a 
locomotive. The Administrator may allow or require other alternate 
procedures, with advance approval. For all testing conducted under this 
subpart, emission rates shall be calculated in accordance with the 
provisions of subpart B of this part that apply to locomotive testing.
    (d) Any adjustable locomotive or locomotive engine parameter must be 
set to values or positions that are within

[[Page 522]]

the range specified in the certificate of conformity. If so directed by 
the Administrator, the manufacturer or remanufacturer will set these 
parameters to values specified by the Administrator.
    (e) The Administrator may waive portions or requirements of the 
applicable test procedure, if any, that are not necessary to determine 
in-use compliance.



Sec. 92.605  General testing requirements.

    (a) Number of locomotives to be tested. The manufacturer or 
remanufacturer shall test in-use locomotives, from an engine family 
selected by EPA, which have accumulated between one-half and three-
quarters of the engine family's useful life. The number of locomotives 
to be tested by a manufacturer or remanufacturer will be determined by 
the following method:
    (1) A minimum of 2 locomotives per engine family per year for each 
engine family that reaches the minimum age specified above provided that 
no locomotive tested fails to meet any applicable standard. For each 
failing locomotive, two more locomotives shall be tested until the total 
number of locomotives tested equals 10, except as provided in paragraph 
(a)(2) of this section.
    (2) If an engine family has not changed from one year to the next 
and has certified using carry over emission data and has been previously 
tested under paragraph (a)(1) of this section (and EPA has not ordered 
or begun to negotiate remedial action of that family), then only one 
locomotive per engine family per year must be tested. If such locomotive 
fails to meet applicable standards for any pollutant, testing for that 
engine family must be conducted as outlined under paragraph (a)(1) of 
this section.
    (b) At the discretion of the Administrator, a locomotive or 
locomotive engine manufacturer or remanufacturer may test more 
locomotives than the minima described above or may concede failure 
before locomotive number 10.
    (c) The Administrator will consider failure rates, average emission 
levels and the existence of any defects among other factors in 
determining whether to pursue remedial action. The Administrator may 
order a recall pursuant to subpart H of this part before testing reaches 
the tenth locomotive.
    (d) Collection of in-use locomotives. The locomotive manufacturer or 
remanufacturer shall procure in-use locomotives which have been operated 
for between one-half and three-quarters of the locomotive's useful life 
for testing under this subpart. The manufacturer or remanufacturer shall 
complete testing required by this section for any engine family before 
useful life of the locomotives in the engine family passes.



Sec. 92.606  Maintenance, procurement and testing of in-use locomotives.

    (a) A test locomotive must have a maintenance history that is 
representative of actual in-use conditions, and identical or equivalent 
to the manufacturer's or remanufacturer's recommended emission-related 
maintenance requirements.
    (1) In procuring in-use locomotives for in-use testing, a 
manufacturer or remanufacturer shall question the end users regarding 
the accumulated usage, maintenance, operating conditions, and storage of 
the test locomotives.
    (2) The selection of test locomotives is made by the manufacturer or 
remanufacturer, and is subject to EPA approval. Information used by the 
manufacturer or remanufacturer to procure locomotives for in-use testing 
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-use 
testing. Maintenance may include only that which is listed in the 
owner's instructions for locomotives with the amount of service and age 
of the acquired test locomotive. Documentation of all maintenance and 
adjustments shall be maintained and retained.
    (c) Results of one valid emission test using the test procedure 
outlined in subpart B of this part is required for each in-use 
locomotive.
    (d) If in-use testing results show that an in-use locomotive fails 
to comply with any applicable emission standards, the manufacturer or 
remanufacturer shall determine the reason for

[[Page 523]]

noncompliance. The manufacturer or remanufacturer must report all 
determinations for noncompliance in its quarterly in-use test result 
report pursuant to Sec. 92.607(a)(11).

    Effective Date Note: At 63 FR 19066, Apr. 16, 1998, Sec. 92.606 was 
added. This section contains information collection and recordkeeping 
requirements and will not become effective until approval has been given 
by the Office of Management and Budget.



Sec. 92.607  In-use test program reporting requirements.

    (a) The manufacturer or remanufacturer shall submit to the 
Administrator within three (3) months of completion of testing all 
emission 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 an authorized 
representative of the manufacturer or remanufacturer:

    This report is submitted pursuant to Sections 213 and 208 of the 
Clean Air Act. This in-use testing program was conducted in complete 
conformance with all applicable regulations under 40 CFR part 92. All 
data and information reported herein is, to the best of (Company Name) 
knowledge, true and accurate. I am aware of the penalties associated 
with violations of the Clean Air Act and the regulations thereunder. 
(Authorized Company Representative.)

    (b) The manufacturer or remanufacturer shall report to the 
Administrator within three (3) months of completion of testing the 
following information for each engine family tested:
    (1) The serial numbers of all locomotive that were excluded from the 
test sample because they did not meet the maintenance requirements of 
Sec. 92.606;
    (2) The owner of each locomotive identified in paragraph (b)(1) of 
this section (or other entity responsible for the maintenance of the 
locomotive); and
    (3) The specific reasons why the locomotives were excluded from the 
test sample.
    (c) The manufacturer or remanufacturer must submit, via floppy disk, 
the information outlined in paragraphs (a) and (b) of this section using 
a pre-approved information heading. The Administrator may exempt 
manufacturers or remanufacturers from this requirement upon written 
request with supporting justification.
    (d) All testing reports and requests for approvals made under this 
subpart shall be addressed to: Group Manager, Engine Compliance Programs 
Group, Engine Programs and Compliance Division, U.S. Environmental 
Protection Agency, 6403-J, 1200 Pennsylvania Ave., NW., Washington, DC 
20460.



                      Subpart H_Recall Regulations



Sec. 92.701  Applicability.

    The requirements of subpart H of this part are applicable to all 
manufacturers and remanufacturers of locomotives and locomotive engines 
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 or remanufacturer 
may perform (without petition) a voluntary emissions recall pursuant to 
regulations in subpart E of this part. Such manufacturer or 
remanufacturer is subject to the reporting requirements in subpart E of 
this part.
    (b) If a determination of nonconformity with the requirements of 
section 213 of the Act is made (i.e. if EPA orders a recall under the 
provisions of

[[Page 524]]

section 207(c)), the manufacturer(s) or remanufacturer(s) will not have 
the option of an alternate remedial action 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 whenever the 
Administrator has determined that a substantial number of a class or 
category of locomotives or locomotive engines produced by that 
manufacturer or remanufacturer, although properly maintained and used, 
do not conform to the regulations prescribed under the Act in effect 
during, and applicable to the model year of such locomotives or 
locomotive engines. The notification will include a description of each 
class or category of locomotives or locomotive engines encompassed by 
the determination of nonconformity, will give the factual basis for the 
determination of nonconformity (except information previously provided 
the manufacturer or remanufacturer by the Agency), and will designate a 
date, no sooner than 45 days from the date of receipt of such 
notification, by which the manufacturer or remanufacturer shall have 
submitted a plan to remedy the nonconformity.
    (b) Unless a hearing is requested pursuant to Sec. 92.709, the 
remedial plan shall be submitted to the Administrator within the time 
limit specified in the Administrator's notification, provided that the 
Administrator may grant a manufacturer or remanufacturer an extension 
upon good cause shown.
    (c) If a manufacturer or remanufacturer requests a public hearing 
pursuant to Sec. 92.709, unless as a result of such hearing the 
Administrator withdraws his determination of nonconformity, the 
manufacturer or remanufacturer shall submit the remedial plan within 30 
days of the end of such hearing.



Sec. 92.705  Remedial plan.

    (a) When any manufacturer or remanufacturer is notified by the 
Administrator that a substantial number of any class or category of 
locomotives or locomotive engines, although properly maintained and 
used, do not conform to the applicable regulations of this part 
(including emission standards or family emission limits), the 
manufacturer or remanufacturer shall submit a plan to the Administrator 
to remedy such nonconformity. The plan shall contain the following:
    (1) A description of each class or category of locomotive or 
locomotive engine to be recalled including the year(s) of manufacture or 
remanufacture, the make, the model, the calendar year and such other 
information as may be required to identify the locomotives or locomotive 
engines to be recalled.
    (2) A description of the specific modifications, alterations, 
repairs, corrections, adjustments or other changes to be made to bring 
the locomotives or locomotive engines into conformity, including a brief 
summary of the data and technical studies which support the 
manufacturer's or remanufacturer's decision as to the particular 
remedial changes to be used in correcting the nonconformity.
    (3) A description of the method by which the manufacturer or 
remanufacturer will determine the names and addresses of locomotive or 
locomotive engine owners.
    (4) A description of the proper maintenance or use, if any, upon 
which the manufacturer or remanufacturer conditions eligibility for 
repair under the remedial plan, an explanation of the manufacturer's or 
remanufacturer's reasons for imposing any such condition, and a 
description of the proof to be required of a locomotive or locomotive 
engine owner to demonstrate compliance with any such condition. 
Eligibility may not be denied solely on the basis that the locomotive or 
locomotive engine owner used parts not manufactured or remanufactured by 
the original locomotive or locomotive engine manufacturer or 
remanufacturer, or had repairs not performed by such manufacturer or 
remanufacturer. No maintenance or use condition may be imposed unless it 
is, in the judgement of the Administrator, demonstrably related to 
preventing the nonconformity.

[[Page 525]]

    (5) A description of the procedure to be followed by locomotive or 
locomotive engine owners to obtain correction of the nonconformity. This 
shall include designation of the date on or after which the owner can 
have the nonconformity remedied, the time reasonably necessary to 
perform the labor required to correct the nonconformity, and the 
designation of facilities at which the nonconformity can be remedied: 
Provided, That repair shall be completed within a reasonable time 
designated by the Administrator from the date the owner first tenders 
his locomotive or locomotive engine after the date designated by the 
manufacturer or remanufacturer as the date on or after which the owner 
can have the nonconformity remedied.
    (6) If some or all of the nonconforming locomotives or locomotive 
engines are to be remedied by persons other than authorized warranty 
agents of the manufacturer or remanufacturer, a description of the class 
of persons other than authorized warranty agents of the manufacturer or 
remanufacturer who will remedy the nonconformity, and a statement 
indicating that the participating members of the class will be properly 
equipped to perform such remedial action.
    (7) Three copies of the letters of notification to be sent to 
locomotive or locomotive engine owners.
    (8) A description of the system by which the manufacturer or 
remanufacturer will assure that an adequate supply of parts will be 
available to perform the repair under the remedial plan including the 
date by which an adequate supply of parts will be available to initiate 
the repair campaign, the percentage of the total parts requirement of 
each person who is to perform the repair under the remedial plan to be 
shipped to initiate the campaign, and the method to be used to assure 
the supply remains both adequate and responsive to owner demand.
    (9) Three copies of all necessary instructions to be sent to those 
persons who are to perform the repair under the remedial plan.
    (10) A description of the impact of the changes on fuel consumption, 
operability, and safety of each class or category of locomotives or 
locomotive engines to be recalled and a brief summary of the data, 
technical studies, or engineering evaluations which support these 
conclusions.
    (11) Any other information, reports or data which the Administrator 
may reasonably determine is necessary to evaluate the remedial plan.
    (b)(1) Notification to locomotive or locomotive engine owners shall 
be made by first class mail or by such means as approved by the 
Administrator.
    (2) The manufacturer or remanufacturer shall use all reasonable 
means necessary to locate locomotive or locomotive engine owners.
    (3) The Administrator reserves the right to require the manufacturer 
or remanufacturer to send by certified mail or other reasonable means 
subsequent notification to locomotive or locomotive engine owners.
    (c)(1) The manufacturer or remanufacturer shall require those who 
perform the repair under the remedial plan to affix a label to each 
locomotive or locomotive engine repaired or, when required, inspected 
under the remedial plan.
    (2) The label shall be placed in such location as approved by the 
Administrator consistent with Federal Railroad Administration 
regulations and shall be fabricated of a material suitable for the 
location in which it is installed and which is not readily removable 
intact.
    (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 of the 
requirements of this paragraph (c) if he/she determines that they 
constitute an unwarranted burden to the manufacturer or remanufacturer.
    (d) The Administrator may require the manufacturer or remanufacturer 
to conduct tests on components and locomotives or locomotive engines 
incorporating a change, repair, or modification reasonably designed and 
necessary to demonstrate the effectiveness of the change, repair, or 
modification.


[[Page 526]]


    Note to Sec. 92.705: An interpretive ruling regarding Sec. 92.705 
is published in Appendix II to this part.



Sec. 92.706  Approval of plan: Implementation.

    (a) If the Administrator finds that the remedial plan is designed 
and effective to correct the nonconformity, he/she will so notify the 
manufacturer or remanufacturer in writing. If the remedial plan is not 
approved, the Administrator will provide the manufacturer or 
remanufacturer notice of the disapproval and the reasons for the 
disapproval in writing.
    (b) Upon receipt of notice from the Administrator that the remedial 
plan has been approved, the manufacturer or remanufacturer shall 
commence implementation of the approved plan. Notification of locomotive 
or locomotive engine owners shall be in accordance with requirements of 
this subpart and shall proceed as follows:
    (1) When no public hearing as described in Sec. 92.709 is requested 
by the manufacturer or remanufacturer, notification of locomotive or 
locomotive engine owners shall commence within 15 working days of the 
receipt by the manufacturer or remanufacturer of the Administrator's 
approval unless otherwise specified by the Administrator.
    (2) When a public hearing as described in Sec. 92.709 is held, 
unless as a result of such hearing the Administrator withdraws the 
determination of nonconformity, the Administrator shall, within 60 days 
after the completion of such hearing, order the manufacturer or 
remanufacturer 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 owners shall 
contain the following:
    (1) The statement: ``The Administrator of the U.S. Environmental 
Protection Agency has determined that your locomotive or locomotive 
engine may be emitting pollutants in excess of the federal emission 
standards or family emission limits, as defined in 40 CFR part 92. These 
standards or family emission limits, as defined in 40 CFR part 92 were 
established to protect the public health or welfare from the dangers of 
air pollution.''
    (2) A statement that the nonconformity of any such locomotives or 
locomotive engines which have been, if required by the remedial plan, 
properly maintained and used, will be remedied at the expense of the 
manufacturer or remanufacturer.
    (3) A description of the proper maintenance or use, if any, upon 
which the manufacturer or remanufacturer conditions eligibility for 
repair under the remedial plan and a description of the proof to be 
required of a locomotive or locomotive engine owner to demonstrate 
compliance with such condition. Eligibility may not be denied solely on 
the basis that the locomotive or locomotive engine owner used parts not 
manufactured or remanufactured by the manufacturer or remanufacturer, or 
had repairs not performed by the manufacturer or remanufacturer.
    (4) A clear description of the components which will be affected by 
the remedy and a general statement of the measures to be taken to 
correct the nonconformity.
    (5) A description of the adverse effects, if any, that an 
uncorrected nonconformity would have on the performance or operability 
of the locomotive or locomotive engine.
    (6) A description of the adverse effects, if any, that such 
nonconformity would have on the performance or operability of the 
locomotive or locomotive engine.
    (7) A description of the average effects, if any, that such 
nonconformity would have on the functions of other locomotive or 
locomotive engine components.
    (8) A description of the procedure which the locomotive or 
locomotive engine owner should follow to obtain correction of the 
nonconformity. This shall include designation of the date on or after 
which the owner can have the nonconformity remedied, the time reasonably 
necessary to perform the labor required to correct the nonconformity, 
and the designation of facilities at which the nonconformity can be 
remedied.
    (9) A telephone number provided by the manufacturer or 
remanufacturer,

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which may be used to report difficulty in obtaining recall repairs.
    (10) The statement: ``In order to ensure your full protection under 
the emission warranty made applicable to your (locomotive or locomotive 
engine) by federal law, and your right to participate 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 proper maintenance of your (locomotive or 
locomotive engine).''
    (b) No notice sent pursuant to paragraph (a) of this section nor any 
other contemporaneous communication sent to locomotive or locomotive 
engine owners or dealers shall contain any statement or implication that 
the nonconformity does not exist or that the nonconformity will not 
degrade air quality.
    (c) The manufacturer or remanufacturer shall be informed of any 
other requirements pertaining to the notification under this section 
which the Administrator has determined are reasonable and necessary to 
ensure the effectiveness of the recall campaign.



Sec. 92.708  Records and reports.

    (a) The manufacturer or remanufacturer shall provide to the 
Administrator a copy of all communications which relate to the remedial 
plan directed to persons who are to perform the repair under the 
remedial plan. Such copies shall be mailed to the Administrator 
contemporaneously with their transmission to persons who are to perform 
the repair under the remedial plan.
    (b) The manufacturer or remanufacturer shall provide for the 
establishment and maintenance of records to enable the Administrator to 
conduct a continuing analysis of the adequacy of the recall campaign. 
The records shall include, for each class or category of locomotive or 
locomotive engine, but need not be limited to, the following:
    (1) Recall campaign number as designated by the manufacturer or 
remanufacturer.
    (2) Date owner notification was begun, and date completed.
    (3) Number of locomotives or locomotive engines involved in the 
recall campaign.
    (4) Number of locomotives or locomotive engines known or estimated 
to be affected by the nonconformity.
    (5) Number of locomotives or locomotive engines inspected pursuant 
to the remedial plan.
    (6) Number of inspected locomotives or locomotive engines found to 
be affected by the nonconformity.
    (7) Number of locomotives or locomotive engines actually receiving 
repair under the remedial plan.
    (8) Number of locomotives or locomotive engines determined to be 
unavailable for inspection or repair under the remedial plan due to 
exportation, scrapping or for other reasons (specify).
    (9) Number of locomotives or locomotive engines determined to be 
ineligible for remedial action due to a failure to properly maintain or 
use such locomotives or locomotive engines.
    (c) If the manufacturer or remanufacturer determines that the 
original answers for paragraphs (b)(3) and (b)(4) of this section are 
incorrect, revised figures and an explanatory note shall be submitted. 
Answers to paragraphs (b)(5), (b)(6), (b)(7), (b)(8), and (b)(9) of this 
section shall be cumulative totals.
    (d) Unless otherwise directed by the Administrator, the information 
specified in paragraph (b) of this section shall be included in 
quarterly reports, with respect to each recall campaign, for six 
consecutive quarters beginning with the quarter in which the 
notification of owners was initiated, or until all nonconforming 
locomotives or locomotive engines involved in the campaign have been 
remedied, whichever occurs sooner. Such reports shall be submitted no 
later than 25 working days after the close of each calendar quarter.
    (e) The manufacturer or remanufacturer shall maintain in a form 
suitable for inspection, such as computer information storage devices or 
card files, lists of the names and addresses of locomotive or locomotive 
engine owners:
    (1) To whom notification was given;
    (2) Who received remedial repair or inspection under the remedial 
plan; and

[[Page 528]]

    (3) When eligibility for repair is conditioned on proper maintenance 
or use, that were determined not to qualify for such remedial action.
    (f) The records described in paragraph (e) of this section shall be 
made available to the Administrator upon request.
    (g) The records and reports required by this section shall be 
retained 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 information collection and recordkeeping 
requirements and will not become effective until approval has been given 
by the Office of Management and Budget.



Sec. 92.709  Public hearings.

    (a) Definitions. The following definitions shall be applicable to 
this section:
    (1) Hearing Clerk shall mean the Hearing Clerk of the Environmental 
Protection Agency.
    (2) Intervenor shall mean a person who files a petition to be made 
an intervenor pursuant to paragraph (g) of this section and whose 
petition is approved.
    (3) Manufacturer or remanufacturer refers to a manufacturer or 
remanufacturer contesting a recall order directed at that manufacturer 
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 Judge 
appointed pursuant to 5 U.S.C. 3105 (see also 5 CFR part 930).
    (6) Environmental Appeals Board shall mean the Board within the 
Agency described in Sec. 1.25 of this chapter. The Administrator 
delegates authority to the Environmental Appeals Board to issue final 
decisions in appeals filed under this subpart. Appeals directed to the 
Administrator, rather than to the Environmental Appeals Board, will not 
be considered. This delegation of authority to the Environmental Appeals 
Board does not preclude the Environmental Appeals Board from referring 
an appeal or a motion filed under this subpart to the Administrator for 
decision when the Environmental Appeals Board, in its discretion, deems 
it appropriate to do so. When an appeal or motion is referred to the 
Administrator, all parties shall be so notified and the rules in this 
part referring to the Environmental Appeals Board shall be interpreted 
as referring to the Administrator.
    (b) Request for public hearing. (1)(i) If the manufacturer or 
remanufacturer disagrees with the Administrator's finding of 
nonconformity he may request a public hearing as described in this 
section. Requests for such a hearing shall be filed with the 
Administrator not later than 45 days after the receipt of the 
Administrator's notification of nonconformity unless otherwise specified 
by the Administrator. Two copies of such request shall simultaneously be 
served upon the Director of the Engine Programs and Compliance Division 
and two copies filed with the Hearing Clerk. Failure of the manufacturer 
or remanufacturer to request a hearing within the time provided shall 
constitute a waiver of his right to such a hearing. In such a case, the 
manufacturer or remanufacturer shall carry out the recall order as 
required by Sec. 92.705.
    (ii) Subsequent to the expiration of the period for requesting a 
hearing as of right, the Administrator may, in his discretion and for 
good cause shown, grant the manufacturer or remanufacturer a hearing to 
contest the nonconformity.
    (2) The request for a public hearing shall contain:
    (i) A statement as to which classes or categories of locomotives or 
locomotive engines are to be the subject of the hearing;
    (ii) A concise statement of the issues to be raised by the 
manufacturer or remanufacturer at the hearing for each class or category 
of locomotive or locomotive engine for which the manufacturer or 
remanufacturer has requested the hearing; and
    (iii) A statement as to reasons the manufacturer or remanufacturer 
believes it will prevail on the merits on each of the issues so raised.
    (3) A copy of all requests for public hearings shall be kept on file 
in the Office of the Hearing Clerk and shall be

[[Page 529]]

made available to the public during Agency business hours.
    (c) Filing and service. (1) An original and two copies of all 
documents or papers required or permitted to be filed pursuant to this 
section shall be filed with the Hearing Clerk. Filing shall be deemed 
timely if mailed, as determined by the postmark, to the Hearing Clerk 
within the time allowed by this section. If filing is to be accomplished 
by mailing, the documents shall be sent to the address set 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 a 
party files with the Hearing Clerk any additional issues for 
consideration at the hearing or any written testimony, documents, 
papers, exhibits, or materials, to be introduced into evidence or papers 
filed in connection with any appeal, it shall serve upon all other 
parties copies thereof. A certificate of service shall be provided on or 
accompany each document or paper filed with the Hearing Clerk. Documents 
to be served upon the Director of the Engine Programs and Compliance 
Division shall be mailed to: Director, Engine Programs and Compliance 
Division 6403-J, U.S. Environmental Protection Agency, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460. Service by mail is complete upon 
mailing.
    (d) Time. (1) In computing any period of time prescribed or allowed 
by this section, except as otherwise provided, the day of the act or 
event from which the designated period of time begins to run shall not 
be included. Saturdays, Sundays, and Federal legal holidays shall be 
included in computing any such period allowed for the filing of any 
document or paper, except that when such period expires on a Saturday, 
Sunday, or Federal legal holiday, such period shall be extended to 
include the next following business day.
    (2) A prescribed period of time within which a party is required or 
permitted to do an act shall be computed from the time of service, 
except that when service is accomplished by mail, three days shall be 
added to the prescribed period.
    (e) Consolidation. The Administrator or the Presiding Officer in his 
discretion may consolidate two or more proceedings to be held under this 
section for the purpose of resolving one or more issues whenever it 
appears that such consolidation will expedite or simplify consideration 
of such issues. Consolidation shall not affect the right of any party to 
raise issues that could have been raised if consolidation had not 
occurred.
    (f) Notice of public hearings. (1) Notice of a public hearing under 
this section shall be given by publication in the Federal Register. 
Notice will be given at least 30 days prior to the commencement of such 
hearings.
    (2) The notice of a public hearing shall include the following 
information:
    (i) The purpose of the hearing and the legal authority under which 
the hearing is to be held;
    (ii) A brief summary of the Administrator's determination of 
nonconformity;
    (iii) A brief summary of the manufacturer's or remanufacturer's 
basis for contesting the Administrator's determination of nonconformity;
    (iv) Information regarding the time and location of the hearing and 
the address to which all documents required or permitted to be filed 
should be sent;
    (v) The address of the Hearing Clerk to whom all inquiries should be 
directed and with whom documents are required to be filed;
    (vi) A statement that all petitions to be made an intervenor must be 
filed with the Hearing Clerk within 25 days from the date of the notice 
of public hearing and must conform to the requirements of paragraph (g) 
of this section.
    (3) The notice of public hearing shall be issued by the General 
Counsel.
    (g) Intervenors. (1) Any person desiring to intervene in a hearing 
to be held under section 207(c)(1) of the Act shall file a petition 
setting forth the facts and reasons why he/she thinks he/she should be 
permitted to intervene.
    (2) In passing upon a petition to intervene, the following factors, 
among other things, shall be considered by the Presiding Officer:

[[Page 530]]

    (i) The nature of the petitioner's interest including the nature and 
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 the proceeding 
on petitioner's interest;
    (iii) The extent to which the petitioner's interest will be 
represented by existing parties or may be protected by other means;
    (iv) The extent to which petitioner's participation may reasonably 
be expected to assist materially in the development of a complete 
record;
    (v) The effect of the intervention on the Agency's statutory 
mandate.
    (3) A petition to intervene must be filed within 25 days following 
the notice of public hearing under section 207(c)(1) of the Act and 
shall be served on all parties. Any opposition to such petition must be 
filed within five days of such service.
    (4) All petitions to be made an intervenor shall be reviewed by the 
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 is limited to 
particular issues, the Presiding Officer may, in granting such petition, 
limit petitioner's participation to those particular issues only.
    (5) If the Presiding Officer grants the petition with respect to any 
or all issues, he/she shall so notify, or direct the Hearing Clerk to 
notify, the petitioner and all parties. If the Presiding Officer denies 
the petition he/she shall so notify, or direct the Hearing Clerk to 
notify, the petitioner and all parties and shall briefly state the 
reasons why the petition was denied.
    (6) All petitions to be made an intervenor shall include an 
agreement by the petitioner, and any person represented by the 
petitioner, to be subject to examination and cross-examination and to 
make any supporting and relevant records available at its own expense 
upon the request of the Presiding Officer, on his/her own motion or the 
motion of any party or other intervenor. If the intervenor fails to 
comply with any such request, the Presiding Officer may in his/her 
discretion, terminate his/her status as an intervenor.
    (h) Intervention by motion. Following the expiration of the time 
prescribed in paragraph (g) of this section for the submission of 
petitions to intervene in a hearing, any person may file a motion with 
the Presiding Officer to intervene in a hearing. Such a motion must 
contain the information and commitments required by paragraphs (g)(2) 
and (g)(6) of this section, and, in addition, must show that there is 
good cause for granting the motion and must contain a statement that the 
intervenor shall be bound by agreements, arrangements, and other 
determinations which may have been made in the proceeding.
    (i) Amicus Curiae. Persons not parties to the proceedings wishing to 
file briefs may do so by leave of the Presiding Officer granted on 
motion. A motion for leave shall identify the interest of the applicant 
and shall state the reasons why the amicus brief is desirable.
    (j) Presiding Officer. The Presiding Officer shall have the duty to 
conduct a fair and impartial hearing in accordance with 5 U.S.C. 554, 
556 and 557, to take all necessary action to avoid delay in the 
disposition of the proceedings and to maintain order. He/she shall have 
all power consistent with Agency rule and with the Administrative 
Procedure Act (5 U.S.C. 551 et seq.) necessary to this 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 the 
parties and their counsel therein;
    (4) To hold conferences for simplification of the issues or any 
other proper purpose;
    (5) To consider and rule upon all procedural and other motions 
appropriate in such proceedings;
    (6) To require the submission of direct testimony in written form 
with or without affidavit whenever, in the opinion of the Presiding 
Officer, oral testimony is not necessary for full and true disclosure of 
the facts. Testimony concerning the conduct and results of

[[Page 531]]

tests and inspections may be submitted in written form;
    (7) To enforce agreements and orders requiring access as authorized 
by law;
    (8) To require the filing of briefs on any matter on which he/she is 
required to rule;
    (9) To require any party or any witness, during the course of the 
hearing, to state his/her position on any issue;
    (10) To take or cause depositions to be taken whenever the ends of 
justice would be served thereby;
    (11) To make decisions or recommend decisions to resolve the 
disputed issues of the record of the hearing;
    (12) To issue, upon good cause shown, protective orders as described 
in paragraph (n) of this section.
    (k) Conferences. (1) At the discretion of the Presiding Officer, 
conferences may be held prior to or during any hearing. The Presiding 
Officer shall direct the Hearing Clerk to notify all parties and 
intervenors of the time and location of any such conference. At the 
discretion of the Presiding Officer, persons other than parties may 
attend. At a conference the Presiding Officer may:
    (i) Obtain stipulations and admissions, receive requests and order 
depositions to be taken, identify disputed issues of fact and law, and 
require or allow the submission of written testimony from any witness or 
party;
    (ii) Set a hearing schedule for as many of the following as are 
deemed necessary by the Presiding Officer:
    (A) Oral and written statements;
    (B) Submission of written direct testimony as required or authorized 
by the Presiding Officer;
    (C) Oral direct and cross-examination of a witness where necessary 
as 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 other 
witnesses;
    (v) Consider the procedure to be followed at the hearing; and
    (vi) Consider any other matter that may expedite the hearing or aid 
in the disposition of the issue.
    (2) The results of any conference including all stipulations shall, 
if not transcribed, be summarized in writing by the Presiding Officer 
and made part of the record.
    (l) Primary discovery (exchange of witness lists and documents). (1) 
At a prehearing conference or within some reasonable time set by the 
Presiding Officer prior to the hearing, each party shall make available 
to the other parties the names of the expert and other witnesses the 
party expects to call, together with a brief summary of their expected 
testimony and a list of all documents and exhibits which the party 
expects to introduce into evidence. Thereafter, witnesses, documents, or 
exhibits may be added and summaries of expected testimony amended upon 
motion by a party.
    (2)(i) The Presiding Officer, may, upon motion by a party or other 
person, and for good cause shown, by order:
    (A) Restrict or defer disclosure by a party of the name of a witness 
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 adequate 
opportunity, once he learns the name of a witness and obtains the 
narrative summary of his expected testimony, to prepare for the 
presentation 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 the 
proceeding;
    (ii) That the information to be obtained is not obtainable 
voluntarily; and
    (iii) That such information has significant probative value. The 
Presiding Officer shall be guided by the procedures set forth in the 
Federal Rules of Civil Procedure (28 U.S.C.), where practicable, and the 
precedents thereunder, except that no discovery shall be undertaken 
except upon order of the Presiding Officer or upon agreement of the 
parties.
    (2) The Presiding Officer shall order depositions upon oral 
questions only

[[Page 532]]

upon a showing of good cause and upon a finding that:
    (i) The information sought cannot be obtained by alternative 
methods; or
    (ii) There is a substantial reason to believe that relevant and 
probative evidence may otherwise not be preserved for presentation by a 
witness at the hearing.
    (3) Any party to the proceeding desiring an order of discovery shall 
make a motion or motions therefor. Such a motion shall set forth:
    (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 Presiding 
Officer determines the motion should be granted, he shall issue an order 
for the taking of such discovery together with the conditions and terms 
thereof.
    (4) Failure to comply with an order issued pursuant to this 
paragraph (m) may lead to the inference that the information to be 
discovered would be adverse to the person or party from whom the 
information was sought.
    (n) Protective orders: in camera proceedings. (1) Upon motion by a 
party or by the person from whom discovery is sought, and upon a showing 
by the movant that the disclosure of the information to be discovered, 
or a particular part thereof, (other than emission data) would result in 
methods or processes entitled to protection as trade secrets of such 
person being divulged, the Presiding Officer may enter a protective 
order with respect to such material. Any protective order shall contain 
such terms governing the treatment of the information as may be 
appropriate under the circumstances to prevent disclosure outside the 
hearing: Provided, That the order shall state that the material shall be 
filed separately from other evidence and exhibits in the hearing. 
Disclosure shall be limited to parties to the hearing, their counsel and 
relevant technical consultants, and authorized representatives of the 
United States concerned with carrying out the Act. Except in the case of 
the government, disclosure may be limited to counsel to parties who 
shall not disclose such information to the parties themselves. Except in 
the case of the government, disclosure to a party or his counsel shall 
be conditioned on execution of a sworn statement that no disclosure of 
the information will be made to persons not entitled to receive it under 
the terms of the protective order. (No such provision is necessary where 
government employees are concerned because disclosure by them is subject 
to the terms of 18 U.S.C. 1905.)
    (2)(i) A party or person seeking a protective order may be permitted 
to make all or part of the required showing in camera. A record shall be 
made of such in camera proceedings. If the Presiding Officer enters a 
protective order following a showing in camera, the record of such 
showing shall be sealed and preserved and made available to the Agency 
or court in the event of appeal.
    (ii) Attendance at any in camera proceeding may be limited to the 
Presiding Officer, the Agency, and the person or party seeking the 
protective order.
    (3) Any party, subject to the terms and conditions of any protective 
order issued pursuant to paragraph (n)(1) of this section, desiring for 
the presentation of his/her case to make use of any in camera documents 
or testimony shall make application to the Presiding Officer by motion 
setting forth the justification therefor. The Presiding Officer, in 
granting any such motion, shall enter an order protecting the rights of 
the affected persons and parties and preventing unnecessary disclosure 
of such information, including the presentation of such information and 
oral testimony and cross-examination concerning it in executive session, 
as in his/her discretion is necessary and practicable.
    (4) In the submittal of findings, briefs, or other papers, counsel 
for all parties shall make a good faith attempt to refrain from 
disclosing the specific details of in camera documents and testimony. 
This shall not preclude references in such findings, briefs, or other 
papers to such documents or testimony including generalized statements 
based on their contents. To the extent that counsel consider it 
necessary to include specific details in their presentations, such data 
shall be

[[Page 533]]

incorporated in separate findings, briefs, or other papers marked 
``confidential'', which shall become part of the in camera record.
    (o) Motions. (1) All motions, except those made orally during the 
course of the hearing, shall be in writing and shall state with 
particularity the grounds therefor, shall set forth the relief or order 
sought, and shall be filed with the Hearing Clerk and served upon all 
parties.
    (2) Within ten days after service of any motion filed pursuant to 
this section, or within such other time as may be fixed by the 
Environmental Appeals Board or the Presiding Officer, as appropriate, 
any party may serve and file an answer to the motion. The movant shall, 
if requested by the Environmental Appeals Board or the Presiding 
Officer, as appropriate, serve and file reply papers within the time set 
by the request.
    (3) The Presiding Officer shall rule upon all motions filed or made 
prior to the filing of his decision or accelerated decision, as 
appropriate. The Environmental Appeals Board shall rule upon all motions 
filed prior to the appointment of a Presiding Officer and all motions 
filed after the filing of the decision of the Presiding Officer or 
accelerated decision. Oral argument of motions will be permitted only if 
the Presiding Officer or the Environmental Appeals Board, as 
appropriate, deems it necessary.
    (p) Evidence. (1) The official transcripts and exhibits, together 
with all papers and requests filed in the proceeding, shall constitute 
the record. Immaterial or irrelevant parts of an admissible document 
shall be segregated and excluded so far as practicable. Documents or 
parts thereof subject to a protective order under paragraph (n) of this 
section shall be segregated. Evidence may be received at the hearing 
even though inadmissible under the rules of evidence applicable to 
judicial proceedings. The weight to be given evidence shall be 
determined by its reliability and probative value.
    (2) The Presiding Officer shall allow the parties to examine and to 
cross-examine a witness to the extent that such examination and cross-
examination is necessary for a full and true disclosure of the facts.
    (3) Rulings of the Presiding Officer on the admissibility of 
evidence, the propriety of examination and cross-examination and other 
procedural matters shall appear in the record.
    (4) Parties shall automatically be presumed to have taken exception 
to an adverse ruling.
    (q) Interlocutory appeal. (1) An interlocutory appeal may be taken 
to the Environmental Appeals Board either:
    (i) With the consent of the Presiding Officer and where he certifies 
on the record or in writing that the allowance of an interlocutory 
appeal is clearly necessary to prevent exceptional delay, expense or 
prejudice to any party or substantial detriment to the public interest; 
or
    (ii) Absent the consent of the Presiding Officer, by permission of 
the Environmental Appeals Board.
    (2) Applications for interlocutory appeal of any ruling or order of 
the Presiding Officer may be filed with the Presiding Officer within 5 
days of the issuance of the ruling or order being appealed. Answers 
thereto by other parties may be filed within 5 days of the service of 
such applications.
    (3) The Presiding Officer shall rule on such applications within 5 
days of the filing of such application or answers thereto.
    (4) Applications to file such appeals absent consent of the 
Presiding Officer shall be filed with the Environmental Appeals Board 
within 5 days of the denial of any appeal by the Presiding Officer.
    (5) The Environmental Appeals Board will consider the merits of the 
appeal on the application and any answers thereto. No oral argument will 
be heard nor other briefs filed unless the Environmental Appeals Board 
directs otherwise.
    (6) Except under extraordinary circumstances as determined by the 
Presiding Officer, the taking of an interlocutory appeal will not stay 
the hearing.
    (r) Record. (1) Hearings shall be stenographically reported and 
transcribed, and the original transcript shall be part of the record and 
the sole official transcript. Copies of the record shall be

[[Page 534]]

filed with the Hearing Clerk and made available during Agency business 
hours for public inspection. Any person desiring a copy of the record of 
the hearing or any part thereof shall be entitled to the same upon 
payment of the cost thereof.
    (2) The official transcripts and exhibits, together with all papers 
and requests filed in the proceeding, shall constitute the record.
    (s) Findings, conclusions. (1) Within 20 days of the close of the 
reception of evidence, or within such longer time as may be fixed by the 
Presiding Officer, any party may submit for the consideration of the 
Presiding Officer findings of fact, conclusions of law, and a rule or 
order, together with reasons therefor and briefs in support thereof. 
Such proposals shall be in writing, shall be served upon all parties, 
and shall contain adequate references to the record and authorities 
relied on.
    (2) The record shall show the Presiding Officer's ruling on the 
findings and conclusions except when his/her order disposing of the 
proceeding otherwise informs the parties of the action taken by him/her 
thereon.
    (t) Decision of the Presiding Officer. (1) Unless extended by the 
Environmental Appeals Board, the Presiding Officer shall issue and file 
with the Hearing Clerk his decision within 30 days after the period for 
filing findings as provided for in paragraph (s) of this section has 
expired.
    (2) The Presiding Officer's decision shall become the opinion of the 
Environmental Appeals Board:
    (i) When no notice of intention to appeal as described in paragraph 
(u) of this section is filed, 30 days after the issuance thereof, unless 
in the interim the Environmental Appeals Board shall have taken action 
to review or stay the effective date of the decision; or
    (ii) When a notice of intention to appeal is filed but the appeal is 
not perfected as required by paragraph (u) of this section, 5 days after 
the period allowed for perfection of an appeal has expired unless within 
that 5 day period, the Environmental Appeals Board shall have taken 
action to review or stay the effective date of the decision.
    (3) The Presiding Officer's decision shall include a statement of 
findings and conclusions, as well as the reasons or basis therefor, upon 
all the material issues of fact or law presented on the record and an 
appropriate rule or order. Such decision shall be supported by 
substantial evidence and based upon a consideration of the whole record.
    (4) At any time prior to the issuance of his decision, the Presiding 
Officer may reopen the proceeding for the reception of further evidence. 
Except for the correction of clerical errors, the jurisdiction of the 
Presiding Officer is terminated upon the issuance of his/her decision.
    (u) Appeal from the decision of the Presiding Officer. (1) Any party 
to a proceeding may appeal the Presiding Officer's decision to the 
Environmental Appeals Board, Provided, That within 10 days after 
issuance of the Presiding Officer's decision such party files a notice 
of intention to appeal and an appeal brief within 30 days of such 
decision.
    (2) When an appeal is taken from the decision of the Presiding 
Officer, any party may file a brief with respect to such appeal. The 
brief shall be filed within 20 days of the date of the filing of the 
appellant's brief.
    (3) Any brief filed pursuant to this paragraph (u) shall contain in 
the order indicated, the following:
    (i) A subject index of the matter in the brief, with page 
references, 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 law 
relied upon in support of the position taken on each issue, with 
specific page references to the record and the legal or other material 
relied upon; and
    (iv) A form of rule or order for the Environmental Appeals Board's 
consideration if different from the rule or order contained in the 
Presiding Officer's decision.
    (4) No brief in excess of 40 pages shall be filed without leave of 
the Environmental Appeals Board.
    (5) Oral argument will be allowed in the discretion of the 
Environmental Appeals Board.

[[Page 535]]

    (v) Review of the Presiding Officer's decision in absence of appeal. 
(1) If, after the expiration of the period for taking an appeal as 
provided for by paragraph (u) of this section, no notice of intention to 
appeal the decision of the Presiding Officer has been filed, or if 
filed, not perfected, the Hearing Clerk shall so notify the 
Environmental Appeals Board.
    (2) The Environmental Appeals Board, upon receipt of notice from the 
Hearing Clerk that no notice of intention to appeal has been filed, or 
if filed, not perfected pursuant to paragraph (u) of this section, may, 
on its own motion, within the time limits specified in paragraph (t)(2) 
of this section, review the decision of the Presiding Officer. Notice of 
the intention of the Environmental Appeals Board to review the decision 
of the Presiding Officer shall be given to all parties and shall set 
forth the scope of such review and the issue which shall be considered 
and shall make provision for filing of briefs.
    (w) Decision on appeal or review. (1) Upon appeal from or review of 
the Presiding Officer's decision, the Environmental Appeals Board shall 
consider such parts of the record as are cited or as may be necessary to 
resolve the issues presented and, in addition shall to the extent 
necessary or desirable exercise all the powers which it could have 
exercised if it had presided at the hearing.
    (2) In rendering its decision, the Environmental Appeals Board shall 
adopt, modify, or set aside the findings, conclusions, and rule or order 
contained in the decision of the Presiding Officer and shall set forth 
in its decision a statement of the reasons or bases for its action.
    (3) In those cases where the Environmental Appeals Board determines 
that it should have further information or additional views of the 
parties as to the form and content of the rule or order to be issued, 
the Environmental Appeals Board, in its discretion, may withhold final 
action pending the receipt of such additional information or views, or 
may remand the case to the Presiding Officer.
    (x) Reconsideration. Within twenty (20) days after issuance of the 
Environmental Appeals Board's decision, any party may file with the 
Environmental Appeals Board a petition for reconsideration of such 
decision, setting forth the relief desired and the grounds in support 
thereof. Any petition filed under this paragraph (x) must be confined to 
new questions raised by the decision or the final order and upon which 
the petitioner had no opportunity to argue before the Presiding Officer 
or the Environmental Appeals Board. Any party desiring to oppose such a 
petition shall file and answer thereto within ten (10) days after the 
filing of the petition. The filing of a petition for reconsideration 
shall not operate to stay the effective date of the decision or order or 
to toll the running of any statutory time period affecting such decision 
or order unless specifically so ordered by the Environmental Appeals 
Board.
    (y) Accelerated decision: Dismissal. (1) The Presiding Officer, upon 
motion of any party or sua sponte, may at any time render an accelerated 
decision in favor of the Agency or the manufacturer or remanufacturer as 
to all or any part of the proceeding, without further hearing or upon 
such limited additional evidence such as affidavits as he/she may 
require, or dismiss any party with prejudice, under any of the following 
conditions:
    (i) Failure to state a claim upon which relief can be granted, or 
direct or collateral estoppel;
    (ii) There is no genuine issue of material fact and a party is 
entitled to judgment as a matter of law; or
    (iii) Such other and further reasons as are just, including 
specifically failure to obey a procedural order of the Presiding 
Officer.
    (2) If under this paragraph (y) an accelerated decision is issued as 
to all the issues and claims joined in the proceeding, the decision 
shall be treated for the purposes of these procedures as the decision of 
the Presiding Officer as provided in paragraph (p) of this section.
    (3) If under this paragraph (y), judgment is rendered on less than 
all issues or claims in the proceeding, the Presiding Officer shall 
determine what material facts exist without substantial controversy and 
what material

[[Page 536]]

facts are actually and in good faith controverted. He/she shall 
thereupon issue an order specifying the facts which appear without 
substantial controversy, and the issues and claims upon which the 
hearing will proceed.
    (z) Conclusion of hearing. (1) If, after the expiration of the 
period for taking an appeal as provided for by paragraph (u) of this 
section, no appeal has been taken from the Presiding Officer's decision, 
and, after the expiration of the period for review by the Environmental 
Appeals Board on its own motion as provided for by paragraph (v) of this 
section, the Environmental Appeals Board does not move to review such 
decision, the hearing will be deemed to have ended at the expiration of 
all periods allowed for such appeal and review.
    (2) If an appeal of the Presiding Officer's decision is taken 
pursuant to paragraph (u) of this section, or if, in the absence of such 
appeal, the Environmental Appeals Board moves to review the decision of 
the Presiding Officer pursuant to paragraph (v) of this section, the 
hearing will be deemed to have ended upon the rendering of a final 
decision by the Environmental Appeals Board.
    (aa) Judicial review. (1) The Administrator hereby designates the 
Deputy General Counsel, Environmental Protection Agency as the officer 
upon whom copy of any petition for judicial review shall be served. Such 
officer shall be responsible for filing in the court the record on which 
the order of the Environmental Appeals Board is based.
    (2) Before forwarding the record to the court, the Agency shall 
advise the petitioner of costs of preparing it and as soon as payment to 
cover fees is made shall forward the record to the court.



   Subpart I_Importation of Nonconforming Locomotives and Locomotive 
                                 Engines



Sec. 92.801  Applicability.

    (a) Except where otherwise indicated, this subpart is applicable to 
importers of locomotives or locomotive engines for which the 
Administrator has promulgated regulations under this part prescribing 
emission standards, that are offered for importation or imported into 
the United States, but which locomotives or locomotive engines, at the 
time of importation or being offered for importation, are not covered by 
certificates of conformity issued under section 213 and section 206(a) 
of the Clean Air Act (that is, which are nonconforming locomotives or 
locomotive engines as defined in Sec. 92.2), and this part. Compliance 
with regulations under this subpart does not relieve any person or 
entity from compliance with other applicable provisions of the Clean Air 
Act.
    (b) Regulations prescribing further procedures for the importation 
of locomotives and locomotive engines into the Customs territory of the 
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 for 
importation may be admitted into the United States pursuant to the 
provisions of this subpart. In order to obtain admission the importer 
must submit to the Administrator a written request for approval 
containing the following:
    (a) Identification of the importer of the locomotive or locomotive 
engine and the importer's address, telephone number, and taxpayer 
identification number;
    (b) Identification of the locomotive's or locomotive engine's owner, 
the owner's address, telephone number, and taxpayer identification 
number;
    (c) Identification of the locomotive and/or locomotive engine 
including make, model, identification number, and original production 
year;
    (d) Information indicating the provision in this subpart under which 
the locomotive or locomotive engine is to be imported;
    (e) Identification of the place(s) where the locomotive or 
locomotive engine is to be stored until EPA approval of the importer's 
application to the Administrator for final admission;

[[Page 537]]

    (f) Authorization for EPA enforcement officers to conduct 
inspections or testing otherwise permitted by the Act or regulations 
thereunder; and
    (g) Such other information as is deemed necessary by the 
Administrator.



Sec. 92.804  Exemptions.

    (a) Unless otherwise specified, any person may apply for the 
exemptions allowed by this section.
    (b) Notwithstanding other requirements of this subpart, a 
nonconforming locomotive or locomotive engine that qualifies for a 
temporary exemption under this paragraph may be conditionally admitted 
into the United States if prior written approval for the conditional 
admission is obtained from the Administrator. Conditional admission is 
to be under bond. The Administrator may request that the U.S. Customs 
Service require a specific bond amount to ensure compliance with the 
requirements of the Act and this subpart. A written request for a 
temporary exemption from the Administrator shall contain the 
identification required in Sec. 92.803 and information that 
demonstrates that the locomotives and or locomotive engines qualify for 
an exemption. Noncompliance with provisions of this section may result 
in the forfeiture of the total amount of the bond and/or exportation of 
the locomotive or locomotive engine. The following temporary exemptions 
are permitted by this paragraph (b):
    (1) Exemption for repairs or alterations. Upon written approval by 
EPA, a person may conditionally import under bond a nonconforming 
locomotive or locomotive engine solely for purpose of repair(s) or 
alteration(s). The locomotive or locomotive engine may not be operated 
in the United States other than for the sole purpose of repair or 
alteration or shipment to the point of repair or alteration and to the 
port of export. It may not be sold or leased in the United States and is 
to be exported upon completion of the repair(s) or alteration(s).
    (2) Testing exemption. A nonconforming test locomotive or locomotive 
engine may be conditionally imported by a person subject to the 
requirements of Sec. 92.905. A test locomotive or locomotive engine may 
be operated in the United States provided that the operation is an 
integral part of the test. This exemption is limited to a period not 
exceeding one year from the date of importation unless a request is made 
by the appropriate importer, and subsequently granted by EPA, concerning 
the locomotive or locomotive engine in accordance with Sec. 92.905 for 
a subsequent one-year period.
    (3) Display exemptions. (i) A nonconforming locomotive or locomotive 
engine intended solely for display may be conditionally imported under 
bond subject to the requirements of Sec. 92.906(b).
    (ii) A display locomotive or locomotive engine may be imported by 
any person for purposes related to a business or the public interest. 
Such purposes do not include collections normally inaccessible or 
unavailable to the public on a daily basis, display of a locomotive or 
locomotive engine at a dealership, private use, or other purpose that 
the Administrator determines is not appropriate for display exemptions. 
A display locomotive or locomotive engine may not be sold or leased in 
the United States and may not be operated in the United States except 
for the operation incident and necessary to the display purpose.
    (iii) A display exemption is granted for 12 months or for the 
duration of the display purpose, whichever is shorter. Extensions of up 
to 12 months each are available upon approval by the Administrator. In 
no circumstances, however, may the total period of exemption exceed 36 
months.
    (c) National security exemption. Notwithstanding any other 
requirement of this subpart, a locomotive or locomotive engine may be 
permanently imported into the United States under the national security 
exemption found at Sec. 92.908, if prior written approval for such 
permanent importation is obtained from the Administrator. A request for 
approval is to contain the identification information required in Sec. 
92.803 and information that demonstrates 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, Engine Compliance 
Programs

[[Page 538]]

Group, Engine Programs and Compliance Division U.S. Environmental 
Protection Agency, 6403-J, 1200 Pennsylvania Ave., NW., Washington, DC 
20460, Attention: Imports.
    (e) Incidental use exemption. Locomotives that are operated 
primarily outside of the United States, and that enter the United States 
temporarily from Canada or Mexico are exempt from the requirements and 
prohibitions of this part without application, provided that the 
operation within the United States is not extensive and is incidental to 
their primary operation.



Sec. 92.805  Prohibited acts; penalties.

    (a) The importation of a locomotive or locomotive engine which is 
not covered by a certificate of conformity other than in accordance with 
this subpart and the entry regulations of the U.S. Customs Service is 
prohibited. Failure to comply with this section is a violation of 
section 213(d) and section 203 of the Act.
    (b) Unless otherwise permitted by this subpart, during a period of 
conditional admission, the importer of a locomotive or locomotive engine 
may not:
    (1) Operate the locomotive or locomotive engine in the United 
States;
    (2) Sell or lease or offer the locomotive or locomotive engine for 
sale or lease.
    (c) A locomotive or locomotive engine conditionally admitted 
pursuant to Sec. 92.804 and not otherwise permanently exempted or 
excluded by the end of the period of conditional admission, or within 
such additional time as the Administrator and the U.S. Customs Service 
may allow, is deemed to be unlawfully imported into the United States in 
violation of section 213(d) and section 203 of the Act, unless the 
locomotive or locomotive engine has been delivered to the U.S. Customs 
Service for export or other disposition under applicable Customs laws 
and regulations by the end of the period of conditional admission. A 
locomotive or locomotive engine not so delivered is subject to seizure 
by the U.S. Customs Service.
    (d) An importer who violates section 213(d) and section 203 of the 
Act is subject to a civil penalty under section 205 of the Act and Sec. 
92.1106. In addition to the penalty provided in the Act and Sec. 
92.1106, where applicable, a person or entity who imports an engine 
under the exemption provisions of Sec. 92.804 and, who fails to deliver 
the locomotive or locomotive engine to the U.S. Customs Service by the 
end of the period of conditional admission is liable for liquidated 
damages in the amount of the bond required by applicable Customs laws 
and regulations.



              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 exemption of 
locomotives and locomotive engines from certain provisions of this part. 
The applicability of the exclusions is described in Sec. 92.903, and 
the applicability of the exemption allowances is described in Sec. Sec. 
92.904 through 92.909.



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 will 
make written determinations as to whether certain locomotives are 
excluded from applicability of this part. Any locomotives that are 
determined to be excluded are not subject to the regulations under this 
part. Requests to determine whether certain locomotives are excluded 
should be sent to: Group Manager, Engine Compliance Programs Group, 
Engine Programs and Compliance Division U.S. Environmental Protection 
Agency, 6403-J, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
    (b) EPA will maintain a list of models of locomotives that have been 
determined to be excluded from coverage under this part. This list will 
be available to the public and may be obtained by writing to the address 
in paragraph (a) of this section.
    (c) In addition to the locomotives excluded in paragraph (a) of this 
section, certain vehicles are not subject to the requirements and 
prohibitions of this

[[Page 539]]

part because they are excluded from the definitions of ``locomotive'' 
and/or ``new locomotive'' in Sec. 92.2.



Sec. 92.904  Exemptions.

    (a) Except as specified otherwise in this subpart, the provisions of 
Sec. Sec. 92.904 through 92.911 exempt certain new locomotives and new 
locomotive engines from the standards, other requirements, and 
prohibitions of this part, except for the requirements of this subpart 
and the requirements of Sec. 92.1104.
    (b)(1) Any person may request a testing exemption subject to the 
provisions of Sec. 92.905.
    (2) Any locomotive or locomotive engine manufacturer or 
remanufacturer may request a national security exemption subject to the 
provisions of Sec. 92.908.
    (3) Locomotive or locomotive engines manufactured or remanufactured 
for export purposes are exempt without application, subject to the 
provisions of Sec. 92.909, except as otherwise specified by Sec. 
92.909.
    (4) Manufacturer-owned and remanufacturer-owned locomotive or 
locomotive engines are exempt without application, subject to the 
provisions of Sec. 92.906(a).
    (5) Display locomotive or locomotive engines are exempt without 
application, subject to the provisions of Sec. 92.906(b).
    (6) Locomotive propulsion engines that are identical to engines that 
are covered by a certificate of conformity issued under 40 CFR 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/or other 
requirements and prohibitions of this part new locomotives or new 
locomotive engines that are being used solely for the purpose of 
conducting a test program. Any person requesting an exemption for the 
purpose of conducting a test program must demonstrate the following:
    (i) That the test program has a purpose which constitutes an 
appropriate basis for an exemption in accordance this section;
    (ii) That the proposed test program necessitates the granting of an 
exemption;
    (iii) That the proposed test program exhibits reasonableness in 
scope; and
    (iv) That the proposed test program exhibits a degree of oversight 
and control consonant with the purpose of the test program and EPA's 
monitoring requirements.
    (2) Paragraphs (b), (c), (d), and (e) of this section describe what 
constitutes a sufficient demonstration for each of the four elements 
identified in paragraphs (a)(1)(i) through (iv) of this section.
    (b) With respect to the purpose of the proposed test program, an 
appropriate purpose would be research, investigations, studies, 
demonstrations, technology development, or training, but not national 
security. A concise statement 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 a 
practicable manner without performing or causing to be performed one or 
more of the prohibited acts under Sec. 92.1103. In appropriate 
circumstances, time constraints may be a sufficient basis for necessity, 
but the cost of certification alone, in the absence of extraordinary 
circumstances, is not a basis for necessity.
    (d) With respect to reasonableness, a test program must exhibit a 
duration of reasonable length and affect a reasonable number of engines. 
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 engines 
involved.
    (e) With respect to control, the test program must incorporate 
procedures consistent with the purpose of the test and be capable of 
affording EPA monitoring capability. As a minimum, required items of 
information 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;

[[Page 540]]

    (4) The ownership arrangement with regard to the locomotives and 
engines involved in the testing;
    (5) The intended final disposition of the locomotives and engines;
    (6) The manner in which the locomotive or engine identification 
numbers 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 or 
locomotive engines may request a testing exemption to cover locomotives 
or locomotive engines intended for use in test programs planned or 
anticipated over the course of a subsequent two-year period. Unless 
otherwise required by the Director, Engine Programs and Compliance 
Division, a manufacturer or remanufacturer requesting such an exemption 
need only furnish the information required by paragraphs (a)(1) and 
(d)(2) of this section along with a description of the recordkeeping and 
control procedures that will be employed to assure that the locomotives 
or locomotive engines are used for purposes consistent with paragraph 
(a) of this section.
    (g) For locomotives being used for the purpose of developing a 
fundamentally new emission control technology related either to an 
alternative fuel or an aftertreatment device, the Administrator may 
exempt the locomotive from some or all of the applicable standards of 
this part for the full useful life of the locomotive, subject to the 
provisions of paragraphs (a) through (f) of this section.



Sec. 92.906  Manufacturer-owned, remanufacturer-owned exemption and display 

exemption.

    (a) Any manufacturer-owned or remanufacturer-owned locomotive or 
locomotive engine is exempt from Sec. 92.1103, without application, if 
the manufacturer complies with the following terms and conditions:
    (1) The manufacturer or remanufacturer must establish, maintain, and 
retain the following adequately organized and indexed information on 
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 from 
exempt status.
    (2) The manufacturer or remanufacturer must provide right of entry 
and access to these records to EPA Enforcement Officers as outlined in 
Sec. 92.208.
    (3) The manufacturer or remanufacturer must permanently affix a 
label to each locomotive or locomotive engine on exempt status, unless 
the requirement is waived or an alternate procedure is approved by the 
Director, Engine Programs and Compliance Division. This label should:
    (i) Be affixed in a readily visible portion of the locomotive or 
locomotive engine;
    (ii) Be attached in such a manner that cannot be removed without 
destruction or defacement;
    (iii) State in the English language and in block letters and 
numerals of a color that contrasts with the background of the label, the 
following information:
    (A) The label heading ``Emission Control Information'';
    (B) Full corporate name and trademark of manufacturer or 
remanufacturer;
    (C) Engine displacement, engine family identification, and model 
year of engine; or person of office to be contacted for further 
information about the engine;
    (D) The statement ``This locomotive or locomotive engine is exempt 
from the prohibitions of 40 CFR 92.1103.''
    (4) No provision of paragraph (a)(3) of this section prevents a 
manufacturer or remanufacturer from including any other information it 
desires 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 locomotive 
engine that is to be used solely for display purposes, and that will 
only be operated incident and necessary to the display purpose, and will 
not be sold unless an applicable certificate of conformity has

[[Page 541]]

been obtained for the locomotive or engine, is exempt without request 
from the standards of this part.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40457, July 13, 2005]



Sec. 92.907  Non-locomotive-specific engine exemption.

    (a) For manufacturers selling non-locomotive-specific engines to be 
used as propulsion engines in remanufactured locomotives, such 
locomotives and engines are exempt, provided:
    (1) The engines are covered by a certificate of conformity issued 
under 40 CFR part 89;
    (2) More engines are reasonably projected to be sold and used under 
the certificate for non-locomotive use than for use in locomotives;
    (3) The number of such engines exempted under this paragraph (a) 
does not exceed:
    (i) 50 per manufacturer in any calendar year, where EPA determines 
that the use of the non-locomotive-specific engines will result in a 
significantly greater degree of emission control over the lifetime of 
the locomotive than using remanufactured engines certified under this 
part 92; or
    (ii) 25 per manufacturer in any calendar year, where EPA has not 
determined that the use of the non-locomotive-specific engines will 
result in a significantly greater degree of emission control over the 
lifetime of the locomotive than using remanufactured engines certified 
under this part 92;
    (4) The Administrator has approved the exemption as specified in 
paragraph (e) of this section.
    (b) For manufacturers of freshly manufactured switch locomotives 
powered by non-locomotive-specific engines, such freshly manufactured 
switch locomotives are exempt, provided:
    (1) The engines are covered by a certificate of conformity issued 
under 40 CFR part 89;
    (2) More engines are reasonably projected to be sold and used under 
the certificate for non-locomotive use than for use in locomotives;
    (3) The number of such locomotives sold or leased by the locomotive 
manufacturer within any three-year period, and exempted under this 
paragraph (b) does not exceed 30; and
    (4) The Administrator has approved the exemption as specified in 
paragraph (e) of this section.
    (c)(1) The remanufacture of locomotive engines that have been 
exempted under this section is exempt without request provided that the 
remanufacturer remanufactures them to a previously-certified 
configuration, or to be equivalent to engines that have been previously 
certified under this part or 40 CFR part 89.
    (2) The remanufacture of non-locomotive-specific engines that were 
used in locomotives prior to January 1, 2000 is exempt from the 
requirements of this part provided: The remanufacturer remanufactures 
them to be equivalent to engines that have been previously certified 
under this part or 40 CFR part 89, or demonstrates that the 
NOX emissions from the remanufactured locomotive engine are 
at least 40 percent less than its emissions prior to certification; and 
the Administrator has approved the exemption as specified in paragraph 
(e) of this section.
    (d) Manufacturers and remanufacturers of engines and/or locomotives 
exempted under this section shall:
    (1) Report annually to EPA the number of engines exempted under 
paragraph (a) of this section;
    (2) Report annually to EPA the number of locomotives exempted under 
paragraph (b) of this section; and
    (3) Upon the Administrator's request, provide test data showing the 
emissions of the engine or locomotive when it is operated at the actual 
in-use locomotive power points.
    (e)(1) Manufacturers and remanufacturers seeking an exemption under 
this section shall notify the Administrator of such intent at least 90 
days prior to selling or placing into service the locomotives or 
locomotive engines.
    (2) The Administrator shall deny a non-locomotive-specific exemption 
in any case where he/she has evidence that approving such an exemption 
would be inappropriate because of adverse environmental or economic 
impacts.
    (3) When denying an exemption, the Administrator shall notify the 
manufacturer or remanufacturer of EPA's

[[Page 542]]

decision to deny or consider denying the exemption within 60 days of the 
manufacturer's or remanufacturer's notification in paragraph (e)(1) of 
this section.
    (4) Unless the Administrator notifies the manufacturer or 
remanufacturer of EPA's decision to deny or consider denying the 
exemption within 60 days of the manufacturer's or remanufacturer's 
notification in paragraph (e)(1) of this section, the exemption shall be 
considered approved 90 days of the manufacturer's or remanufacturer's 
notification.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40457, July 13, 2005]



Sec. 92.908  National security exemption.

    A manufacturer or remanufacturer requesting a national security 
exemption must state the purpose for which the exemption is required and 
the request must be endorsed by an agency of the federal government 
charged with responsibility for national defense.



Sec. 92.909  Export exemptions.

    (a) A new locomotive or locomotive engine intended solely for 
export, and so labeled or tagged on the outside of any container, the 
locomotive and on the engine itself, is subject to the provisions of 
Sec. 92.1103, unless the importing country has new locomotive or new 
locomotive engine emission standards which differ from EPA standards.
    (b) For the purpose of paragraph (a) of this section, a country 
having no standards whatsoever is deemed to be a country having emission 
standards which differ from EPA standards.
    (c) It is a condition of any exemption for the purpose of export 
under paragraph (a) of this section, that such exemption is void ab 
initio with respect to a new locomotive or locomotive engine intended 
solely for export, where such locomotive or locomotive engine is sold, 
or offered for sale, to an ultimate purchaser or otherwise distributed 
or introduced into commerce in the United States for purposes other than 
export.



Sec. 92.910  Granting of exemptions.

    (a) If upon completion of the review of an exemption request made 
pursuant to Sec. 92.905 or Sec. 92.908, EPA determines it is 
appropriate to grant such an exemption, a memorandum of exemption is to 
be prepared and submitted to the person requesting the exemption. The 
memorandum is to set forth the basis for the exemption, its scope, and 
such terms and conditions as are deemed necessary. Such terms and 
conditions generally include, but are not limited to, agreements by the 
applicant to conduct the exempt activity in the manner described to EPA, 
create and maintain adequate records accessible to EPA at reasonable 
times, employ labels for the exempt locomotives or engines setting forth 
the nature of the exemption, take appropriate measures to assure that 
the terms of the exemption are met, and advise EPA of the termination of 
the activity and the ultimate disposition of the locomotives or engines.
    (b) Any exemption granted pursuant to paragraph (a) of this section 
is deemed to cover any subject locomotive or engine only to the extent 
that the specified terms and conditions are complied with. A breach of 
any term or condition causes the exemption to be void ab initio with 
respect to any locomotive or engine. Consequently, the causing or the 
performing of an act prohibited under Sec. 92.1103(a)(1) or (a)(3), 
other than in strict conformity with all terms and conditions of this 
exemption, renders the person to whom the exemption is granted, and any 
other person to whom 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 information collection and recordkeeping 
requirements and will not become effective until approval has been given 
by the Office of Management and Budget.



Sec. 92.911  Submission of exemption requests.

    Requests for exemption or further information concerning exemptions 
and/or the exemption request review procedure should be addressed to: 
Group Manager, Engine Compliance Programs Group, Engine Programs and 
Compliance Division U.S. Environmental Protection Agency, 6403-J, 1200 
Pennsylvania Ave., NW., Washington, DC 20460.

[[Page 543]]



Sec. 92.912  Staged-assembly exemption.

    You may ask us to provide a temporary exemption to allow you to 
complete production of your engines at different facilities, as long as 
you maintain control of the engines until they are in their certified 
configuration. We may require you to take specific steps to ensure that 
such engines are in their certified configuration before reaching the 
ultimate purchaser. You may request an exemption under this section in 
your application for certification, or in a separate submission.

[70 FR 40457, July 13, 2005]



Subpart K_Requirements Applicable to Owners and Operators of Locomotives 
                         and Locomotive Engines



Sec. 92.1001  Applicability.

    The requirements of this subpart are applicable to railroads and all 
other owners and operators of locomotives and locomotive engines subject 
to the provisions of subpart A of this part, except as otherwise 
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 I freight 
railroads, beginning on January 1, 2005.
    (b) Testing requirements. Each railroad subject to the provisions of 
this section shall annually test a sample of locomotives in its fleet. 
For the purpose of this section, a railroad's fleet includes both the 
locomotives that it owns and the locomotives that it is leasing.
    (1)(i) Except as specified in paragraphs (b)(1) (ii) and (iii) of 
this section, the number of locomotives to be tested shall be at least 
0.15 percent of the average number of locomotives in the railroad's 
fleet during the previous calendar year (i.e., the number tested shall 
be 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 be tested 
by railroads with 500 or more locomotives shall be at least 0.10 percent 
of the average number of locomotives in the railroad's fleet during the 
previous calendar year (i.e., the number tested shall be 0.0010 
multiplied by the number of locomotives in the fleet, rounded up to the 
next whole number). After December 31, 2015, the number of locomotives 
to be tested by railroads with fewer than 500 locomotives shall be zero. 
The provisions of this paragraph (b)(1)(ii) apply only when:
    (A) No new locomotive emission standards have taken effect during 
the previous 5 years;
    (B) Locomotive emission controls have not changed fundamentally, 
during the previous 5 years, in any manner that could reasonably be 
expected to have the potential to significantly affect emissions 
durability; and
    (C) Testing during the previous 5 years has shown, to the 
satisfaction of the Administrator, that the degree of noncompliance for 
tested locomotives is low enough that the higher rate of testing 
specified in paragraph (b)(1)(i) of this section is not needed.
    (iii) The Administrator may allow a railroad to perform a smaller 
number of tests than specified in paragraphs (b)(1) (i) or (ii) of this 
section, where he/she determines that the number of tests specified in 
paragraphs (b)(1)(i) or (ii) of this section is not necessary.
    (2) Testing shall be performed according to the test procedures in 
subpart B of this part, unless otherwise approved by the Administrator.
    (c) Test locomotive selection. (1)(i) A representative sample of 
locomotives shall be randomly selected for testing.
    (ii) Unless otherwise specified by the Administrator, the selection 
shall be made by the railroad.
    (iii) The railroad shall select locomotives from each manufacturer 
and remanufacturer, and from each tier level (e.g., Tier 0, Tier 1 and 
Tier 2) in proportion to their numbers in the railroad's fleet, except 
where specified or allowed otherwise by the Administrator.
    (iv) Locomotives tested during the previous year shall be excluded 
from the sample.
    (v) Locomotives may not be excluded from the sample because of 
visible

[[Page 544]]

smoke, a history of durability problems, or other evidence of 
malmaintenance.
    (2)(i) Locomotives selected for testing according to the provisions 
of this section shall have been certified in compliance with 
requirements in subpart A of this part, and shall have been operated for 
at least 100 percent of their useful lives.
    (ii) Where the number of locomotives that have been operated for at 
least 100 percent of their useful lives is not large enough to fulfill 
the testing requirement, locomotives still within their useful lives 
shall be tested. In this case, the locomotives must have been operated 
longer than at least 80 percent of the locomotives in the railroad's 
fleet.
    (3) Where specified by the Administrator, the railroad shall test 
specified locomotives in its fleet, including locomotives that do not 
meet the criteria specified in paragraph (c)(2) of this section.
    (d) Reporting requirements. All testing done in compliance with the 
provisions of this section shall be reported to EPA within thirty 
calendar days of the end of each year. At a minimum, each report shall 
contain the following:
    (1) Full corporate name and address of the railroad providing the 
report.
    (2) For each locomotive tested, the following:
    (i) Corporate name of the manufacturer and last remanufacturer(s) 
(including both certificate holder and installer, where different) of 
the locomotive, and the corporate name of the manufacturer or last 
remanufacturer(s) of the engine if different than that of the 
manufacturer or remanufacturer(s) of the locomotive;
    (ii) Year, and if known month of original manufacture of the 
locomotive and the engine, and the manufacturer's model designation of 
the locomotive and manufacturer's model designation of the engine, and 
the locomotive identification number;
    (iii) Year, and if known month that the engine last underwent 
remanufacture, and the engine remanufacturer's designation which either 
reflects, or most closely reflects, the engine after the last 
remanufacture, and the engine family identification;
    (iv) The number of MW-hrs and miles (where available) the locomotive 
has been operated since its last remanufacture; and
    (v) The emission test results for all measured pollutants.
    (e) Any railroad that performed no emission testing during a given 
year 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 this 
section, railroads may submit equivalent emission data collected for 
other purposes. The Administrator may also allow emission data collected 
using other testing or sampling procedures to be submitted in lieu of 
some or part of the data required by this section with advance approval.
    (g) All reports submitted to EPA in compliance with the provisions 
of this subpart must be addressed to: Group Manager, Engine Compliance 
Programs 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 of 
locomotives subject to the provisions of this part shall ensure that all 
emission-related maintenance is performed on the locomotives, as 
specified in the maintenance instructions provided by the certifying 
manufacturer or remanufacturer in compliance with Sec. 92.211 (or 
maintenance that is equivalent to the maintenance specified by the 
certifying manufacturer or remanufacturer in terms of maintaining 
emissions performance).
    (b) Unless otherwise approved by the Administrator, all maintenance 
and repair of locomotives and locomotive engines subject to the 
provisions of this part performed by any owner, operator or other 
maintenance provider, including maintenance that is not covered by 
paragraph (a) of this section, shall be performed, using good 
engineering judgement, in such a manner that the

[[Page 545]]

locomotive or locomotive engine continues (after the maintenance or 
repair) to the meet the emission standards or family emission limits (as 
applicable) it was certified as meeting prior to the need for 
maintenance or repair.
    (c) The owner of the locomotive shall maintain records of all 
maintenance and repair that could reasonably affect the emission 
performance of any locomotive or locomotive engine subject to the 
provision of this part.



Sec. 92.1005  In-use locomotives.

    (a)(1) Any Class I railroad subject to the provisions of this 
subpart shall supply to the Administrator, upon request, in-use 
locomotives, selected by the Administrator. The number of locomotives 
which the Administrator requests under this paragraph (a)(1) shall not 
exceed five locomotives per railroad per calendar year. These 
locomotives or engines shall be supplied for testing at such reasonable 
time and place and for such reasonable periods as the Administrator may 
require. The Administrator shall make reasonable allowances to the 
railroad to schedule the supply of locomotives for testing in such a 
manner that it minimizes disruption of its operational schedule.
    (2) Any non-Class I railroad or other entity subject to the 
provisions of this subpart shall supply to the Administrator, upon 
request, in-use locomotives, selected by the Administrator. The number 
of locomotives which the Administrator requests under this paragraph 
(a)(2) shall not exceed two locomotives per railroad (or other entity) 
per calendar year. These locomotives or engines shall be supplied for 
testing at such reasonable time and place and for such reasonable 
periods as the Administrator may require. The Administrator shall make 
reasonable allowances to the railroad or other entity to schedule the 
supply of locomotives for testing in such a manner that it minimizes 
disruption of its operational schedule. The Administrator shall request 
locomotives under this paragraph (a)(2) only for purposes which cannot 
be accomplished using locomotives supplied under paragraph (a)(1) of 
this section.
    (b) Any railroad or other entity subject to the provisions of this 
subpart shall make reasonable efforts to supply manufacturers and 
remanufacturers of locomotives and locomotive engines with the test 
locomotives and locomotive engines needed to fulfill the in-use testing 
requirements contained in subpart G of this part.



Sec. 92.1006  Refueling requirements.

    (a) Refueling equipment used by a locomotive operator for 
locomotives fueled with a volatile fuel shall be designed in such a 
manner so as not to render inoperative or reduce the effectiveness of 
the controls on the locomotive that are intended to minimize the escape 
of fuel vapors.
    (b) Hoses used to refuel gaseous-fueled locomotives shall not be 
designed to be bled or vented to the atmosphere under normal operating 
conditions.



Sec. 92.1007  Remanufacturing requirements.

    (a) See the definition of ``remanufacture'' in Sec. 92.2 to 
determine if you are remanufacturing your locomotive or engine. (Note: 
Replacing power assemblies one at a time may qualify as remanufacturing, 
depending on the interval between replacement.)
    (b) See the definition of ``new'' in Sec. 92.2 to determine if 
remanufacturing your locomotive makes it subject to the requirements of 
this part. If the locomotive is considered to be new, it is subject to 
the certification requirements of this part, unless it is exempt under 
subpart J of this part. The standards to which your locomotive is 
subject will depend on factors such as the following:
    (1) Its date of original manufacture.
    (2) The FEL to which it was previously certified, which is listed on 
the ``Locomotive Emission Control Information'' label.
    (3) Its power rating (whether it is above or below 2300 hp).
    (4) The calendar year in which it is being remanufactured.
    (c) You may comply with the certification requirements of this part 
for your remanufactured locomotive by either obtaining your own 
certificate of conformity as specified in subpart C of

[[Page 546]]

this part or by having a certifying remanufacturer include your 
locomotive under its certificate of conformity. In either case, your 
remanufactured locomotive must be covered by a certificate before it is 
reintroduced into service.
    (d) If you do not obtain your own certificate of conformity from 
EPA, contact a certifying remanufacturer to have your locomotive 
included under its certificate of conformity. Confirm with the 
certificate holder that your locomotive's model, date of original 
manufacture, previous FEL, and power rating allow it to be covered by 
the certificate. You must do all of the following:
    (1) Comply with the certificate holder's emission-related 
installation instructions.
    (2) Provide to the certificate holder the information it identifies 
as necessary to comply with the requirements of this part.
    (e) For parts unrelated to emissions and emission-related parts not 
addressed by the certificate holder in the emission-related installation 
instructions, you may use parts from any source. For emission-related 
parts listed by the certificate holder in the emission-related 
installation instructions, you must either use the specified parts or 
parts certified under 40 CFR 1033.645 for remanufacturing. If you 
believe that the certificate holder has included as emission-related 
parts, parts that are actually unrelated to emissions, you may ask us to 
exclude such parts from the emission-related installation instructions. 
(Note: This paragraph (e) does not apply with respect to parts for 
maintenance other than remanufacturing; see Sec. 92.1004 for provisions 
related to general maintenance.)
    (f) Failure to comply with this section is a violation of Sec. 
92.1102(a)(1).

[73 FR 37195, June 30, 2008]



      Subpart L_General Enforcement Provisions and Prohibited Acts



Sec. 92.1101  Applicability.

    The requirements of this subpart are applicable to all 
manufacturers, remanufacturers, owners and operators of locomotives and 
locomotive engines subject to the provisions of subpart A of this part.



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 new 
locomotives or new locomotive engines, the sale, the offering for sale, 
the introduction into commerce, the delivery for introduction into 
commerce, or the distribution in commerce of any new locomotive or new 
locomotive engine manufactured or remanufactured after the effective 
date of applicable emission standards under this part, unless such 
locomotive or locomotive engine is covered by a certificate of 
conformity issued (and in effect) under regulations found in this part. 
(Introduction into commerce includes placement of a new locomotive or 
new locomotive engine back into service following remanufacturing.)
    (B) The manufacture or remanufacture of a locomotive or locomotive 
engine for the purpose of an act listed in paragraph (a)(1)(i)(A) of 
this section unless such locomotive or locomotive engine is covered by a 
certificate of conformity issued (and in effect) under regulations found 
in this part prior to its introduction into commerce.
    (ii) In the case of any person, except as provided in Subpart I of 
this part, the importation into the United States of any locomotive or 
locomotive engine manufactured or remanufactured after June 15, 1998, 
unless such locomotive or locomotive 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 or copying 
of records or to fail to make reports or provide information required 
under this part.
    (ii) For a person to fail or refuse to permit entry, testing, or 
inspection authorized under this part.
    (iii) For a person to fail or refuse to perform tests, or to have 
tests performed as required by this part.

[[Page 547]]

    (iv) For a person to fail to establish or maintain records as 
required under this part.
    (3)(i) For a person to remove or render inoperative a device or 
element of design installed on or in a locomotive or locomotive engine 
in compliance with regulations under this part, or to set any adjustable 
parameter to a setting outside of the range specified by the 
manufacturer or remanufacturer, as approved in the application for 
certification by the Administrator.
    (ii) For a person to manufacture, remanufacture, sell or offer to 
sell, or install, a part or component intended for use with, or as part 
of, a locomotive or locomotive engine, where a principal effect of the 
part or component is to bypass, defeat, or render inoperative a device 
or element of design installed on or in a locomotive or locomotive 
engine in compliance with regulations issued under this part, and where 
the person knows or should know that the part or component is being 
offered for sale or installed for this use or put to such use.
    (iii) For a locomotive owner or operator to fail to comply with the 
maintenance and repair requirements of Sec. 92.1004.
    (4) For a manufacturer or a remanufacturer of a new locomotive or 
locomotive engine subject to standards prescribed under this part:
    (i) To sell, offer for sale, or introduce or deliver for 
introduction into commerce, a new locomotive or new locomotive engine 
unless the manufacturer or remanufacturer has complied with the 
requirements of Sec. 92.1107.
    (ii) To sell, offer for sale, or introduce or deliver for 
introduction into commerce, a new locomotive or new locomotive engine 
unless all required labels and tags are affixed to the engine in 
accordance with Sec. 92.212.
    (iii) To fail or refuse to comply with the requirements of Sec. 
92.1108.
    (iv) Except as provided in Sec. 92.211, to provide directly or 
indirectly in any communication to the ultimate purchaser or a 
subsequent purchaser that the coverage of a warranty under the Act is 
conditioned upon use of a part, component, or system manufactured by the 
manufacturer or remanufacturer or a person acting for the manufacturer 
or remanufacturer or under its control, or conditioned upon service 
performed by such persons.
    (v) To fail or refuse to comply with the terms and conditions of the 
warranty under Sec. 92.1107.
    (5) For a manufacturer or remanufacturer of locomotives to 
distribute in commerce, sell, offer for sale, or deliver for 
introduction into commerce new locomotives (including all locomotives 
which contain a new engine) not covered by a certificate of conformity.
    (b) For the purposes of enforcement of this part, the following 
apply:
    (1) Nothing in paragraph (a)(3) of this section is to be construed 
to require the use of any manufacturer's or remanufacturer's parts in 
maintaining or repairing a locomotive or locomotive engine.
    (2) Actions for the purpose of repair or replacement of a device or 
element of design or any other item are not considered prohibited acts 
under paragraph (a)(3)(i) of this section if the action is a necessary 
and temporary procedure, the device or element is replaced upon 
completion of the procedure, and the action results in the proper 
functioning of the device or element of design.
    (3) Actions for the purpose of remanufacturing a locomotive are not 
considered prohibited acts under paragraph (a)(3)(i) of this section if 
the new remanufactured locomotive is covered by a certificate of 
conformity and complies with all applicable requirements of this part.



Sec. 92.1104  General enforcement provisions.

    (a) Information collection provisions. (1)(i) Every manufacturer or 
remanufacturer of new locomotives and/or new locomotive engines and 
other persons subject to the requirements of this part must establish 
and maintain records, perform tests, make reports and provide 
information the Administrator may reasonably require to determine 
whether the manufacturer or remanufacturer or other person has acted or 
is acting in compliance with this part or to otherwise carry out the 
provisions of this part, and must, upon request of an officer or 
employee duly designated

[[Page 548]]

by the Administrator, permit the officer or employee at reasonable times 
to have access to and copy such records. The manufacturer or 
remanufacturer shall comply in all respects with the requirements of 
subpart E of this part.
    (ii) Every manufacturer, remanufacturer, owner, or operator of 
locomotives or locomotive engines exempted from the standards or 
requirements of this part must establish and maintain records, perform 
tests, make reports and provide information the Administrator may 
reasonably require regarding the emissions of such locomotives or 
locomotive engines.
    (2) For purposes of enforcement of this part, an officer or employee 
duly designated by the Administrator, upon presenting appropriate 
credentials, is authorized:
    (i) To enter, at reasonable times, any establishment of the 
manufacturer or remanufacturer, or of any person whom the manufacturer 
or remanufacturer engaged to perform any activity required under 
paragraph (a)(1) of this section, for the purposes of inspecting or 
observing any activity conducted pursuant to paragraph (a)(1) of this 
section; and
    (ii) To inspect records, files, papers, processes, controls, and 
facilities used in performing an activity required by paragraph (a)(1) 
of this section, by the manufacturer or remanufacturer or by a person 
whom the manufacturer or remanufacturer engaged to perform the activity.
    (b) Exemption provision. The Administrator may exempt a new 
locomotive or new locomotive engine from Sec. 92.1103 upon such terms 
and conditions as the Administrator may find necessary for the purpose 
of export, research, investigations, studies, demonstrations, or 
training, or for reasons of national security, or for other purposes 
allowed by subpart J of this part.
    (c) Importation provision. (1) A new locomotive or locomotive 
engine, offered for importation or imported by a person in violation of 
Sec. 92.1103 is to be refused admission into the United States, but the 
Secretary of the Treasury and the Administrator may, by joint 
regulation, provide for deferring a final determination as to admission 
and authorizing the delivery of such a locomotive or locomotive engine 
offered for import to the owner or consignee thereof upon such terms and 
conditions (including the furnishing of a bond) as may appear to them 
appropriate to insure that the locomotive or locomotive engine will be 
brought into conformity with the standards, requirements, and 
limitations applicable to it under this part.
    (2) If a locomotive or locomotive engine is finally refused 
admission under this paragraph (c), the Secretary of the Treasury shall 
cause disposition thereof in accordance with the customs laws unless it 
is exported, under regulations prescribed by the Secretary, within 90 
days of the date of notice of the refusal or additional time as may be 
permitted pursuant to the regulations.
    (3) Disposition in accordance with the customs laws may not be made 
in such manner as may result, directly or indirectly, in the sale, to 
the ultimate consumer, of a new locomotive or locomotive engine that 
fails to comply with applicable standards of the Administrator under 
this part.
    (d) Export provision. A new locomotive or locomotive engine intended 
solely for export, and so labeled or tagged on the outside of the 
container if used and on the engine, shall be subject to the provisions 
of Sec. 92.1103, except that if the country that is to receive the 
locomotive or locomotive engine has emission standards that differ from 
the standards prescribed under subpart A of this part, then the 
locomotive or locomotive engine must comply with the standards of the 
country that is to receive the locomotive or locomotive engine.
    (e) Recordkeeping. Except where specified otherwise, records 
required 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 to 
restrain 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 in any 
district may run into any other district.

[[Page 549]]



Sec. 92.1106  Penalties.

    (a) Violations. A violation of the requirements of this subpart is a 
violation of the applicable provisions of the Act, including sections 
213(d) and 203, and is subject to the penalty provisions thereunder.
    (1) A person who violates Sec. 92.1103 (a)(1), (a)(4), or (a)(5), 
or a manufacturer, remanufacturer, dealer or railroad who violates Sec. 
92.1103(a)(3)(i) or (iii) is subject to a civil penalty of not more than 
$32,500 for each violation.
    (2) A person other than a manufacturer, remanufacturer, dealer, or 
railroad who violates Sec. 92.1103(a)(3)(i) or any person who violates 
Sec. 92.1103(a)(3)(ii) is subject to a civil penalty 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 offense with 
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 subject to a civil 
penalty of not more than $32,500 per day of violation.
    (6) The maximum penalty values listed in this section are shown for 
calendar year 2004. Maximum penalty limits for later years may be 
adjusted based on the Consumer Price Index. The specific regulatory 
provisions for changing the maximum penalties, published in 40 CFR part 
19, reference the applicable U.S. Code citation on which the prohibited 
action is based.
    (b) Civil actions. The Administrator may commence a civil action to 
assess and recover any civil penalty under paragraph (a) of this 
section.
    (1) An action under this paragraph (b) may be brought in the 
district court of the United States for the district in which the 
defendant resides or has the Administrator's principal place of 
business, and the court has jurisdiction to assess a civil penalty.
    (2) In determining the amount of a civil penalty to be assessed 
under this paragraph (b), the court is to take into account the gravity 
of the violation, the economic benefit or savings (if any) resulting 
from the violation, the size of the violator's business, the violator's 
history of compliance with Title II of the Act, action taken to remedy 
the violation, the effect of the penalty on the violator's ability to 
continue in business, and such other matters as justice may require.
    (3) In any such action, subpoenas for witnesses who are required to 
attend a district court in any district may run into any other district.
    (c) Administrative assessment of certain penalties--(1) 
Administrative penalty authority. In lieu 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 sought against each violator in a penalty 
assessment proceeding shall not exceed $270,000, unless the 
Administrator and the Attorney General jointly determine that a matter 
involving a larger penalty amount is appropriate for administrative 
penalty assessment. Any such determination by the Administrator and the 
Attorney General is not subject to judicial review. Assessment of a 
civil penalty shall be by an order made on the record after opportunity 
for a hearing held in accordance with the procedures found at part 22 of 
this chapter. The Administrator 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 any civil 
penalty assessed under this paragraph (c), the Administrator shall take 
into account the gravity of the violation, the economic benefit or 
savings (if any) resulting from the violation, the size of the 
violator's business, the violator's history of compliance with Title II 
of the Act, action taken to remedy the violation, the effect of the 
penalty on the violator's ability to continue in business, and such 
other matters as justice may require.
    (3) Effect of administrator's action. (i) Action by the 
Administrator under this paragraph (c) does not affect or limit

[[Page 550]]

the Administrator's authority to enforce any provisions of the Act; 
except that any violation with respect to which the Administrator has 
commenced and is diligently prosecuting an action under this paragraph 
(c), or for which the Administrator has issued a final order not subject 
to further judicial review and for which the violator has paid a penalty 
assessment under this paragraph shall not be the subject of a civil 
penalty action under paragraph (b) of this section.
    (ii) No action by the Administrator under this paragraph (c) shall 
affect 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 petition for 
judicial review is filed under paragraph (c)(5) of this section.
    (5) Judicial review. A person against whom a civil penalty is 
assessed in accordance with this paragraph (c) may seek review of the 
assessment in the United States District Court for the District of 
Columbia or for the district in which the violation is alleged to have 
occurred, in which such person resides, or where the person's principal 
place of business is located, within the 30-day period beginning on the 
date a civil penalty order is issued. The person shall simultaneously 
send a copy of the filing by certified mail to the Administrator and the 
Attorney General. The Administrator shall file in the court within 30 
days a certified copy, or certified index, as appropriate, of the record 
on which the order was issued. The court is not to set aside or remand 
any order issued in accordance with the requirements of this paragraph 
(c) unless substantial evidence does not exist in the record, taken as a 
whole, to support the finding of a violation or unless the 
Administrator's assessment of the penalty constitutes an abuse of 
discretion, and the court is not to impose additional civil penalties 
unless the Administrator's assessment of the penalty constitutes an 
abuse of discretion. In any proceedings, the United States may seek to 
recover civil penalties assessed under this section.
    (6) Collection. (i) If any person fails to pay an assessment of a 
civil penalty imposed by the Administrator as provided in this part 
after the order making the assessment has become final or after a court 
in an action brought under paragraph (c)(5) of this section has entered 
a final judgment in favor of the Administrator, the Administrator shall 
request that the Attorney General bring a civil action in an appropriate 
district court to recover the amount assessed (plus interest at rates 
established pursuant to section 6621(a)(2) of the Internal Revenue Code 
of 1986 (26 U.S.C. 6621(a)(2)) from the date of the final order or the 
date of final judgment, as the case may be). In such an action, the 
validity, amount, and appropriateness of the penalty is not subject to 
review.
    (ii) A person who fails to pay on a timely basis the amount of an 
assessment of a civil penalty as described in paragraph (c)(6)(i) of 
this section shall be required to pay, in addition to that amount and 
interest, the United States' enforcement expenses, including attorney's 
fees and costs for collection proceedings, and a quarterly nonpayment 
penalty for each quarter during which the failure to pay persists. The 
nonpayment penalty is an amount equal to ten percent of the aggregate 
amount of that person's penalties and nonpayment penalties which are 
unpaid as of the beginning of such quarter.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40457, July 13, 2005]



Sec. 92.1107  Warranty provisions.

    (a) The manufacturer or remanufacturer of each locomotive or 
locomotive engine must warrant to the ultimate purchaser and each 
subsequent purchaser or owner that the locomotive or locomotive engine 
is designed, built, and equipped so as to conform at the time of sale or 
time of return to service following remanufacture with applicable 
regulations under section 213 of the Act, and is free from defects in 
materials and workmanship which cause such locomotive or locomotive 
engine to fail to conform with applicable regulations for its warranty 
period (as determined under Sec. 92.10).
    (b) For the purposes of this section, the owner of any locomotive or 
locomotive engine warranted under this

[[Page 551]]

part is responsible for the proper maintenance of the locomotive and the 
locomotive engine. Proper maintenance includes replacement and/or 
service, as needed, at the owner's expense at a service establishment or 
facility of the owner's choosing, of all parts, items, or devices which 
were in general use with locomotives or locomotive engines prior to 
1999. For diesel engines, this would generally include replacement or 
cleaning of the fuel delivery and injection system.



Sec. 92.1108  In-use compliance provisions.

    (a) Effective with respect to locomotives and locomotive engines 
subject to the requirements of this part:
    (1) If the Administrator determines that a substantial number of any 
class or category of locomotives or locomotive engines, although 
properly maintained and used, do not conform to the regulations 
prescribed under section 213 of the Act when in actual use throughout 
their useful life period (as defined under Sec. 92.2), the 
Administrator shall immediately notify the manufacturer or 
remanufacturer of such nonconformity and require the manufacturer or 
remanufacturer to submit a plan for remedying the nonconformity of the 
locomotives or locomotive engines with respect to which such 
notification is given.
    (i) The manufacturer's or remanufacturer's plan shall provide that 
the nonconformity of any such locomotives or locomotive engines which 
are properly used and maintained will be remedied at the expense of the 
manufacturer or remanufacturer.
    (ii) If the manufacturer or remanufacturer disagrees with such 
determination of nonconformity and so advises the Administrator, the 
Administrator shall afford the manufacturer or remanufacturer and other 
interested persons an opportunity to present their views and evidence in 
support thereof at a public hearing. Unless, as a result of such 
hearing, the Administrator withdraws such determination of 
nonconformity, the Administrator shall, within 60 days after the 
completion of such hearing, order the manufacturer or remanufacturer to 
provide prompt notification of such nonconformity in accordance with 
paragraph (a)(2) of this section. The manufacturer or remanufacturer 
shall comply in all respects with the requirements of subpart G of this 
part.
    (2) Any notification required to be given by the manufacturer or 
remanufacturer under paragraph (a)(1) of this section with respect to 
any class or category of locomotives or locomotive engines shall be 
given to ultimate purchasers, subsequent purchasers (if known), and 
dealers (as applicable) in such manner and containing such information 
as required in Subparts E and H of this part.
    (3)(i) The certifying manufacturer or remanufacturer shall furnish 
with each new locomotive or locomotive engine written instructions for 
the proper maintenance and use of the engine by the ultimate purchaser 
as required under Sec. 92.211.
    (ii) The instruction under paragraph (a)(3)(i) of this section must 
not include any condition on the ultimate purchaser's using, in 
connection with such locomotive or locomotive engine, any component or 
service (other than a component or service provided without charge under 
the terms of the purchase agreement) which is identified by brand, 
trade, or corporate name. Such instructions also must not directly or 
indirectly distinguish between service performed by the franchised 
dealers of such manufacturer or remanufacturer, or any other service 
establishments with which such manufacturer or remanufacturer has a 
commercial relationship, and service performed by independent locomotive 
or locomotive engine repair facilities with which such manufacturer or 
remanufacturer has no commercial relationship.
    (iii) The prohibition of paragraph (a)(3)(ii) of this section may be 
waived by the Administrator if:
    (A) The manufacturer or remanufacturer satisfies the Administrator 
that the locomotive or locomotive engine will function properly only if 
the component or service so identified is used in connection with such 
engine; and
    (B) The Administrator finds that such a waiver is in the public 
interest.
    (iv) In addition, the manufacturer or remanufacturer shall indicate 
by

[[Page 552]]

means of a label or tag permanently affixed to the locomotive and to the 
engine that the locomotive and/or the locomotive engine is covered by a 
certificate of conformity issued for the purpose of assuring achievement 
of emission standards prescribed under section 213 of the Act. This 
label or tag shall also contain information relating to control of 
emissions as prescribed under Sec. 92.212.
    (b) The manufacturer or remanufacturer bears all cost obligation any 
dealer incurs as a result of a requirement imposed by paragraph (a) of 
this section. The transfer of any such cost obligation from a 
manufacturer or remanufacturer to a dealer through franchise or other 
agreement is prohibited.
    (c) If a manufacturer or remanufacturer includes in an advertisement 
a statement respecting the cost or value of emission control devices or 
systems, the manufacturer or remanufacturer shall set forth in the 
statement the cost or value attributed to these devices or systems by 
the Secretary of Labor (through the Bureau of Labor Statistics). The 
Secretary of Labor, and his or her representatives, has the same access 
for this purpose to the books, documents, papers, and records of a 
manufacturer or remanufacturer as the Comptroller General has to those 
of a recipient of assistance for purposes of section 311 of the Act.



   Sec. Appendix I to Part 92--Emission Related 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 cooling system).
c. Performance (charge air delivery temperature ( [deg]F) at rated power 
and one other power level under ambient conditions of 80 [deg]F and 110 
[deg]F, and 3 minutes and 15 minutes after selecting rated power, and 3 
minutes and 5 minutes after selecting other power level).
    3. Temperature control system calibration.
    4. Maximum allowable inlet air restriction.
III. Fuel System.
    1. General.
a. Engine idle speed.
    2. Carburetion.
a. Air-fuel flow calibration.
b. Idle mixture.
c. Transient enrichment system calibration.
d. Starting enrichment system calibration.
e. Altitude compensation system calibration.
f. Hot idle compensation system calibration.
    3. Fuel injection--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.

[[Page 553]]

    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 Part 92--Interpretive Ruling for Sec. 92.705--
                             Remedial Plans

    The following is an interpretive ruling set forth previously by EPA 
for on-highway vehicles. EPA expects to apply the same principles to 
locomotives.
    (1) The purpose of this ruling is to set forth EPA's interpretation 
regarding one aspect of a motor vehicle or motor vehicle 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 provide guidance to vehicle 
and engine manufacturers to better enable them to submit acceptable 
remedial plans.
    (2) Section 207(c)(1) requires the Administrator to base a recall 
order on a determination that a substantial number of in-use vehicles or 
engines within a given class or category of vehicles or engines, 
although properly maintained and used, fail to conform to the 
regulations prescribed under section 202 when in actual use throughout 
their useful lives. After making such a determination, he shall require 
the manufacturer to submit a plan to remedy the nonconformity of any 
such vehicles or engines. The plan shall provide that the manufacturer 
will remedy, at the manufacturer's expense, all properly maintained and 
used vehicles which experienced the nonconformity during their useful 
lives regardless of their age or mileage at the time of repair.

Appendix III to Part 92--Smoke Standards for Non-Normalized Measurements

                     Table III-1--Equivalent Smoke Standards for Non-Normalized Measurements
----------------------------------------------------------------------------------------------------------------
                  Path length                                               Standards
----------------------------------------------------------------------------------------------------------------
             If the path length is:                              Then the opacity may not 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.
----------------------------------------------------------------------------------------------------------------


[[Page 554]]



  Sec. Appendix IV to Part 92--Guidelines for Determining Equivalency 
                  Between Emission Measurement Systems

    This appendix describes a series of correlation criteria that EPA 
considers to be reasonable for the purpose of demonstrating equivalency 
between two test systems designed to measure the same emissions during 
FTP locomotive testing. These criteria are presented here only as 
guidelines. When requested to make a finding of equivalency, EPA could 
base its decision on criteria other than those listed here, where EPA 
has reason to believe that these criteria are not appropriate.
    (a) General approach. (1) Multiple tests should be conducted in 
pairs on the same locomotive or engine using each of the measurement 
systems.
    (2) Variations for other parameters, such as test fuel, should be 
minimized to the maximum extent possible.
    (3) Locomotive and/or locomotive engine tests conducted in 
accordance with the provisions of Subpart B of this part are preferred. 
Where appropriate, engine tests conducted in accordance with 40 CFR part 
89 may also be used.
    (4) Equivalency of the systems should be determined by comparing 
individual modal data, individual cycle-weighted data, and the average 
cycle-weighted results from each system.
    (b) Correlation criteria for particulate measurements. (1) The 
correlation coefficient (R\2\) for individual modal data should be 0.90, 
or higher.
    (2) The maximum deviation between any pair of cycle-weighted data 
should be 15 percent, or less.
    (3) The ratio of average cycle-weighted results using the alternate 
system to the average cycle-weighted results using the specified Part 92 
system (i.e., avgalt/avgspc) should be between 
0.97 and 1.05.
    (c) Correlation criteria for other measurements. Correlation 
parameters for gaseous pollutants should be better than those specified 
in paragraph (b) of this appendix for particulate measurements.
    (d) Minimum number of tests. The recommended minimum number of tests 
with each system necessary to determine equivalency is:
    (1) Four locomotive or locomotive engine tests, conducted in 
accordance with the provisions of subpart B of this part; or
    (2) Seven 8-mode nonroad engine tests, conducted in accordance with 
the provisions of 40 CFR part 89.
    (e) Statistical outliers. Statistical outliers may be excluded 
consistent with good engineering judgement. Outliers should be replaced 
by rerunning each excluded test point. Where more than one outlier is 
excluded, is recommended to perform one additional pair of tests (in 
addition to the minimum number specified in paragraph (d) of this 
appendix) for each two outliers excluded.

[63 FR 18998, Apr. 16, 1998, as amended at 70 FR 40457, July 13, 2005]



PART 93_DETERMINING CONFORMITY OF FEDERAL ACTIONS TO STATE OR FEDERAL 

IMPLEMENTATION PLANS--Table of Contents




    Subpart A_Conformity to State or Federal Implementation Plans 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 of conformity 
          determinations.
93.107 Relationship of transportation plan and TIP conformity with the 
          NEPA process.
93.108 Fiscal constraints for transportation plans and TIPs.
93.109 Criteria and procedures for determining conformity of 
          transportation 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 of TCMs.
93.114 Criteria and procedures: Currently conforming transportation plan 
          and TIP.
93.115 Criteria and procedures: Projects from a transportation plan and 
          TIP.
93.116 Criteria and procedures: Localized CO, PM10, and 
          PM2.5 violations (hot-spots).
93.117 Criteria and procedures: Compliance with PM10 and 
          PM2.5 control measures.
93.118 Criteria and procedures: Motor vehicle emissions budget.
93.119 Criteria and procedures: Interim emissions in areas without motor 
          vehicle emissions budgets.
93.120 Consequences of control strategy implementation plan failures.
93.121 Requirements for adoption or approval of projects by other 
          recipients of funds designated under title 23 U.S.C. or the 
          Federal Transit Laws.

[[Page 555]]

93.122 Procedures for determining regional transportation-related 
          emissions.
93.123 Procedures for determining localized CO, PM10, and 
          PM2.5 concentrations (hot-spot analysis).
93.124 Using the motor vehicle emissions budget in the applicable 
          implementation plan (or implementation plan submission).
93.125 Enforceability of design concept and scope and project-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 for pilot program 
          areas.

Subpart B_Determining Conformity of General Federal Actions to 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 general Federal actions.
93.159 Procedures for conformity determinations of general Federal 
          actions.
93.160 Mitigation of air quality impacts.

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

    Source: 58 FR 62235, Nov. 24, 1993, unless otherwise noted.



    Subpart A_Conformity to State or Federal Implementation Plans 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 otherwise noted.



Sec. 93.100  Purpose.

    The purpose of this subpart is to implement section 176(c) of the 
Clean Air Act (CAA), as amended (42 U.S.C. 7401 et seq.), and the 
related requirements of 23 U.S.C. 109(j), with respect to the conformity 
of transportation plans, programs, and projects which are developed, 
funded, or approved by the United States Department of Transportation 
(DOT), and by metropolitan planning organizations (MPOs) or other 
recipients of funds under title 23 U.S.C. or the Federal Transit Laws 
(49 U.S.C. Chapter 53). This subpart sets forth policy, criteria, and 
procedures for demonstrating and assuring conformity of such activities 
to an applicable implementation plan developed 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 meaning 
given them by the CAA, titles 23 and 49 U.S.C., other Environmental 
Protection Agency (EPA) regulations, or other DOT regulations, in that 
order of priority.
    Applicable implementation plan is defined in section 302(q) of the 
CAA and means the portion (or portions) of the implementation plan, or 
most recent revision thereof, which has been approved under section 110, 
or promulgated under section 110(c), or promulgated or approved pursuant 
to regulations promulgated under section 301(d) and which implements the 
relevant requirements of the CAA.
    CAA means the Clean Air Act, as amended (42 U.S.C. 7401 et 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 the 
area substantially affected by the project or over a region which would 
otherwise not be in violation of the standard during the future period 
in question, if the project were not implemented; or
    (2) To contribute to a new violation in a manner that would increase 
the frequency or severity of a new violation of a standard in such area.
    Clean data means air quality monitoring data determined by EPA to 
meet the requirements of 40 CFR part 58 that indicate attainment of the 
national ambient air quality standard.
    Control strategy implementation plan revision is the implementation 
plan which contains specific strategies for controlling the emissions of 
and reducing ambient levels of pollutants in order to satisfy CAA 
requirements for

[[Page 556]]

demonstrations of reasonable further progress and attainment (including 
implementation plan revisions submitted 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), and 189(d); sections 192(a) and 192(b), for nitrogen 
dioxide; and any other applicable CAA provision requiring a 
demonstration of reasonable further progress or attainment).
    Design concept means the type of facility identified by the project, 
e.g., freeway, expressway, arterial highway, grade-separated highway, 
reserved right-of-way rail transit, mixed-traffic rail transit, 
exclusive busway, etc.
    Design scope means the design aspects which will affect the proposed 
facility's impact on regional emissions, usually as they relate to 
vehicle or person carrying capacity and control, e.g., number of lanes 
or tracks to be constructed or added, length of project, signalization, 
access control including approximate number and 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 metropolitan planning 
area boundary, but inside the boundary of a nonattainment or maintenance 
area that contains any part of a metropolitan area(s). These areas are 
not isolated rural nonattainment and maintenance 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 any highway or 
transit project which is proposed to receive funding assistance and 
approval through the Federal-Aid Highway program or the Federal mass 
transit program, or requires Federal Highway Administration (FHWA) or 
Federal Transit Administration (FTA) approval for some aspect of the 
project, such as connection to an interstate highway or deviation from 
applicable design standards on the interstate system.
    Forecast period with respect to a transportation plan is the period 
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 a highway 
facility or highway-related program. Such an undertaking consists of all 
required phases necessary for implementation. For analytical purposes, 
it must be defined sufficiently to:
    (1) Connect logical termini and be of sufficient length to address 
environmental matters on a broad scope;
    (2) Have independent utility or significance, i.e., be usable and be 
a reasonable expenditure even if no additional transportation 
improvements in the area are made; and
    (3) Not restrict consideration of alternatives for other reasonably 
foreseeable transportation improvements.
    Horizon year is a year for which the transportation plan describes 
the envisioned transportation system according to Sec. 93.106.
    Hot-spot analysis is an estimation of likely future localized CO, 
PM10, and/or PM2.5 pollutant concentrations and a 
comparison of those concentrations to the national ambient air quality 
standards. Hot-spot analysis assesses impacts on a scale smaller than 
the entire nonattainment or maintenance area, including, for example, 
congested roadway intersections and highways or transit terminals, and 
uses an air quality dispersion model to determine the effects of 
emissions on air quality.
    1-hour ozone NAAQS means the 1-hour ozone national ambient air 
quality standard codified at 40 CFR 50.9.
    8-hour ozone NAAQS means the 8-hour ozone national ambient air 
quality standard codified at 40 CFR 50.10.
    Increase the frequency or severity means to cause a location or 
region to exceed a standard more often or to cause a violation at a 
greater concentration than previously existed and/or would otherwise 
exist during the future period in question, if the project were not 
implemented.
    Isolated rural nonattainment and maintenance areas are areas that do 
not contain or are not part of any metropolitan planning area as 
designated under the transportation planning regulations. Isolated rural 
areas do not have Federally required metropolitan transportation plans 
or TIPs and do not

[[Page 557]]

have projects that are part of the emissions analysis of any MPO's 
metropolitan transportation plan or TIP. Projects in such areas are 
instead included in statewide transportation improvement programs. These 
areas are not donut areas.
    Lapse means that the conformity determination for a transportation 
plan or TIP has expired, and thus there is no currently conforming 
transportation plan and TIP.
    Limited maintenance plan is a maintenance plan that EPA has 
determined meets EPA's limited maintenance plan policy criteria for a 
given NAAQS and pollutant. To qualify for a limited maintenance plan, 
for example, an area must have a design value that is significantly 
below a given NAAQS, and it must be reasonable to expect that a NAAQS 
violation will not result from any level of future motor vehicle 
emissions growth.
    Maintenance area means any geographic region of the United States 
previously designated nonattainment pursuant to the CAA Amendments of 
1990 and subsequently redesignated to attainment subject to the 
requirement to develop a maintenance plan under section 175A of the CAA, 
as amended.
    Maintenance plan means an implementation plan under section 175A of 
the CAA, as amended.
    Metropolitan planning organization (MPO) means the policy board of 
an organization created as a result of the designation process 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 and PM10 
nonattainment areas, respectively. For all other nonattainment areas, a 
milestone consists of an emissions level and the date on which that 
level is to be achieved as required by the applicable CAA provision for 
reasonable further progress towards attainment.
    Motor vehicle emissions budget is that portion of the total 
allowable emissions defined in the submitted or approved control 
strategy implementation plan revision or maintenance plan for a certain 
date for the purpose of meeting reasonable further progress milestones 
or demonstrating attainment or maintenance of the NAAQS, for any 
criteria pollutant or its precursors, allocated to highway and transit 
vehicle use and emissions.
    National ambient air quality standards (NAAQS) are those standards 
established pursuant to section 109 of the CAA.
    NEPA means the National Environmental Policy Act of 1969, as amended 
(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 a specific 
action to make a determination that a project is categorically excluded, 
to make a Finding of No Significant Impact, or to issue a record of 
decision on a Final Environmental Impact Statement under NEPA.
    Nonattainment area means any geographic region of the United States 
which has been designated as nonattainment under section 107 of the CAA 
for any pollutant for which a national ambient air quality standard 
exists.
    Project means a highway project or transit project.
    Protective finding means a determination by EPA that a submitted 
control strategy implementation plan revision contains adopted control 
measures or written commitments to adopt enforceable control measures 
that fully satisfy the emissions reductions requirements relevant to the 
statutory provision for which the implementation plan revision was 
submitted, such as reasonable further progress or attainment.
    Recipient of funds designated under title 23 U.S.C. or the Federal 
Transit Laws means any agency at any level of State, county, city, or 
regional government that routinely receives title 23 U.S.C. or Federal 
Transit Laws funds to construct FHWA/FTA projects, operate FHWA/FTA 
projects or equipment, purchase equipment, or undertake other services 
or operations via contracts or agreements. This definition does not 
include private landowners or developers, or contractors or entities 
that are only paid for services or products created by their own 
employees.
    Regionally significant project means a transportation project (other 
than an exempt project) that is on a facility which serves regional 
transportation

[[Page 558]]

needs (such as access to and from the area 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 terminals themselves) and would normally be included in the 
modeling of a metropolitan area's transportation network, including at a 
minimum all principal arterial highways and all fixed guideway transit 
facilities that offer an alternative to regional highway travel.
    Safety margin means the amount by which the total projected 
emissions from all sources of a given pollutant are less than the total 
emissions that would satisfy the applicable requirement for reasonable 
further progress, attainment, or maintenance.
    Standard means a national ambient air quality standard.
    Transit is mass transportation by bus, rail, or other conveyance 
which provides general or special service to the public on a regular and 
continuing basis. It does not include school buses or charter or 
sightseeing services.
    Transit project is an undertaking to implement or modify a transit 
facility or transit-related program; purchase transit vehicles or 
equipment; or provide financial assistance for transit operations. It 
does not include actions that are solely within the jurisdiction of 
local transit agencies, such as changes in routes, schedules, or fares. 
It may consist of several phases. For analytical purposes, it must be 
defined inclusively enough to:
    (1) Connect logical termini and be of sufficient length to address 
environmental matters on a broad scope;
    (2) Have independent utility or independent significance, i.e., be a 
reasonable expenditure even if no additional transportation improvements 
in the area are made; and
    (3) Not restrict consideration of alternatives for other reasonably 
foreseeable transportation improvements.
    Transportation control measure (TCM) is any measure that is 
specifically identified and committed to in the applicable 
implementation plan, including a substitute or additional TCM that is 
incorporated into the applicable SIP through the process established in 
CAA section 176(c)(8), that is either one of the types listed in CAA 
section 108, or any other measure for the purpose of reducing emissions 
or concentrations of air pollutants from transportation sources by 
reducing vehicle use or changing traffic flow or congestion conditions. 
Notwithstanding the first sentence of this definition, vehicle 
technology-based, fuel-based, and maintenance-based measures which 
control the emissions from vehicles under fixed traffic conditions are 
not TCMs for the purposes of this subpart.
    Transportation improvement program (TIP) means a transportation 
improvement program developed by a metropolitan planning organization 
under 23 U.S.C. 134(j).
    Transportation plan means the official intermodal metropolitan 
transportation plan that is developed through the metropolitan planning 
process for the metropolitan planning area, developed pursuant to 23 CFR 
part 450.
    Transportation project is a highway project or a transit project.
    Written commitment for the purposes of this subpart means a written 
commitment that includes a description of the action to be taken; a 
schedule for the completion of the action; a demonstration that funding 
necessary to implement the action has been authorized by the 
appropriating or authorizing body; and an acknowledgment that the 
commitment is an enforceable obligation under the applicable 
implementation plan.

[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40072, July 1, 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 in paragraph 
(c) of this section or Sec. 93.126, conformity determinations are 
required for:
    (i) The adoption, acceptance, approval or support of transportation 
plans and transportation plan amendments developed pursuant 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 TIP 
amendments developed pursuant to 23 CFR part 450 or 49 CFR part 613 by 
an MPO or DOT; and

[[Page 559]]

    (iii) The approval, funding, or implementation of FHWA/FTA projects.
    (2) Conformity determinations are not required under this subpart 
for individual projects which are not FHWA/FTA projects. However, Sec. 
93.121 applies to such projects if they are regionally significant.
    (b) Geographic applicability. The provisions of this subpart shall 
apply in all nonattainment and maintenance areas for transportation-
related criteria pollutants for which the area is designated 
nonattainment or has a maintenance plan.
    (1) The provisions of this subpart apply with respect to emissions 
of the following criteria pollutants: ozone, carbon monoxide (CO), 
nitrogen dioxide (NO2), particles with an aerodynamic 
diameter less than or equal to a nominal 10 micrometers 
(PM10); and particles with an aerodynamic diameter less than 
or equal to a nominal 2.5 micrometers (PM2.5).
    (2) The provisions of this subpart also apply with respect to 
emissions of the following precursor pollutants:
    (i) Volatile organic compounds (VOC) and nitrogen oxides 
(NOX) in ozone areas;
    (ii) NOX in NO2 areas;
    (iii) VOC and/or NOX in PM10 areas if the EPA 
Regional Administrator or the director of the State air agency has made 
a finding that transportation-related emissions of one or both of these 
precursors within the nonattainment area are a significant contributor 
to the PM10 nonattainment problem and has so notified the MPO 
and DOT, or if the applicable implementation plan (or implementation 
plan submission) establishes an approved (or adequate) budget for such 
emissions as part of the reasonable further progress, attainment or 
maintenance strategy;
    (iv) NOX in PM2.5 areas, unless both the EPA 
Regional Administrator and the director of the state air agency have 
made a finding that transportation-related emissions of NOX 
within the nonattainment area are not a significant contributor to the 
PM2.5 nonattainment problem and has so notified the MPO and 
DOT, or the applicable implementation plan (or implementation plan 
submission) does not establish an approved (or adequate) budget for such 
emissions as part of the reasonable further progress, attainment or 
maintenance strategy; and
    (v) VOC, sulfur dioxide (SO2) and/or ammonia (NH3) in 
PM2.5 areas either if the EPA Regional Administrator or the 
director of the state air agency has made a finding that transportation-
related emissions of any of these precursors within the nonattainment 
area are a significant contributor to the PM2.5 nonattainment 
problem and has so notified the MPO and DOT, or if the applicable 
implementation plan (or implementation plan submission) establishes an 
approved (or adequate) budget for such emissions as part of the 
reasonable further progress, attainment or maintenance strategy.
    (3) The provisions of this subpart apply to PM2.5 
nonattainment and maintenance areas with respect to PM2.5 
from re-entrained road dust if the EPA Regional Administrator or the 
director of the State air agency has made a finding that re-entrained 
road dust emissions within the area are a significant contributor to the 
PM2.5 nonattainment problem and has so notified the MPO and 
DOT, or if the applicable implementation plan (or implementation plan 
submission) includes re-entrained road dust in the approved (or 
adequate) budget as part of the reasonable further progress, attainment 
or maintenance strategy. Re-entrained road dust emissions are produced 
by travel on paved and unpaved roads (including emissions from anti-skid 
and deicing materials).
    (4) The provisions of this subpart apply to maintenance areas 
through the last year of a maintenance area's approved CAA section 
175A(b) maintenance plan, unless the applicable implementation plan 
specifies that the provisions of this subpart shall apply for more than 
20 years.
    (c) Limitations. In order to receive any FHWA/FTA approval or 
funding actions, including NEPA approvals, for a project phase subject 
to this subpart, a currently conforming transportation plan and TIP must 
be in place at the time of project approval as described in Sec. 
93.114, except as provided by Sec. 93.114(b).
    (d) Grace period for new nonattainment areas. For areas or portions 
of areas

[[Page 560]]

which have been continuously designated attainment or not designated for 
any NAAQS for ozone, CO, PM10, PM2.5 or 
NO2 since 1990 and are subsequently redesignated to 
nonattainment or designated nonattainment for any NAAQS for any of these 
pollutants, the provisions of this subpart shall not apply with respect 
to that NAAQS for 12 months following the effective date of final 
designation to nonattainment for each NAAQS for 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 FR 24291, May 
6, 2005; 73 FR 4439, Jan. 24, 2008]



Sec. 93.103  Priority.

    When assisting or approving any action with air quality-related 
consequences, FHWA and FTA shall give priority to the implementation of 
those transportation portions of an applicable implementation plan 
prepared to attain and maintain the NAAQS. This priority shall be 
consistent with statutory requirements for allocation of funds among 
States or other jurisdictions.



Sec. 93.104  Frequency of conformity determinations.

    (a) Conformity determinations and conformity redeterminations for 
transportation plans, TIPs, and FHWA/FTA projects must be made according 
to the requirements of this section and the applicable implementation 
plan.
    (b) Frequency of conformity determinations for transportation plans. 
(1) Each new transportation plan must be demonstrated to conform before 
the transportation plan is approved by the MPO or accepted by DOT.
    (2) All transportation plan amendments must be found to conform 
before the transportation plan amendments are approved by the MPO or 
accepted by DOT, unless the amendment merely adds or deletes exempt 
projects listed in Sec. 93.126 or Sec. 93.127. The conformity 
determination must be based on the transportation plan and the amendment 
taken as a whole.
    (3) The MPO and DOT must determine the conformity of the 
transportation plan (including a new regional emissions analysis) no 
less frequently than every four years. If more than four years elapse 
after DOT's conformity determination without the MPO and DOT determining 
conformity of the transportation plan, a 12-month grace period will be 
implemented as described in paragraph (f) of this section. At the end of 
this 12-month grace period, the existing conformity determination will 
lapse.
    (c) Frequency of conformity determinations for transportation 
improvement programs. (1) A new TIP must be demonstrated to conform 
before the TIP is approved by the MPO or accepted by DOT.
    (2) A TIP amendment requires a new conformity determination for the 
entire TIP before the amendment is approved by the MPO or accepted by 
DOT, unless the amendment merely adds or deletes exempt projects listed 
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 than 
every four years. If more than four years elapse after DOT's conformity 
determination without the MPO and DOT determining conformity of the TIP, 
a 12-month grace period will be implemented as described 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 conform before they 
are adopted, accepted, approved, or funded. Conformity must be 
redetermined for any FHWA/FTA project if one of the following occurs: a 
significant change in the project's design concept and scope; three 
years elapse since the most recent major step to advance the project; or 
initiation of a supplemental environmental document for air quality 
purposes. Major steps include NEPA process completion; start of final 
design; acquisition of a significant portion of the right-of-way; and, 
construction (including Federal approval of plans, specifications and 
estimates).
    (e) Triggers for transportation plan and TIP conformity 
determinations. Conformity of existing transportation plans and TIPs 
must be redetermined within two years of the following, or

[[Page 561]]

after a 12-month grace period (as described in paragraph (f) of this 
section) the existing conformity determination will lapse, and no new 
project-level conformity determinations may be made until conformity of 
the transportation plan and TIP has been determined by the MPO and DOT:
    (1) The effective date of EPA's finding that motor vehicle emissions 
budgets from an initially submitted control strategy implementation plan 
or maintenance plan are adequate pursuant to Sec. 93.118(e) and can be 
used for transportation conformity purposes;
    (2) The effective date of EPA approval of a control strategy 
implementation plan revision or maintenance plan which establishes or 
revises a motor vehicle emissions budget if that budget has not yet been 
used in a conformity determination prior to approval; and
    (3) The effective date of EPA promulgation of an implementation plan 
which establishes or revises a motor vehicle emissions budget.
    (f) Lapse grace period. During the 12-month grace period referenced 
in paragraphs (b)(3), (c)(3), and (e) of this section, a project may be 
found to conform according to the requirements of this part if:
    (1) The project is included in the currently conforming 
transportation plan and TIP (or regional emissions analysis); or
    (2) the project is included in the most recent conforming 
transportation 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 under Sec. 
51.390 of this chapter shall include procedures for interagency 
consultation (Federal, State, and local), resolution of conflicts, and 
public consultation as described in paragraphs (a) through (e) of this 
section. Public consultation procedures will be developed in accordance 
with the requirements for public involvement in 23 CFR part 450.
    (1) The implementation plan revision shall include procedures to be 
undertaken by MPOs, State departments of transportation, and DOT with 
State and local air quality agencies and EPA before making conformity 
determinations, and by State and local air agencies and EPA with MPOs, 
State departments of transportation, and DOT in developing applicable 
implementation plans.
    (2) Before EPA approves the conformity implementation plan revision 
required by Sec. 51.390 of this chapter, MPOs and State departments of 
transportation must provide reasonable opportunity for consultation with 
State air agencies, local air quality and transportation agencies, DOT, 
and EPA, including consultation on the issues described in paragraph 
(c)(1) of this section, before making conformity determinations.
    (b) Interagency consultation procedures: General factors. (1) States 
shall provide well-defined consultation procedures in the implementation 
plan whereby representatives of the MPOs, State and local air quality 
planning agencies, State and local transportation agencies, and other 
organizations with responsibilities for developing, submitting, or 
implementing provisions of an implementation plan required by the CAA 
must consult with each other and with local or regional offices of EPA, 
FHWA, and FTA on the development of the implementation plan, the 
transportation plan, the TIP, and associated conformity determinations.
    (2) Interagency consultation procedures shall include at a minimum 
the following general factors and the specific processes in paragraph 
(c) of this section:
    (i) The roles and responsibilities assigned to each agency at each 
stage in the implementation plan development process and the 
transportation 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 formal adoption or 
publication;
    (iv) The frequency of, or process for convening, consultation 
meetings and

[[Page 562]]

responsibilities for establishing meeting agendas;
    (v) A process for responding to the significant comments of involved 
agencies; and
    (vi) A process for the development of a list of the TCMs which are 
in the applicable implementation plan.
    (c) Interagency consultation procedures: Specific processes. 
Interagency consultation procedures shall also include the following 
specific processes:
    (1) A process involving the MPO, State and local air quality 
planning agencies, State and local transportation agencies, EPA, and DOT 
for the following:
    (i) Evaluating and choosing a model (or models) and associated 
methods and assumptions to be used in hot-spot analyses and regional 
emissions analyses;
    (ii) Determining which minor arterials and other transportation 
projects should be considered ``regionally significant'' for the 
purposes of regional emissions analysis (in addition to those 
functionally classified as principal arterial or higher or fixed 
guideway systems or extensions that offer an alternative to regional 
highway travel), and which projects should be considered to have a 
significant change in design concept and scope from the transportation 
plan or TIP;
    (iii) Evaluating whether projects otherwise exempted from meeting 
the requirements of this subpart (see Sec. Sec. 93.126 and 93.127) 
should be treated as non-exempt in cases where potential adverse 
emissions impacts may exist for any reason;
    (iv) Making a determination, as required by Sec. 93.113(c)(1), 
whether past obstacles to implementation of TCMs which are behind the 
schedule established in the applicable implementation plan have been 
identified and are being overcome, and whether State and local agencies 
with influence over approvals or funding for TCMs are giving maximum 
priority to approval or funding for TCMs. This process shall also 
consider whether delays in TCM implementation necessitate revisions to 
the applicable implementation plan to remove TCMs or substitute TCMs or 
other emission reduction measures;
    (v) Notification of transportation plan or TIP amendments which 
merely add or delete exempt projects listed in Sec. 93.126 or Sec. 
93.127; and
    (vi) Choosing conformity tests and methodologies for isolated rural 
nonattainment and maintenance areas, as required by Sec. 
93.109(l)(2)(iii).
    (2) A process involving the MPO and State and local air quality 
planning agencies and transportation agencies for the following:
    (i) Evaluating events which will trigger new conformity 
determinations in addition to those triggering events established in 
Sec. 93.104; and
    (ii) Consulting on emissions analysis for transportation activities 
which cross the borders of MPOs or nonattainment areas or air basins.
    (3) Where the metropolitan planning area does not include the entire 
nonattainment or maintenance area, a process involving the MPO and the 
State department of transportation for cooperative planning and analysis 
for purposes of determining conformity of all projects outside the 
metropolitan area and within the nonattainment or maintenance area.
    (4) A process to ensure that plans for construction of regionally 
significant projects which are not FHWA/FTA projects (including projects 
for which alternative locations, design concept and scope, or the no-
build option are still being considered), including those by recipients 
of funds designated under title 23 U.S.C. or the Federal Transit Laws, 
are disclosed to the MPO on a regular basis, and to ensure that any 
changes to those plans are immediately disclosed.
    (5) A process involving the MPO and other recipients of funds 
designated under title 23 U.S.C. or the Federal Transit Laws for 
assuming the location and design concept and scope of projects which are 
disclosed to the MPO as required by paragraph (c)(4) of this section but 
whose sponsors have not yet decided these features, in sufficient detail 
to perform the regional emissions analysis according to the requirements 
of Sec. 93.122.
    (6) A process for consulting on the design, schedule, and funding of 
research and data collection efforts and regional transportation model 
development by

[[Page 563]]

the MPO (e.g., household/ travel transportation surveys).
    (7) A process for providing final documents (including applicable 
implementation plans and implementation plan revisions) and supporting 
information to each agency after approval or adoption. This process is 
applicable to all agencies described in paragraph (a)(1) of this 
section, including Federal agencies.
    (d) Resolving conflicts. Conflicts among State agencies or between 
State agencies and an MPO shall be escalated to the Governor if they 
cannot be resolved by the heads of the involved agencies. The State air 
agency has 14 calendar days to appeal to the Governor after the State 
DOT or MPO has notified the State air agency head of the resolution of 
his or her comments. The implementation plan revision required by Sec. 
51.390 of this chapter shall define the procedures for starting the 14-
day clock. If the State air agency appeals to the Governor, the final 
conformity determination must have the concurrence of the Governor. If 
the State air agency does not appeal to the Governor within 14 days, the 
MPO or State department of transportation may proceed with the final 
conformity determination. The Governor may delegate his or her role in 
this process, but not to the head or staff of the State or local air 
agency, State department of transportation, State transportation 
commission or board, or an MPO.
    (e) Public consultation procedures. Affected agencies making 
conformity determinations on transportation plans, programs, and 
projects shall establish a proactive public involvement process which 
provides opportunity for public review and comment by, at a minimum, 
providing reasonable public access to technical and policy information 
considered by the agency at the beginning of the public comment period 
and prior to taking formal action on a conformity determination for all 
transportation plans and TIPs, consistent with these requirements and 
those of 23 CFR 450.316(a). Any charges imposed for public inspection 
and copying should be consistent with the fee schedule contained in 49 
CFR 7.43. In addition, these agencies must specifically address in 
writing all public comments that known plans for a regionally 
significant project which is not receiving FHWA or FTA funding or 
approval have not been properly reflected in the emissions analysis 
supporting a proposed conformity finding for a transportation plan or 
TIP. These agencies shall also provide opportunity for public 
involvement in conformity determinations for projects where otherwise 
required by law.

[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40073, July 1, 2004; 70 
FR 24291, May 6, 2005; 71 FR 12510, Mar. 10, 2006; 73 FR 4439, Jan. 24, 
2008]



Sec. 93.106  Content of transportation plans and timeframe of conformity 

determinations.

    (a) Transportation plans adopted after January 1, 1997 in serious, 
severe, or extreme ozone nonattainment areas and in serious CO 
nonattainment areas. If the metropolitan planning area contains an 
urbanized area population greater than 200,000, the transportation plan 
must specifically describe the transportation system envisioned for 
certain future years which shall be called horizon years.
    (1) The agency or organization developing the transportation plan 
may choose any years to be horizon years, subject to the following 
restrictions:
    (i) Horizon years may be no more than 10 years apart;
    (ii) The first horizon year may be no more than 10 years from the 
base year used to validate the transportation demand planning model;
    (iii) The attainment year must be a horizon year if it is in the 
timeframe of the transportation plan and conformity determination;
    (iv) The last year of the transportation plan's forecast period must 
be a horizon year; and
    (v) If the timeframe of the conformity determination has been 
shortened under paragraph (d) of this section, the last year of the 
timeframe of the conformity determination must be a horizon year.
    (2) For these horizon years:
    (i) The transportation plan shall quantify and document the 
demographic and employment factors influencing expected transportation 
demand, including land use forecasts, in

[[Page 564]]

accordance with implementation plan provisions and the consultation 
requirements specified by Sec. 93.105;
    (ii) The highway and transit system shall be described in terms of 
the regionally significant additions or modifications to the existing 
transportation network which the transportation plan envisions to be 
operational in the horizon years. Additions and modifications to the 
highway network shall be sufficiently identified to indicate 
intersections with existing regionally significant facilities, and to 
determine their effect on route options between transportation analysis 
zones. Each added or modified highway segment shall also be sufficiently 
identified in terms of its design concept and design scope to allow 
modeling of travel times under various traffic volumes, consistent with 
the modeling methods for area-wide transportation analysis in use by the 
MPO. Transit facilities, equipment, and services envisioned for the 
future shall be identified in terms of design concept, design scope, and 
operating policies that are sufficient for modeling of their transit 
ridership. Additions and modifications to the transportation network 
shall be described sufficiently to show that there is a reasonable 
relationship between expected land use and the envisioned transportation 
system; and
    (iii) Other future transportation policies, requirements, services, 
and activities, including intermodal activities, shall be described.
    (b) Two-year grace period for transportation plan requirements in 
certain ozone and CO areas. The requirements of paragraph (a) of this 
section apply to such areas or portions of such areas that have 
previously not been required to meet these requirements for any existing 
NAAQS two years from the following:
    (1) The effective date of EPA's reclassification of an ozone or CO 
nonattainment area that has an urbanized area population greater than 
200,000 to serious or above;
    (2) The official notice by the Census Bureau that determines the 
urbanized area population of a serious or above ozone or CO 
nonattainment area to be greater than 200,000; or,
    (3) The effective date of EPA's action that classifies a newly 
designated ozone or CO nonattainment area that has an urbanized area 
population greater than 200,000 as serious or above.
    (c) Transportation plans for other areas. Transportation plans for 
other areas must meet the requirements of paragraph (a) of this section 
at least to the extent it has been the previous practice of the MPO to 
prepare plans which meet those requirements. Otherwise, the 
transportation system envisioned for the future must be sufficiently 
described within the transportation plans so that a conformity 
determination can be made according to the criteria and procedures of 
Sec. Sec. 93.109 through 93.119.
    (d) Timeframe of conformity determination. (1) Unless an election is 
made under paragraph (d)(2) or (d)(3) of this section, the timeframe of 
the conformity determination must be through the last year of the 
transportation plan's forecast period.
    (2) For areas that do not have an adequate or approved CAA section 
175A(b) maintenance plan, the MPO may elect to shorten the timeframe of 
the transportation plan and TIP conformity determination, after 
consultation with state and local air quality agencies, solicitation of 
public comments, and consideration of such comments.
    (i) The shortened timeframe of the conformity determination must 
extend 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 motor vehicle 
emissions budget(s) is established in the submitted or applicable 
implementation plan; or
    (C) The year after the completion date of a regionally significant 
project if the project is included in the TIP or the project requires 
approval before the subsequent conformity determination.
    (ii) The conformity determination must be accompanied by a regional 
emissions analysis (for informational purposes only) for the last year 
of the transportation plan and for any year shown to exceed motor 
vehicle emissions budgets in a prior regional emissions analysis, if 
such a year extends

[[Page 565]]

beyond the timeframe of the conformity determination.
    (3) For areas that have an adequate or approved CAA section 175A(b) 
maintenance plan, the MPO may elect to shorten the timeframe of the 
conformity determination to extend through the last year of such 
maintenance plan after consultation with state and local air quality 
agencies, solicitation of public comments, and consideration of 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 elects otherwise, 
after consultation with state and local air quality agencies, 
solicitation of public comments, and consideration of such comments.
    (e) Savings. The requirements of this section supplement other 
requirements of applicable law or regulation governing the format or 
content of transportation plans.

[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40073, July 1, 2004; 73 
FR 4439, Jan. 24, 2008]



Sec. 93.107  Relationship of transportation plan and TIP conformity with the 

NEPA process.

    The degree of specificity required in the transportation plan and 
the specific travel network assumed for air quality modeling do not 
preclude the consideration of alternatives in the NEPA process or other 
project development studies. Should the NEPA process result in a project 
with design concept and scope significantly different from that in the 
transportation plan or TIP, the project must meet the criteria in 
Sec. Sec. 93.109 through 93.119 for projects not from a TIP before NEPA 
process completion.



Sec. 93.108  Fiscal constraints for transportation plans and TIPs.

    Transportation plans and TIPs must be fiscally constrained 
consistent with DOT's metropolitan planning regulations at 23 CFR part 
450 in order to be found in conformity.



Sec. 93.109  Criteria and procedures for determining conformity of 

transportation plans, programs, and projects: General.

    (a) In order for each transportation plan, program, and FHWA/FTA 
project to be found to conform, the MPO and DOT must demonstrate that 
the applicable criteria and procedures in this subpart are satisfied, 
and the MPO and DOT must comply with all applicable conformity 
requirements of implementation plans and of court orders for the area 
which pertain specifically to conformity. The criteria for making 
conformity determinations differ based on the action under review 
(transportation plans, TIPs, and FHWA/FTA projects), the relevant 
pollutant(s), and the status of the implementation plan.
    (b) Table 1 in this paragraph indicates the criteria and procedures 
in Sec. Sec. 93.110 through 93.119 which apply for transportation 
plans, TIPs, and FHWA/FTA projects. Paragraphs (c) through (i) of this 
section explain when the budget, interim emissions, and hot-spot tests 
are required for each pollutant and NAAQS. Paragraph (j) of this section 
addresses conformity requirements for areas with approved or adequate 
limited maintenance plans. Paragraph (k) of this section addresses 
nonattainment and maintenance areas which EPA has determined have 
insignificant motor vehicle emissions. Paragraph (l) of this section 
addresses isolated rural nonattainment 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 budget and/or Interim
                                          emissions
TIP:
  Sec.  93.113(c)                       TCMs
  Sec.  93.118 or Sec.  93.119         Emissions budget and/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 PM2.5 hot-spots.
  Sec.  93.117                          PM10 and PM2.5 control measures

[[Page 566]]

 
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 PM2.5 hot-spots.
  Sec.  93.117                          PM10 and PM2.5 control measures
  Sec.  93.118 and/or Sec.  93.119     Emissions budget and/or Interim
                                          emissions
------------------------------------------------------------------------

    (c) 1-hour ozone NAAQS nonattainment and maintenance areas. This 
paragraph applies when an area is nonattainment or maintenance for the 
1-hour ozone NAAQS (i.e., until the effective date of any revocation of 
the 1-hour ozone NAAQS for an area). In addition to the criteria listed 
in Table 1 in paragraph (b) of this section that are required to be 
satisfied at all times, in such ozone nonattainment and maintenance 
areas conformity determinations must include a demonstration that the 
budget and/or interim emissions tests are satisfied as described in the 
following:
    (1) In all 1-hour ozone nonattainment and maintenance areas the 
budget test must be satisfied as required by Sec. 93.118 for conformity 
determinations made on or after:
    (i) The effective date of EPA's finding that a motor vehicle 
emissions budget in a submitted control strategy implementation plan 
revision or maintenance plan for the 1-hour ozone NAAQS is adequate for 
transportation conformity purposes;
    (ii) The publication date of EPA's approval of such a budget in the 
Federal Register; or
    (iii) The effective date of EPA's approval of such a budget in the 
Federal Register, if such approval is completed through direct final 
rulemaking.
    (2) In ozone nonattainment areas that are required to submit a 
control strategy implementation plan revision for the 1-hour ozone NAAQS 
(usually moderate and above areas), the interim emissions tests must be 
satisfied as required by Sec. 93.119 for conformity determinations made 
when there is no approved motor vehicle emissions budget from an 
applicable implementation plan for the 1-hour ozone NAAQS and no 
adequate motor vehicle emissions budget from a submitted control 
strategy implementation plan revision or maintenance plan for the 1-hour 
ozone NAAQS.
    (3) An ozone nonattainment area must satisfy the interim emissions 
test for NOX, as required by Sec. 93.119, if the 
implementation plan or plan submission that is applicable for the 
purposes of conformity determinations is a 15% plan or Phase I 
attainment demonstration that does not include a motor vehicle emissions 
budget for NOX. The implementation plan for the 1-hour ozone 
NAAQS will be considered to establish a motor vehicle emissions budget 
for NOX if the implementation plan or plan submission 
contains an explicit NOX motor vehicle emissions budget that 
is intended to act as a ceiling on future NOX emissions, and 
the NOX motor vehicle emissions budget is a net reduction 
from NOX emissions levels in 1990.
    (4) Ozone nonattainment areas that have not submitted a maintenance 
plan and that are not required to submit a control strategy 
implementation plan revision for the 1-hour ozone NAAQS (usually 
marginal and below 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 revision 
for the 1-hour ozone NAAQS that contains motor vehicle emissions 
budget(s) and a reasonable further progress or attainment demonstration, 
and the budget test required by Sec. 93.118 must be satisfied using the 
adequate or approved motor vehicle emissions budget(s) (as described in 
paragraph (c)(1) of this section).
    (5) Notwithstanding paragraphs (c)(1) and (c)(2) of this section, 
moderate and above ozone nonattainment areas with three years of clean 
data for the 1-hour ozone NAAQS that have not submitted a maintenance 
plan and that EPA has determined are not subject to the Clean Air Act 
reasonable further progress and attainment demonstration requirements 
for the 1-hour ozone NAAQS must satisfy one of the following 
requirements:
    (i) The interim emissions tests as required by Sec. 93.119;
    (ii) The budget test as required by Sec. 93.118, using the adequate 
or approved

[[Page 567]]

motor vehicle emissions budgets in the submitted or applicable control 
strategy implementation plan for the 1-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, using the motor 
vehicle emissions of ozone precursors in the most recent year of clean 
data as motor vehicle emissions budgets, if such budgets are established 
by the EPA rulemaking that determines that the area has clean data for 
the 1-hour ozone NAAQS.
    (d) 8-hour ozone NAAQS nonattainment and maintenance areas without 
motor vehicle emissions budgets for the 1-hour ozone NAAQS for any 
portion of the 8-hour nonattainment area. This paragraph applies to 
areas that were never designated nonattainment for the 1-hour ozone 
NAAQS and areas that were designated nonattainment for the 1-hour ozone 
NAAQS but that never submitted a control strategy SIP or maintenance 
plan with approved or adequate motor vehicle emissions budgets. This 
paragraph applies 1 year after the effective date of EPA's nonattainment 
designation for the 8-hour ozone NAAQS for an area, according to Sec. 
93.102(d). In addition to the criteria listed in Table 1 in paragraph 
(b) of this section that are required to be satisfied at all times, in 
such 8-hour ozone nonattainment and maintenance areas conformity 
determinations must include a demonstration that the budget and/or 
interim emissions tests are satisfied as described in the following:
    (1) In such 8-hour ozone nonattainment and maintenance areas the 
budget test must be satisfied as required by Sec. 93.118 for conformity 
determinations made on or after:
    (i) The effective date of EPA's finding that a motor vehicle 
emissions budget in a submitted control strategy implementation plan 
revision or maintenance plan for the 8-hour ozone NAAQS is adequate for 
transportation conformity purposes;
    (ii) The publication date of EPA's approval of such a budget in the 
Federal Register; or
    (iii) The effective date of EPA's approval of such a budget in the 
Federal Register, if such approval is completed through direct final 
rulemaking.
    (2) In ozone nonattainment areas that are required to submit a 
control strategy implementation plan revision for the 8-hour ozone NAAQS 
(usually moderate and above and certain Clean Air Act, part D, subpart 1 
areas), the interim emissions tests must be satisfied as required by 
Sec. 93.119 for conformity determinations made when there is no 
approved motor vehicle emissions budget from an applicable 
implementation plan for the 8-hour ozone NAAQS and no adequate motor 
vehicle emissions budget from a submitted control strategy 
implementation plan revision or maintenance plan for the 8-hour ozone 
NAAQS.
    (3) Such an 8-hour ozone nonattainment area must satisfy the interim 
emissions test for NOX, as required by Sec. 93.119, if the 
implementation plan or plan submission that is applicable for the 
purposes of conformity determinations is a 15% plan or other control 
strategy SIP that addresses reasonable further progress that does not 
include a motor vehicle emissions budget for NOX. The 
implementation plan for the 8-hour ozone NAAQS will be considered to 
establish a motor vehicle emissions budget for NOX if the 
implementation plan or plan submission contains an explicit 
NOX motor vehicle emissions budget that is intended to act as 
a ceiling on future NOX emissions, and the NOX 
motor vehicle emissions budget is a net reduction from NOX 
emissions levels in 2002.
    (4) Ozone nonattainment areas that have not submitted a maintenance 
plan and that are not required to submit a control strategy 
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 revision 
for the 8-hour ozone NAAQS that contains motor vehicle emissions 
budget(s) and a reasonable further progress or attainment demonstration, 
and the budget test required by Sec. 93.118 must be satisfied using the 
adequate or approved

[[Page 568]]

motor vehicle emissions budget(s) (as described in paragraph (d)(1) of 
this section).
    (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 that EPA has 
determined are not subject to the Clean Air Act reasonable further 
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 by Sec. 93.119;
    (ii) The budget test as required by Sec. 93.118, using the adequate 
or approved motor vehicle emissions budgets in the submitted or 
applicable control strategy implementation plan for the 8-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, using the motor 
vehicle emissions of ozone precursors in the most recent year of clean 
data as motor vehicle emissions budgets, if such budgets are established 
by the EPA rulemaking that determines that the area has clean data for 
the 8-hour ozone NAAQS.
    (e) 8-hour ozone NAAQS nonattainment and maintenance areas with 
motor vehicle emissions budgets for the 1-hour ozone NAAQS that cover 
all or a portion of the 8-hour nonattainment area. This provision 
applies 1 year after the effective date of EPA's nonattainment 
designation for the 8-hour ozone NAAQS for an area, according to Sec. 
93.102(d). In addition to the criteria listed in Table 1 in paragraph 
(b) of this section that are required to be satisfied at all times, in 
such 8-hour ozone nonattainment and maintenance areas conformity 
determinations must include a demonstration that the budget and/or 
interim emissions tests are satisfied as described in the following:
    (1) In such 8-hour ozone nonattainment and maintenance areas the 
budget test must be satisfied as required by Sec. 93.118 for conformity 
determinations made on or after:
    (i) The effective date of EPA's finding that a motor vehicle 
emissions budget in a submitted control strategy implementation plan 
revision or maintenance plan for the 8-hour ozone NAAQS is adequate for 
transportation conformity purposes;
    (ii) The publication date of EPA's approval of such a budget in the 
Federal Register; or
    (iii) The effective date of EPA's approval of such a budget in the 
Federal Register, if such approval is completed through direct final 
rulemaking.
    (2) Prior to paragraph (e)(1) of this section applying, the 
following test(s) must be satisfied:
    (i) If the 8-hour ozone nonattainment area covers the same 
geographic area as the 1-hour ozone nonattainment or maintenance 
area(s), the budget test as required by Sec. 93.118 using the approved 
or adequate motor vehicle emissions budgets in the 1-hour ozone 
applicable implementation plan or implementation plan submission;
    (ii) If the 8-hour ozone nonattainment area covers a smaller 
geographic area within the 1-hour ozone nonattainment or maintenance 
area(s), the budget test as required by Sec. 93.118 for either:
    (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 plan submission 
where such portion(s) can reasonably be identified through the 
interagency consultation process required by Sec. 93.105; or
    (B) The 1-hour nonattainment area using the approved or adequate 
motor vehicle emissions budgets in the 1-hour ozone applicable 
implementation plan or implementation plan submission. If additional 
emissions reductions are necessary to meet the budget test for the 8-
hour ozone NAAQS in such cases, these emissions reductions must come 
from within the 8-hour nonattainment area;
    (iii) If the 8-hour ozone nonattainment area covers a larger 
geographic area and encompasses the entire 1-hour ozone nonattainment or 
maintenance area(s):
    (A) The budget test as required by Sec. 93.118 for the portion of 
the 8-hour ozone nonattainment area covered by the approved or adequate 
motor vehicle emissions budgets in the 1-hour

[[Page 569]]

ozone applicable implementation plan or implementation plan submission; 
and
    (B) The interim emissions tests as required by Sec. 93.119 for 
either: the portion of the 8-hour ozone nonattainment area not covered 
by the approved or adequate budgets in the 1-hour ozone implementation 
plan, the entire 8-hour ozone nonattainment area, or the entire portion 
of the 8-hour ozone nonattainment area within an individual state, in 
the case where separate 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 the portion of 
the 8-hour ozone nonattainment area covered by the corresponding portion 
of the approved or adequate motor vehicle emissions budgets in the 1-
hour ozone applicable implementation plan or implementation plan 
submission where they can be reasonably identified through the 
interagency consultation process required by Sec. 93.105; and
    (B) The interim emissions tests as required by Sec. 93.119, when 
applicable, for either: the portion of the 8-hour ozone nonattainment 
area not covered by the approved or adequate budgets in the 1-hour ozone 
implementation plan, the entire 8-hour ozone nonattainment area, or the 
entire portion of the 8-hour ozone nonattainment area within an 
individual state, in the case where separate 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 the interim 
emissions test for NOX, as required by Sec. 93.119, if the 
only implementation plan or plan submission that is applicable for the 
purposes of conformity determinations is a 15% plan or other control 
strategy SIP that addresses reasonable further progress that does not 
include a motor vehicle emissions budget for NOX. The 
implementation plan for the 8-hour ozone NAAQS will be considered to 
establish a motor vehicle emissions budget for NOX if the 
implementation plan or plan submission contains an explicit 
NOX motor vehicle emissions budget that is intended to act as 
a ceiling on future NOX emissions, and the NOX 
motor vehicle emissions budget is a net reduction from NOX 
emissions levels in 2002. Prior to an adequate or approved 
NOX motor vehicle emissions budget in the implementation plan 
submission for the 8-hour ozone NAAQS, the implementation plan for the 
1-hour ozone NAAQS will be considered to establish a motor vehicle 
emissions budget for NOX if the implementation plan contains 
an explicit NOX motor vehicle emissions budget that is 
intended to act as a ceiling on future NOX emissions, and the 
NOX motor vehicle emissions budget is a net 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 that EPA has 
determined are not subject to the Clean Air Act reasonable further 
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 by 
Sec. 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, using the adequate 
or approved motor vehicle emissions budgets in the submitted or 
applicable control strategy implementation plan for the 8-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, using the motor 
vehicle emissions of ozone precursors in the most recent year of clean 
data as motor vehicle emissions budgets, if such budgets are established 
by the EPA rulemaking that determines that the area has clean data for 
the 8-hour ozone NAAQS.
    (f) CO nonattainment and maintenance areas. In addition to the 
criteria listed in Table 1 in paragraph (b) of this section that are 
required to be satisfied at all times, in CO nonattainment and

[[Page 570]]

maintenance areas conformity determinations must include a demonstration 
that the hot-spot, budget and/or interim emissions tests are satisfied 
as described in the following:
    (1) FHWA/FTA projects in CO nonattainment or maintenance areas must 
satisfy the hot spot test required by Sec. 93.116(a) at all times. 
Until a CO attainment demonstration or maintenance plan is approved by 
EPA, FHWA/FTA projects must also satisfy the hot spot test required by 
Sec. 93.116(b).
    (2) In CO nonattainment and maintenance areas the budget test must 
be satisfied as required by Sec. 93.118 for conformity determinations 
made on or after:
    (i) The effective date of EPA's finding that a motor vehicle 
emissions budget in a submitted control strategy implementation plan 
revision or maintenance plan is adequate for transportation conformity 
purposes;
    (ii) The publication date of EPA's approval of such a budget in the 
Federal Register; or
    (iii) The effective date of EPA's approval of such a budget in the 
Federal Register, if such approval is completed through direct final 
rulemaking.
    (3) Except as provided in paragraph (f)(4) of this section, in CO 
nonattainment areas the interim emissions tests must be satisfied as 
required by Sec. 93.119 for conformity determinations made when there 
is no approved motor vehicle emissions budget from an applicable 
implementation plan and no adequate motor vehicle emissions budget from 
a submitted control strategy implementation plan revision or maintenance 
plan.
    (4) CO nonattainment areas that have not submitted a maintenance 
plan 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 or not 
classified CO 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 revision 
that contains motor vehicle emissions budget(s) and an attainment 
demonstration, and the budget test required by Sec. 93.118 must be 
satisfied using the adequate or approved motor vehicle emissions 
budget(s) (as described in paragraph (f)(2) of this section).
    (g) PM10 nonattainment and maintenance areas. In addition to the 
criteria listed in Table 1 in paragraph (b) of this section that are 
required to be satisfied at all times, in PM10 nonattainment 
and maintenance areas conformity determinations must include a 
demonstration that the hot-spot, budget and/or interim emissions tests 
are satisfied as described in the following:
    (1) FHWA/FTA projects in PM10 nonattainment or 
maintenance areas must satisfy the hot spot test required by Sec. 
93.116(a).
    (2) In PM10 nonattainment and maintenance areas the 
budget test must be satisfied as required by Sec. 93.118 for conformity 
determinations made on or after:
    (i) The effective date of EPA's finding that a motor vehicle 
emissions budget in a submitted control strategy implementation plan 
revision or maintenance plan is adequate for transportation conformity 
purposes;
    (ii) The publication date of EPA's approval of such a budget in the 
Federal Register; or
    (iii) The effective date of EPA's approval of such a budget in the 
Federal Register, if such approval is completed through direct final 
rulemaking.
    (3) In PM10 nonattainment areas the interim emissions 
tests must be satisfied as required by Sec. 93.119 for conformity 
determinations made:
    (i) If there is no approved motor vehicle emissions budget from an 
applicable implementation plan and no adequate motor vehicle emissions 
budget from a submitted control strategy implementation plan revision or 
maintenance plan; or
    (ii) If the submitted implementation plan revision is a 
demonstration of impracticability under CAA section 189(a)(1)(B)(ii) and 
does not demonstrate attainment.
    (h) NO2 nonattainment and maintenance areas. In addition to the 
criteria listed in Table 1 in paragraph (b) of this section that are 
required to be satisfied at all times, in NO2 nonattainment 
and maintenance areas conformity determinations must include a 
demonstration that the budget and/or

[[Page 571]]

interim emissions tests are satisfied as described in the following:
    (1) In NO2 nonattainment and maintenance areas the budget 
test must be satisfied as required by Sec. 93.118 for conformity 
determinations made on or after:
    (i) The effective date of EPA's finding that a motor vehicle 
emissions budget in a submitted control strategy implementation plan 
revision or maintenance plan is adequate for transportation conformity 
purposes;
    (ii) The publication date of EPA's approval of such a budget in the 
Federal Register; or
    (iii) The effective date of EPA's approval of such a budget in the 
Federal Register, if such approval is completed through direct final 
rulemaking.
    (2) In NO2 nonattainment areas the interim emissions 
tests must be satisfied as required by Sec. 93.119 for conformity 
determinations made when there is no approved motor vehicle emissions 
budget from an applicable implementation plan and no adequate motor 
vehicle emissions budget from a submitted control strategy 
implementation plan revision or maintenance plan.
    (i) PM 2.5 nonattainment and maintenance areas. In addition to the 
criteria listed in Table 1 in paragraph (b) of this section that are 
required to be satisfied at all times, in PM2.5 nonattainment 
and maintenance areas conformity determinations must include a 
demonstration that the budget and/or interim emissions tests are 
satisfied as described in the following:
    (1) FHWA/FTA projects in PM2.5 nonattainment or 
maintenance areas must satisfy the appropriate hot-spot test required by 
Sec. 93.116(a).
    (2) In PM2.5 nonattainment and maintenance areas the 
budget test must be satisfied as required by Sec. 93.118 for conformity 
determinations made on or after:
    (i) The effective date of EPA's finding that a motor vehicle 
emissions budget in a submitted control strategy implementation plan 
revision or maintenance plan is adequate for transportation conformity 
purposes;
    (ii) The publication date of EPA's approval of such a budget in the 
Federal Register; or
    (iii) The effective date of EPA's approval of such a budget in the 
Federal Register, if such approval is completed through direct final 
rulemaking.
    (3) In PM2.5 nonattainment areas the interim emissions 
tests must be satisfied as required by Sec. 93.119 for conformity 
determinations made if there is no approved motor vehicle emissions 
budget from an applicable implementation plan and no adequate motor 
vehicle emissions budget from a submitted control strategy 
implementation plan revision or maintenance plan.
    (j) Areas with limited maintenance plans. Notwithstanding the other 
paragraphs of this section, an area is not required to satisfy the 
regional emissions analysis for Sec. 93.118 and/or Sec. 93.119 for a 
given pollutant and NAAQS, if the area has an adequate or approved 
limited maintenance plan for such pollutant and NAAQS. A limited 
maintenance plan would have to demonstrate that it would be unreasonable 
to expect that such an area would experience enough motor vehicle 
emissions growth for a NAAQS violation to occur. A conformity 
determination that meets other applicable criteria in Table 1 of 
paragraph (b) of this section is still required, including the hot-spot 
requirements for projects in CO, PM10, and PM2.5 
areas.
    (k) Areas with insignificant motor vehicle emissions. 
Notwithstanding the other paragraphs in this section, an area is not 
required to satisfy a regional emissions analysis for Sec. 93.118 and/
or Sec. 93.119 for a given pollutant/precursor and NAAQS, if EPA finds 
through the adequacy or approval process that a SIP demonstrates that 
regional motor vehicle emissions are an insignificant contributor to the 
air quality problem for that pollutant/precursor and NAAQS. The SIP 
would have to demonstrate that it would be unreasonable to expect that 
such an area would experience enough motor vehicle emissions growth in 
that pollutant/precursor for a NAAQS violation to occur. Such a finding 
would be based on a number of factors, including the percentage of motor 
vehicle emissions in the context of the total SIP inventory, the current 
state of air quality as determined by monitoring data for that NAAQS, 
the absence of SIP motor

[[Page 572]]

vehicle control measures, and historical trends and future projections 
of the growth of motor vehicle emissions. A conformity determination 
that meets other applicable criteria in Table 1 of paragraph (b) of this 
section is still required, including regional emissions analyses for 
Sec. 93.118 and/or Sec. 93.119 for other pollutants/precursors and 
NAAQS that apply. Hot-spot requirements for projects in CO, 
PM10, and PM2.5 areas in Sec. 93.116 must also be 
satisfied, unless EPA determines that the SIP also demonstrates that 
projects will not create new localized violations and/or increase the 
severity or number of existing violations of such NAAQS. If EPA 
subsequently finds that motor vehicle emissions of a given pollutant/
precursor are significant, this paragraph would no longer apply for 
future conformity determinations for that pollutant/precursor and NAAQS.
    (l) Isolated rural nonattainment and maintenance areas. This 
paragraph applies to any nonattainment or maintenance area (or portion 
thereof) which does not have a metropolitan transportation plan or TIP 
and whose projects are not part of the emissions analysis of any MPO's 
metropolitan transportation plan or TIP. This paragraph does not apply 
to ``donut'' areas which are outside the metropolitan planning boundary 
and inside the nonattainment/maintenance area boundary.
    (1) FHWA/FTA projects in all isolated rural nonattainment and 
maintenance areas must satisfy the requirements of Sec. Sec. 93.110, 
93.111, 93.112, 93.113(d), 93.116, and 93.117. Until EPA approves the 
control strategy implementation plan or maintenance plan for a rural CO 
nonattainment or maintenance area, FHWA/FTA projects must also satisfy 
the requirements of Sec. 93.116(b) (``Localized CO, PM10, 
and PM2.5 violations (hot spots)'').
    (2) Isolated rural nonattainment and maintenance areas are subject 
to the budget and/or interim emissions tests as described in paragraphs 
(c) through (k) of this section, with the following modifications:
    (i) When the requirements of Sec. Sec. 93.106(d), 93.116, 93.118, 
and 93.119 apply to isolated rural nonattainment and maintenance areas, 
references to ``transportation plan'' or ``TIP'' should be taken to mean 
those projects in the statewide transportation plan or statewide TIP 
which are in the rural nonattainment or maintenance area. When the 
requirements of Sec. 93.106(d) apply to isolated rural nonattainment 
and maintenance areas, references to ``MPO'' should be taken to mean the 
state department of transportation.
    (ii) In isolated rural nonattainment and maintenance areas that are 
subject to Sec. 93.118, FHWA/FTA projects must be consistent with motor 
vehicle emissions budget(s) for the years in the timeframe of the 
attainment demonstration or maintenance plan. For years after the 
attainment year (if a maintenance plan has not been submitted) or after 
the last year of the maintenance plan, FHWA/FTA projects must satisfy 
one of the following requirements:
    (A) Sec. 93.118;
    (B) Sec. 93.119 (including regional emissions analysis for 
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 other air 
quality modeling technique used in the attainment demonstration or 
maintenance plan, the FHWA/FTA project, in combination with all other 
regionally significant projects expected in the area in the timeframe of 
the statewide transportation plan, must not cause or contribute to any 
new violation of any standard in any areas; increase the frequency or 
severity of any existing violation of any standard in any area; or delay 
timely attainment of any standard or any required interim emission 
reductions or other milestones in any area. Control measures assumed in 
the analysis must be enforceable.
    (iii) The choice of requirements in paragraph (l)(2)(ii) of this 
section and the methodology used to meet the requirements of paragraph 
(l)(2)(ii)(C) of this section must be determined through the interagency 
consultation process required in Sec. 93.105(c)(1)(vii) through which 
the relevant recipients of title 23 U.S.C. or Federal Transit Laws 
funds, the local air quality agency, the State air quality agency, and 
the State department of transportation

[[Page 573]]

should reach consensus about the option and methodology selected. EPA 
and DOT must be consulted through this process as well. In the event of 
unresolved disputes, conflicts may be escalated to the Governor 
consistent with the procedure in Sec. 93.105(d), which applies for any 
State air agency comments on a conformity determination.

[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40093, July 1, 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 conformity 
determination, with respect to all other applicable criteria in 
Sec. Sec. 93.111 through 93.119, must be based upon the most recent 
planning assumptions in force at the time the conformity analysis 
begins. The conformity determination must satisfy the requirements of 
paragraphs (b) through (f) of this section using the planning 
assumptions available at the time the conformity analysis begins as 
determined through the interagency consultation process required in 
Sec. 93.105(c)(1)(i). The ``time the conformity analysis begins'' for a 
transportation plan or TIP determination is the point at which the MPO 
or other designated agency begins to model the impact of the proposed 
transportation plan or TIP on travel and/or emissions. New data that 
becomes available after an analysis begins is required to be used in the 
conformity determination only if a significant delay in the analysis has 
occurred, as determined through interagency consultation.
    (b) Assumptions must be derived from the estimates of current and 
future population, employment, travel, and congestion most recently 
developed by the MPO or other agency authorized to make such estimates 
and approved by the MPO. The conformity determination must also be based 
on the latest assumptions about current and future background 
concentrations.
    (c) The conformity determination for each transportation plan and 
TIP must discuss how transit operating policies (including fares and 
service levels) and assumed transit ridership have changed since the 
previous conformity determination.
    (d) The conformity determination must include reasonable assumptions 
about transit service and increases in transit fares and road and bridge 
tolls over time.
    (e) The conformity determination must use the latest existing 
information regarding the effectiveness of the TCMs and other 
implementation plan measures which have already been implemented.
    (f) Key assumptions shall be specified and included in the draft 
documents and supporting materials used for the interagency and public 
consultation required by Sec. 93.105.

[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40077, July 1, 2004]



Sec. 93.111  Criteria and procedures: Latest emissions model.

    (a) The conformity determination must be based on the latest 
emission estimation model available. This criterion is satisfied if the 
most current version of the motor vehicle emissions model specified by 
EPA for use in the preparation or revision of implementation plans in 
that State or area is used for the conformity analysis. Where EMFAC is 
the motor vehicle emissions model used in preparing or revising the 
applicable implementation plan, new versions must be approved by EPA 
before they are used in the conformity analysis.
    (b) EPA will consult with DOT to establish a grace period following 
the specification of any new model.
    (1) The grace period will be no less than three months and no more 
than 24 months after notice of availability is published in the Federal 
Register.
    (2) The length of the grace period will depend on the degree of 
change in the model and the scope of re-planning likely to be necessary 
by MPOs in order to assure conformity. If the grace period will be 
longer than three months, EPA will announce the appropriate grace period 
in the Federal Register.
    (c) Transportation plan and TIP conformity analyses for which the 
emissions analysis was begun during the grace period or before the 
Federal Register notice of availability of the latest emission model may 
continue to use the previous version of the model.

[[Page 574]]

Conformity determinations for projects may also be based on the previous 
model if the analysis was begun during the grace period or before the 
Federal Register notice of availability, and if the final environmental 
document for the project is issued no more than three years after the 
issuance of the draft environmental document.



Sec. 93.112  Criteria and procedures: Consultation.

    Conformity must be determined according to the consultation 
procedures in this subpart and in the applicable implementation plan, 
and according to the public involvement procedures established in 
compliance with 23 CFR part 450. Until the implementation plan revision 
required by Sec. 51.390 of this chapter is fully approved by EPA, the 
conformity determination must be made according to Sec. 93.105 (a)(2) 
and (e) and the requirements of 23 CFR part 450.



Sec. 93.113  Criteria and procedures: Timely implementation of TCMs.

    (a) The transportation plan, TIP, or any FHWA/FTA project which is 
not from a conforming plan and TIP must provide for the timely 
implementation of TCMs from the applicable implementation plan.
    (b) For transportation plans, this criterion is satisfied if the 
following two conditions are met:
    (1) The transportation plan, in describing the envisioned future 
transportation system, provides for the timely completion or 
implementation of all TCMs in the applicable implementation plan which 
are eligible for funding under title 23 U.S.C. or the Federal Transit 
Laws, consistent with schedules included in the applicable 
implementation plan.
    (2) Nothing in the transportation plan interferes with the 
implementation of any TCM in the applicable implementation plan.
    (c) For TIPs, this criterion is satisfied if the following 
conditions are met:
    (1) An examination of the specific steps and funding source(s) 
needed to fully implement each TCM indicates that TCMs which are 
eligible for funding under title 23 U.S.C. or the Federal Transit Laws 
are on or ahead of the schedule established in the applicable 
implementation plan, or, if such TCMs are behind the schedule 
established in the applicable implementation plan, the MPO and DOT have 
determined that past obstacles to implementation of the TCMs have been 
identified and have been or are being overcome, and that all State and 
local agencies with influence over approvals or funding for TCMs are 
giving maximum priority to approval or funding of TCMs over other 
projects within their control, including projects in locations outside 
the nonattainment or maintenance area.
    (2) If TCMs in the applicable implementation plan have previously 
been programmed for Federal funding but the funds have not been 
obligated and the TCMs are behind the schedule in the implementation 
plan, then the TIP cannot be found to conform if the funds intended for 
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 reallocated to 
projects in the TIP other than projects which are eligible for Federal 
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 of any 
TCM in the applicable implementation plan.
    (d) For FHWA/FTA projects which are not from a conforming 
transportation plan and TIP, this criterion is satisfied if the project 
does not interfere with the implementation of any TCM in the applicable 
implementation plan.



Sec. 93.114  Criteria and procedures: Currently conforming transportation plan 

and TIP.

    There must be a currently conforming transportation plan and 
currently conforming TIP at the time of project approval, or a project 
must 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 an 
area at any time; conformity determinations of a previous transportation 
plan or TIP expire once the current plan or TIP is found to conform by 
DOT. The

[[Page 575]]

conformity determination on a transportation plan or TIP will also lapse 
if conformity is not determined according to the frequency requirements 
specified in Sec. 93.104.
    (b) This criterion is not required to be satisfied at the time of 
project approval for a TCM specifically included in the applicable 
implementation plan, provided that all other relevant criteria of this 
subpart 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 and 

TIP.

    (a) The project must come from a conforming plan and program. If 
this criterion is not satisfied, the project must satisfy all criteria 
in Table 1 of Sec. 93.109(b) for a project not from a conforming 
transportation plan and TIP. A project is considered to be from a 
conforming transportation plan if it meets the requirements of paragraph 
(b) of this section and from a conforming program if it meets the 
requirements of paragraph (c) of this section. Special provisions for 
TCMs in an applicable implementation plan are provided in paragraph (d) 
of this section.
    (b) A project is considered to be from a conforming transportation 
plan if one of the following conditions applies:
    (1) For projects which are required to be identified in the 
transportation plan in order to satisfy Sec. 93.106 (``Content of 
transportation plans''), the project is specifically included in the 
conforming transportation plan and the project's design concept and 
scope have not changed significantly from those which were described in 
the transportation plan, or in a manner which would significantly impact 
use of the facility; or
    (2) For projects which are not required to be specifically 
identified in the transportation plan, the project is identified in the 
conforming transportation plan, or is consistent with the policies and 
purpose of the transportation plan and will not interfere with other 
projects specifically included in the transportation plan.
    (c) A project is considered to be from a conforming program if the 
following conditions are met:
    (1) The project is included in the conforming TIP and the design 
concept and scope of the project were adequate at the time of the TIP 
conformity determination to determine its contribution to the TIP's 
regional emissions, and the project design concept and scope have not 
changed significantly from those which were described in the TIP; and
    (2) If the TIP describes a project design concept and scope which 
includes project-level emissions mitigation or control measures, written 
commitments to implement such measures must be obtained from the project 
sponsor and/or operator as required by Sec. 93.125(a) in order for the 
project to be considered from a conforming program. Any change in these 
mitigation or control measures that would significantly reduce their 
effectiveness constitutes a change in the design concept and scope of 
the project.
    (d) TCMs. This criterion is not required to be satisfied for TCMs 
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 of Sec. 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], and 

PM[bdi2].[bdi5] violations (hot-spots).

    (a) This paragraph applies at all times. The FHWA/FTA project must 
not cause or contribute to any new localized CO, PM10, and/or 
PM2.5 violations or increase the frequency or severity of any 
existing CO, PM10, and/or PM2.5 violations in CO, 
PM10, and PM2.5 nonattainment and maintenance 
areas. This criterion is satisfied without a hot-spot analysis in 
PM10 and PM2.5 nonattainment and maintenance areas 
for FHWA/FTA projects that are not identified in Sec. 93.123(b)(1). 
This criterion is satisfied for all other FHWA/FTA projects in CO, 
PM10 and PM2.5 nonattainment and maintenance areas 
if it is demonstrated that during the time frame of the transportation 
plan no new local violations will be created and the severity or number 
of existing

[[Page 576]]

violations will not be increased as a result of the project. The 
demonstration must be performed according to the consultation 
requirements of Sec. 93.105(c)(1)(i) and the methodology requirements 
of Sec. 93.123.
    (b) This paragraph applies for CO nonattainment areas as described 
in Sec. 93.109(f)(1). Each FHWA/FTA project must eliminate or reduce 
the severity and number of localized CO violations in the area 
substantially affected by the project (in CO nonattainment areas). This 
criterion is satisfied with respect to existing localized CO violations 
if it is demonstrated that during the time frame of the transportation 
plan (or regional emissions analysis) existing localized CO violations 
will be eliminated or reduced in severity and number as a result of the 
project. The demonstration must be performed according 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]



Sec. 93.117  Criteria and procedures: Compliance with PM[bdi1][bdi0] and 

PM[bdi2].[bdi5] control measures.

    The FHWA/FTA project must comply with any PM10 and 
PM2.5 control measures in the applicable implementation plan. 
This criterion is satisfied if the project-level conformity 
determination contains a written commitment from the project sponsor to 
include in the final plans, specifications, and estimates for the 
project those control measures (for the purpose of limiting 
PM10 and PM2.5 emissions from the construction 
activities and/or normal use and operation associated with the project) 
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 a conforming 
transportation plan and TIP must be consistent with the motor vehicle 
emissions budget(s) in the applicable implementation plan (or 
implementation plan submission). This criterion applies as described in 
Sec. 93.109(c) through (l). This criterion is satisfied if it is 
demonstrated that emissions of the pollutants or pollutant precursors 
described in paragraph (c) of this section are less than or equal to the 
motor vehicle emissions budget(s) established in the applicable 
implementation plan or implementation plan submission.
    (b) Consistency with the motor vehicle emissions budget(s) must be 
demonstrated for each year for which the applicable (and/or submitted) 
implementation plan specifically establishes motor vehicle emissions 
budget(s), for the attainment year (if it is within the timeframe of the 
transportation plan and conformity determination), for the last year of 
the timeframe of the conformity determination (as described under Sec. 
93.106(d)), and for any intermediate years within the timeframe of the 
conformity determination as necessary so that the years for which 
consistency is demonstrated are no more than ten years apart, as 
follows:
    (1) Until a maintenance plan is submitted:
    (i) Emissions in each year (such as milestone years and the 
attainment year) for which the control strategy implementation plan 
revision establishes motor vehicle emissions budget(s) must be less than 
or equal to that year's motor vehicle emissions budget(s); and
    (ii) Emissions in years for which no motor vehicle emissions 
budget(s) are specifically established must be less than or equal to the 
motor vehicle emissions budget(s) established for the most recent prior 
year. For example, emissions in years after the attainment year for 
which the implementation plan does not establish a budget must be less 
than or equal to the motor vehicle emissions budget(s) for the 
attainment year.
    (2) When a maintenance plan has been submitted:
    (i) Emissions must be less than or equal to the motor vehicle 
emissions budget(s) established for the last year of the maintenance 
plan, and for any other years for which the maintenance plan establishes 
motor vehicle emissions budgets. If the maintenance plan does not 
establish motor vehicle emissions budgets for any years other than the 
last year of the maintenance plan,

[[Page 577]]

the demonstration of consistency with the motor vehicle emissions 
budget(s) must be accompanied by a qualitative finding that there are no 
factors which would cause or contribute to a new violation or exacerbate 
an existing violation in the years before the last year of the 
maintenance plan. The interagency consultation process required by Sec. 
93.105 shall determine what must be considered in order to make such a 
finding;
    (ii) For years after the last year of the maintenance plan, 
emissions must be less than or equal to the maintenance plan's motor 
vehicle emissions budget(s) for the last year of the maintenance plan;
    (iii) If an approved and/or submitted control strategy 
implementation plan has established motor vehicle emissions budgets for 
years in the time frame of the transportation plan, emissions in these 
years must be less than or equal to the control strategy implementation 
plan's motor vehicle emissions budget(s) for these years; and
    (iv) For any analysis years before the last year of the maintenance 
plan, emissions must be less than or equal to the motor vehicle 
emissions budget(s) established for the most recent prior year.
    (c) Consistency with the motor vehicle emissions budget(s) must be 
demonstrated for each pollutant or pollutant precursor in Sec. 
93.102(b) for which the area is in nonattainment or maintenance and for 
which the applicable implementation plan (or implementation plan 
submission) establishes a motor vehicle emissions budget.
    (d) Consistency with the motor vehicle emissions budget(s) must be 
demonstrated by including emissions from the entire transportation 
system, including all regionally significant projects contained in the 
transportation plan and all other regionally significant highway and 
transit projects expected in the nonattainment or maintenance area in 
the timeframe of the transportation plan.
    (1) Consistency with the motor vehicle emissions budget(s) must be 
demonstrated with a regional emissions analysis that meets the 
requirements of Sec. Sec. 93.122 and 93.105(c)(1)(i).
    (2) The regional emissions analysis may be performed for any years 
in the timeframe of the conformity determination (as described under 
Sec. 93.106(d)) provided they are not more than ten years apart and 
provided the analysis is performed for the attainment year (if it is in 
the timeframe of the transportation plan and conformity determination) 
and the last year of the timeframe of the conformity determination. 
Emissions in years for which consistency with motor vehicle emissions 
budgets must be demonstrated, as required in paragraph (b) of this 
section, may be determined by interpolating between the years for which 
the regional emissions analysis is performed.
    (3) When the timeframe of the conformity determination is shortened 
under Sec. 93.106(d)(2), the conformity determination must be 
accompanied by a regional emissions analysis (for informational purposes 
only) for the last year of the transportation plan, and for any year 
shown to exceed motor vehicle emissions budgets in a prior regional 
emissions analysis (if such a year extends beyond the timeframe of the 
conformity determination).
    (e) Motor vehicle emissions budgets in submitted control strategy 
implementation plan revisions and submitted maintenance plans. (1) 
Consistency with the motor vehicle emissions budgets in submitted 
control strategy implementation plan revisions or maintenance plans must 
be demonstrated if EPA has declared the motor vehicle emissions 
budget(s) adequate for transportation conformity purposes, and the 
adequacy finding is effective. However, motor vehicle emissions budgets 
in submitted implementation plans do not supersede the motor vehicle 
emissions budgets in approved implementation plans for the same Clean 
Air Act requirement and the period of years addressed by the previously 
approved implementation plan, unless EPA specifies otherwise in its 
approval of a SIP.
    (2) If EPA has not declared an implementation plan submission's 
motor vehicle emissions budget(s) adequate for transportation conformity 
purposes, the budget(s) shall not be used to satisfy the requirements of 
this section.

[[Page 578]]

Consistency with the previously established motor vehicle emissions 
budget(s) must be demonstrated. If there are no previously approved 
implementation plans or implementation plan submissions with adequate 
motor vehicle emissions budgets, the interim emissions tests required by 
Sec. 93.119 must be satisfied.
    (3) If EPA declares an implementation plan submission's motor 
vehicle emissions budget(s) inadequate for transportation conformity 
purposes after EPA had previously found the budget(s) adequate, and 
conformity of a transportation plan or TIP has already been determined 
by DOT using the budget(s), the conformity determination will remain 
valid. Projects included in that transportation plan or TIP could still 
satisfy Sec. Sec. 93.114 and 93.115, which require a currently 
conforming transportation plan and TIP to be in place at the time of a 
project's conformity determination and that projects come from a 
conforming transportation plan and TIP.
    (4) EPA will not find a motor vehicle emissions budget in a 
submitted control strategy implementation plan revision or maintenance 
plan to be adequate for transportation conformity purposes unless the 
following minimum criteria are satisfied:
    (i) The submitted control strategy implementation plan revision or 
maintenance 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 or maintenance 
plan was submitted to EPA, consultation among federal, State, and local 
agencies occurred; full implementation plan documentation was provided 
to EPA; and EPA's stated concerns, if any, were addressed;
    (iii) The motor vehicle emissions budget(s) is clearly identified 
and precisely quantified;
    (iv) The motor vehicle emissions budget(s), when considered together 
with all other emissions sources, is consistent with applicable 
requirements for reasonable further progress, attainment, or maintenance 
(whichever is relevant to the given implementation plan submission);
    (v) The motor vehicle emissions budget(s) is consistent with and 
clearly related to the emissions inventory and the control measures in 
the submitted control strategy implementation plan revision or 
maintenance plan; and
    (vi) Revisions to previously submitted control strategy 
implementation plans or maintenance plans explain and document any 
changes to previously submitted budgets and control measures; impacts on 
point and area source emissions; any changes to established safety 
margins (see Sec. 93.101 for definition); and reasons for the changes 
(including the basis for any changes related to emission factors or 
estimates of vehicle miles traveled).
    (5) Before determining the adequacy of a submitted motor vehicle 
emissions budget, EPA will review the State's compilation of public 
comments and response to comments that are required to be submitted with 
any implementation plan. EPA will document its consideration of such 
comments and responses in a letter to the State indicating the adequacy 
of the submitted motor vehicle emissions budget.
    (6) When the motor vehicle emissions budget(s) used to satisfy the 
requirements of this section are established by an implementation plan 
submittal that has not yet been approved or disapproved by EPA, the MPO 
and DOT's conformity determinations will be deemed to be a statement 
that the MPO and DOT are not aware of any information that would 
indicate that emissions consistent with the motor vehicle emissions 
budget will cause or contribute to any new violation of any standard; 
increase the frequency or severity of any existing violation of any 
standard; or delay timely attainment of any standard or any required 
interim emission reductions or other milestones.
    (f) Adequacy review process for implementation plan submissions. EPA 
will use the procedure listed in paragraph (f)(1) or (f)(2) of this 
section to review the adequacy of an implementation plan submission:
    (1) When EPA reviews the adequacy of an implementation plan 
submission prior to EPA's final action on the implementation plan,

[[Page 579]]

    (i) EPA will notify the public through EPA's website when EPA 
receives an implementation plan submission that will be reviewed for 
adequacy.
    (ii) The public will have a minimum of 30 days to comment on the 
adequacy of the implementation plan submission. If the complete 
implementation plan is not accessible electronically through the 
internet and a copy is requested within 15 days of the date of the 
website notice, the comment period will be extended for 30 days from the 
date that a copy of the implementation plan is mailed.
    (iii) After the public comment period closes, EPA will inform the 
State in writing whether EPA has found the submission adequate or 
inadequate for use in transportation conformity, including response to 
any comments submitted directly and review of comments submitted through 
the State process, or EPA will include the determination of adequacy or 
inadequacy in a proposed or final action approving or disapproving the 
implementation plan under paragraph (f)(2)(iii) of this section.
    (iv) EPA will publish a Federal Register notice to inform the public 
of EPA's finding. If EPA finds the submission adequate, the effective 
date of this finding will be 15 days from the date the notice is 
published as established in the Federal Register notice, unless EPA is 
taking a final approval action on the SIP as described in paragraph 
(f)(2)(iii) of this section.
    (v) EPA will announce whether the implementation plan submission is 
adequate or inadequate for use in transportation conformity on EPA's 
website. The website will also include EPA's response to comments if any 
comments were received during the public comment period.
    (vi) If after EPA has found a submission adequate, EPA has cause to 
reconsider this finding, EPA will repeat actions described in paragraphs 
(f)(1)(i) through (v) or (f)(2) of this section unless EPA determines 
that there is no need for additional public comment given the 
deficiencies of the implementation plan submission. In all cases where 
EPA reverses its previous finding to a finding of inadequacy under 
paragraph (f)(1) of this section, such a finding will become effective 
immediately upon the date of EPA's letter to the State.
    (vii) If after EPA has found a submission inadequate, EPA has cause 
to reconsider the adequacy of that budget, EPA will repeat actions 
described in paragraphs (f)(1)(i) through (v) or (f)(2) of this section.
    (2) When EPA reviews the adequacy of an implementation plan 
submission simultaneously with EPA's approval or disapproval of the 
implementation plan,
    (i) EPA's Federal Register notice of proposed or direct final 
rulemaking will serve to notify the public that EPA will be reviewing 
the implementation plan submission for adequacy.
    (ii) The publication of the notice of proposed rulemaking will start 
a public comment period of at least 30 days.
    (iii) EPA will indicate whether the implementation plan submission 
is adequate and thus can be used for conformity either in EPA's final 
rulemaking or through the process described in paragraphs (f)(1)(iii) 
through (v) of this section. If EPA makes an adequacy finding through a 
final rulemaking that approves the implementation plan submission, such 
a finding will become effective upon the publication date of EPA's 
approval in the Federal Register, or upon the effective date of EPA's 
approval if such action is conducted through direct final rulemaking. 
EPA will respond to comments received directly and review comments 
submitted through the State process and include the response to comments 
in the applicable docket.

[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40078, July 1, 2004; 73 
FR 4440, Jan. 24, 2008]



Sec. 93.119  Criteria and procedures: Interim emissions in areas without motor 

vehicle emissions budgets.

    (a) The transportation plan, TIP, and project not from a conforming 
transportation plan and TIP must satisfy the interim emissions 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

[[Page 580]]

and TIP) on motor vehicle emissions from the entire transportation 
system.
    (b) Ozone areas. The requirements of this paragraph apply to all 1-
hour ozone and 8-hour ozone NAAQS areas, except for certain requirements 
as indicated. This criterion may be met:
    (1) In moderate and above ozone nonattainment areas that are subject 
to the reasonable further progress requirements of CAA section 182(b)(1) 
if a regional emissions analysis that satisfies the requirements of 
Sec. 93.122 and paragraphs (g) through (j) of this section demonstrates 
that for each analysis year and for each of the pollutants described in 
paragraph (f) of this section:
    (i) The emissions predicted in the ``Action'' scenario are less than 
the emissions predicted in the ``Baseline'' scenario, and this can be 
reasonably expected to be true in the periods 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-hour 
ozone NAAQS as described in Sec. 93.109(c); or
    (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 other ozone 
nonattainment areas that are not subject to the reasonable further 
progress requirements of CAA section 182(b)(1) if a regional emissions 
analysis that satisfies the requirements of Sec. 93.122 and paragraphs 
(g) through (j) of this section demonstrates that for each analysis year 
and for each of the pollutants described in paragraph (f) of this 
section:
    (i) The emissions predicted in the ``Action'' scenario are not 
greater than the emissions predicted in the ``Baseline'' scenario, and 
this can be reasonably expected to 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 as described 
in Sec. 93.109(c); or
    (B) 2002 emissions, in areas for the 8-hour ozone NAAQS as described 
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 and 
serious CO nonattainment areas that are subject to CAA section 187(a)(7) 
if a regional emissions analysis that satisfies the requirements of 
Sec. 93.122 and paragraphs (g) through (j) of this section demonstrates 
that for each analysis year and for each of the pollutants described in 
paragraph (f) of this section:
    (i) The emissions predicted in the ``Action'' scenario are less than 
the emissions predicted in the ``Baseline'' scenario, and this can be 
reasonably expected to be true in the periods 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 not 
classified CO nonattainment areas if a regional emissions analysis that 
satisfies the requirements of Sec. 93.122 and paragraphs (g) through 
(j) of this section demonstrates that for each analysis year and for 
each of the pollutants described in paragraph (f) of this section:
    (i) The emissions predicted in the ``Action'' scenario are not 
greater than the emissions predicted in the ``Baseline'' scenario, and 
this can be reasonably expected to 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 NO2 nonattainment areas if a regional emissions analysis 
that satisfies the requirements of Sec. 93.122 and paragraphs (g) 
through (j) of this section demonstrates that for each analysis 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'' scenario are not 
greater than the emissions predicted in the ``Baseline'' scenario, and 
this can be reasonably expected to be true in the periods between the 
analysis years; or

[[Page 581]]

    (2) The emissions predicted in the ``Action'' scenario are not 
greater than baseline emissions. Baseline emissions are those estimated 
to have occurred during calendar year 1990, unless the conformity 
implementation plan revision required by Sec. 51.390 of this chapter 
defines the baseline emissions for a PM10 area to be those 
occurring in a different calendar year for which a baseline emissions 
inventory was developed for the purpose of developing a control strategy 
implementation plan.
    (e) PM2.5 areas. This criterion may be met in PM2.5 
nonattainment areas if a regional emissions analysis that satisfies the 
requirements of Sec. 93.122 and paragraphs (g) through (j) of this 
section demonstrates that for each analysis 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'' scenario are not 
greater than the emissions predicted in the ``Baseline'' scenario, and 
this can be reasonably expected to be true in the periods between the 
analysis years; or
    (2) The emissions predicted in the ``Action'' scenario are not 
greater than 2002 emissions.
    (f) Pollutants. The regional emissions analysis must be performed 
for the following pollutants:
    (1) VOC in ozone areas;
    (2) NOX in ozone areas, unless the EPA Administrator 
determines that additional reductions of NOX would not 
contribute to attainment;
    (3) CO in CO areas;
    (4) PM10 in PM10 areas;
    (5) VOC and/or NOX in PM10 areas if the EPA 
Regional Administrator or the director of the State air agency has made 
a finding that one or both of such precursor emissions from within the 
area are a significant contributor to the PM10 nonattainment 
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 the EPA 
Regional Administrator or the director of the State air agency has made 
a finding that emissions from reentrained road dust within the area are 
a significant contributor to the PM2.5 nonattainment problem 
and has so notified the MPO and DOT;
    (9) NOX in PM2.5 areas, unless the EPA 
Regional Administrator and the director of the State air agency have 
made a finding that emissions of NOX from within the area are 
not a significant contributor to the PM2.5 nonattainment 
problem and has so notified the MPO and DOT; and
    (10) VOC, SO2 and/or ammonia in PM2.5 areas if 
the EPA Regional Administrator or the director of the State air agency 
has made a finding that any of such precursor emissions from within the 
area are a significant contributor to the PM2.5 nonattainment 
problem and has so notified the MPO and DOT.
    (g) Analysis years. (1) The regional emissions analysis must be 
performed for analysis years that are no more than ten years apart. The 
first analysis year must be no more than five years beyond the year in 
which the conformity determination is being made. The last year of the 
timeframe of the conformity determination (as described under 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 satisfies the 
requirements of Sec. 93.122 and paragraphs (g) through (j) of this 
section would not be required for analysis years in which the 
transportation projects and planning assumptions in the ``Action'' and 
``Baseline'' scenarios are exactly the same. In such a case, paragraph 
(a) of this section can be satisfied by documenting that the 
transportation projects and planning assumptions in both scenarios are 
exactly the same, and consequently, the emissions predicted in the 
``Action'' scenario are not greater than the emissions predicted in the 
``Baseline'' scenario for such analysis years.
    (3) When the timeframe of the conformity determination is shortened 
under Sec. 93.106(d)(2), the conformity determination must be 
accompanied by a regional emissions analysis (for informational purposes 
only) for the last year of the transportation plan.

[[Page 582]]

    (h) ``Baseline'' scenario. The regional emissions analysis required 
by paragraphs (b) through (e) of this section must estimate the 
emissions that would result from the ``Baseline'' scenario in each 
analysis year. The ``Baseline'' scenario must be defined for each of the 
analysis years. The ``Baseline'' scenario is the future transportation 
system that will result from current programs, including the following 
(except that exempt projects listed in Sec. 93.126 and projects exempt 
from regional emissions analysis as listed in Sec. 93.127 need not be 
explicitly considered):
    (1) All in-place regionally significant highway and transit 
facilities, services and activities;
    (2) All ongoing travel demand management or transportation system 
management activities; and
    (3) Completion of all regionally significant projects, regardless of 
funding source, which are currently under construction or are undergoing 
right-of-way acquisition (except for hardship acquisition and protective 
buying); come from the first year of the previously conforming 
transportation plan and/or TIP; or have completed the NEPA process.
    (i) ``Action'' scenario. The regional emissions analysis required by 
paragraphs (b) and (c) of this section must estimate the emissions that 
would result from the ``Action'' scenario in each analysis year. The 
``Action'' scenario must be defined for each of the analysis years. The 
``Action'' scenario is the transportation system that would result from 
the implementation of the proposed action (transportation plan, TIP, or 
project not from a conforming transportation plan and TIP) and all other 
expected regionally significant projects in the nonattainment area. The 
``Action'' scenario must include the following (except that exempt 
projects listed in Sec. 93.126 and projects exempt from regional 
emissions analysis as listed in Sec. 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) specifically identified 
in the proposed transportation plan which will be operational or in 
effect in the analysis year, except that regulatory TCMs may not be 
assumed to begin at a future time unless the regulation is already 
adopted by the enforcing jurisdiction or the TCM is identified in the 
applicable implementation plan;
    (3) All travel demand management programs and transportation system 
management activities known to the MPO, but not included in the 
applicable implementation plan or utilizing any Federal funding or 
approval, which have been fully adopted and/or funded by the enforcing 
jurisdiction or sponsoring agency since the last conformity 
determination;
    (4) The incremental effects of any travel demand management programs 
and transportation system management activities known to the MPO, but 
not included in the applicable implementation plan or utilizing any 
Federal funding or approval, which were adopted and/or funded prior to 
the date of the last conformity determination, but which have been 
modified since then to be more stringent or effective;
    (5) Completion of all expected regionally significant highway and 
transit projects which are not from a conforming transportation plan and 
TIP; and
    (6) Completion of all expected regionally significant non-FHWA/FTA 
highway and transit projects that have clear funding sources and 
commitments leading toward their implementation and completion by the 
analysis year.
    (j) Projects not from a conforming transportation plan and TIP. For 
the regional emissions analysis required by paragraphs (b) through (e) 
of this section, if the project which is not from a conforming 
transportation plan and TIP is a modification of a project currently in 
the plan or TIP, the `Baseline' scenario must include the project with 
its original design concept and scope, and the `Action' scenario must 
include the project with its new design concept and scope.

[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40079, July 1, 2004; 70 
FR 24291, May 6, 2005; 73 FR 4441, Jan. 24, 2008]

[[Page 583]]



Sec. 93.120  Consequences of control strategy implementation plan failures.

    (a) Disapprovals. (1) If EPA disapproves any submitted control 
strategy implementation plan revision (with or without a protective 
finding), the conformity status of the transportation plan and TIP shall 
lapse on the date that highway sanctions as a result of the disapproval 
are imposed on the nonattainment area under section 179(b)(1) of the 
CAA. No new transportation plan, TIP, or project may be found to conform 
until another control strategy implementation plan revision fulfilling 
the same CAA requirements is submitted and conformity to this submission 
is determined.
    (2) If EPA disapproves a submitted control strategy implementation 
plan revision without making a protective finding, only projects in the 
first four years of the currently conforming transportation plan and TIP 
or that meet the requirements of Sec. 93.104(f) during the 12-month 
lapse grace period may be found to conform. This means that beginning on 
the effective date of a disapproval without a protective finding, no 
transportation plan, TIP, or project not in the first four years of the 
currently conforming transportation plan and TIP or that meets the 
requirements of Sec. 93.104(f) during the 12-month lapse grace period 
may be found to conform until another control strategy implementation 
plan revision fulfilling the same CAA requirements is submitted, EPA 
finds its motor vehicle emissions budget(s) adequate pursuant to Sec. 
93.118 or approves the submission, and conformity to the implementation 
plan revision is determined.
    (3) In disapproving a control strategy implementation plan revision, 
EPA would give a protective finding where a submitted plan contains 
adopted control measures or written commitments to adopt enforceable 
control measures that fully satisfy the emissions reductions 
requirements relevant to the statutory provision for which the 
implementation plan revision was submitted, such as reasonable further 
progress or attainment.
    (b) Failure to submit and incompleteness. In areas where EPA 
notifies the State, MPO, and DOT of the State's failure to submit a 
control strategy implementation plan or submission of an incomplete 
control strategy implementation plan revision (either of which initiates 
the sanction process under CAA sections 179 or 110(m)), the conformity 
status of the transportation plan and TIP shall lapse on the date that 
highway sanctions are imposed on the nonattainment area for such failure 
under section 179(b)(1) of the CAA, unless the failure has been remedied 
and acknowledged by a letter from the EPA Regional Administrator.
    (c) Federal implementation plans. If EPA promulgates a Federal 
implementation plan that contains motor vehicle emissions budget(s) as a 
result of a State failure, the conformity lapse imposed by this section 
because of that State failure is removed.

[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40080, July 1, 2004; 73 
FR 4441, Jan. 24, 2008]



Sec. 93.121  Requirements for adoption or approval of projects by other 

recipients of funds designated under title 23 U.S.C. or the Federal Transit 

Laws.

    (a) Except as provided in paragraph (b) of this section, no 
recipient of Federal funds designated under title 23 U.S.C. or the 
Federal Transit Laws shall adopt or approve a regionally significant 
highway or transit project, regardless of funding source, unless the 
recipient finds that the requirements of one of the following are met:
    (1) The project comes from the currently conforming transportation 
plan and TIP (or meets the requirements of Sec. 93.104(f) during the 
12-month lapse grace period), and the project's design concept and scope 
have not changed significantly from those that were included in the 
regional emissions analysis for that transportation plan and TIP;
    (2) The project is included in the regional emissions analysis for 
the currently conforming transportation plan and TIP conformity 
determination (or meets the requirements of Sec. 93.104(f) during the 
12-month lapse grace period), even if the project is not strictly 
included in the transportation plan or TIP for the purpose of MPO 
project selection or endorsement, and the project's design concept and 
scope have

[[Page 584]]

not changed significantly from those that were included in the regional 
emissions analysis; or
    (3) A new regional emissions analysis including the project and the 
currently conforming transportation plan and TIP demonstrates that the 
transportation plan and TIP would still conform if the project were 
implemented (consistent with the requirements of Sec. Sec. 93.118 and/
or 93.119 for a project not from a conforming transportation plan and 
TIP).
    (b) In isolated rural nonattainment and maintenance areas subject to 
Sec. 93.109(l), no recipient of Federal funds designated under title 23 
U.S.C. or the Federal Transit Laws shall adopt or approve a regionally 
significant highway or transit project, regardless of funding source, 
unless the recipient finds that the requirements of one of the following 
are met:
    (1) The project was included in the regional emissions analysis 
supporting the most recent conformity determination that reflects the 
portion of the statewide transportation plan and statewide TIP which are 
in the nonattainment or maintenance area, and the project's design 
concept and scope has not changed significantly; or
    (2) A new regional emissions analysis including the project and all 
other regionally significant projects expected in the nonattainment or 
maintenance area demonstrates that those projects in the statewide 
transportation plan and statewide TIP which are in the nonattainment or 
maintenance area would still conform if the project were implemented 
(consistent with the requirements of Sec. Sec. 93.118 and/or 93.119 for 
projects not from a conforming transportation plan and TIP).
    (c) Notwithstanding paragraphs (a) and (b) of this section, in 
nonattainment and maintenance areas subject to Sec. 93.109(j) or (k) 
for a given pollutant/precursor and NAAQS, no recipient of Federal funds 
designated under title 23 U.S.C. or the Federal Transit Laws shall adopt 
or approve a regionally significant highway or transit project, 
regardless of funding source, unless the recipient finds that the 
requirements of one of the following are met for that pollutant/
precursor and NAAQS:
    (1) The project was included in the most recent conformity 
determination for the transportation plan and TIP and the project's 
design concept and scope has not changed significantly; or
    (2) The project was included in the most recent conformity 
determination that reflects the portion of the statewide transportation 
plan and statewide TIP which are in the nonattainment or maintenance 
area, and the project's design concept and scope has not changed 
significantly.

[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40080, July 1, 2004; 73 
FR 4441, Jan. 24, 2008]



Sec. 93.122  Procedures for determining regional transportation-related 

emissions.

    (a) General requirements. (1) The regional emissions analysis 
required by Sec. Sec. 93.118 and 93.119 for the transportation plan, 
TIP, or project not from a conforming plan and TIP must include all 
regionally significant projects expected in the nonattainment or 
maintenance area. The analysis shall include FHWA/FTA projects proposed 
in the transportation plan and TIP and all other regionally significant 
projects which are disclosed to the MPO as required by Sec. 93.105. 
Projects which are not regionally significant are not required to be 
explicitly modeled, but vehicle miles traveled (VMT) from such projects 
must be estimated in accordance with reasonable professional practice. 
The effects of TCMs and similar projects that are not regionally 
significant may also be estimated in accordance with reasonable 
professional practice.
    (2) The emissions analysis may not include for emissions reduction 
credit any TCMs or other measures in the applicable implementation plan 
which have been delayed beyond the scheduled date(s) until such time as 
their implementation has been assured. If the measure has been partially 
implemented and it can be demonstrated that it is providing quantifiable 
emission reduction benefits, the emissions analysis may include that 
emissions reduction credit.
    (3) Emissions reduction credit from projects, programs, or 
activities which require a regulatory action in order to

[[Page 585]]

be implemented may not be included in the emissions analysis unless:
    (i) The regulatory action is already adopted by the enforcing 
jurisdiction;
    (ii) The project, program, or activity is included in the applicable 
implementation plan;
    (iii) The control strategy implementation plan submission or 
maintenance plan submission that establishes the motor vehicle emissions 
budget(s) for the purposes of Sec. 93.118 contains a written commitment 
to the project, program, or activity by the agency 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 Federal 
responsibility, such as vehicle tailpipe standards), or the Clean Air 
Act requires the program without need for individual State action and 
without 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 not 
included in the transportation plan and TIP and that do not require a 
regulatory action in order to be implemented may not be included in the 
emissions analysis unless the conformity determination includes written 
commitments to implementation from the appropriate entities.
    (i) Persons or entities voluntarily committing to control measures 
must comply with the obligations of such commitments.
    (ii) The conformity implementation plan revision required in Sec. 
51.390 of this chapter must provide that written commitments to control 
measures that are not included in the transportation plan and TIP must 
be obtained prior to a conformity determination and that such 
commitments must be fulfilled.
    (5) A regional emissions analysis for the purpose of satisfying the 
requirements of Sec. 93.119 must make the same assumptions in both the 
``Baseline'' and ``Action'' scenarios regarding control measures that 
are external to the transportation system itself, such as vehicle 
tailpipe or evaporative emission standards, limits on gasoline 
volatility, vehicle inspection and maintenance programs, and oxygenated 
or reformulated gasoline or diesel fuel.
    (6) The ambient temperatures used for the regional emissions 
analysis shall be consistent with those used to establish the emissions 
budget in the applicable implementation plan. All other factors, for 
example the fraction of travel in a hot stabilized engine mode, must be 
consistent with the applicable implementation plan, unless modified 
after interagency consultation according to Sec. 93.105(c)(1)(i) to 
incorporate additional or more geographically specific information or 
represent a logically estimated trend in such factors beyond the period 
considered in the applicable implementation plan.
    (7) Reasonable methods shall be used to estimate nonattainment or 
maintenance area VMT on off-network roadways within the urban 
transportation planning area, and on roadways outside the urban 
transportation planning area.
    (b) Regional emissions analysis in serious, severe, and extreme 
ozone nonattainment areas and serious CO nonattainment areas must meet 
the requirements of paragraphs (b) (1) through (3) of this section if 
their metropolitan planning area contains an urbanized area population 
over 200,000.
    (1) By January 1, 1997, estimates of regional transportation-related 
emissions used to support conformity determinations must be made at a 
minimum using network-based travel models according to procedures and 
methods that are available and in practice and supported by current and 
available documentation. These procedures, methods, and practices are 
available from DOT and will be updated periodically. Agencies must 
discuss these modeling procedures and practices through the interagency 
consultation process, as required by Sec. 93.105(c)(1)(i). Network-
based travel models must at a minimum satisfy the following 
requirements:
    (i) Network-based travel models must be validated against observed 
counts (peak and off-peak, if possible) for a base year that is not more 
than 10 years prior to the date of the conformity determination. Model 
forecasts must be analyzed for reasonableness

[[Page 586]]

and compared to historical trends and other factors, and the results 
must be documented;
    (ii) Land use, population, employment, and other network-based 
travel model assumptions must be documented and based on the best 
available information;
    (iii) Scenarios of land development and use must be consistent with 
the future transportation system alternatives for which emissions are 
being estimated. The distribution of employment and residences for 
different transportation options must be reasonable;
    (iv) A capacity-sensitive assignment methodology must be used, and 
emissions estimates must be based on a methodology which differentiates 
between peak and off-peak link volumes and speeds and uses speeds based 
on final assigned volumes;
    (v) Zone-to-zone travel impedances used to distribute trips between 
origin and destination pairs must be in reasonable agreement with the 
travel times that are estimated from final assigned traffic volumes. 
Where use of transit currently is anticipated to be a significant factor 
in satisfying transportation demand, these times should also be used for 
modeling mode splits; and
    (vi) Network-based travel models must be reasonably sensitive to 
changes in the time(s), cost(s), and other factors affecting travel 
choices.
    (2) Reasonable methods in accordance with good practice must be used 
to estimate traffic speeds and delays in a manner that is sensitive to 
the estimated volume of travel on each roadway segment represented in 
the network-based travel model.
    (3) Highway Performance Monitoring System (HPMS) estimates of 
vehicle miles traveled (VMT) shall be considered the primary measure of 
VMT within the portion of the nonattainment or maintenance area and for 
the functional classes of roadways included in HPMS, for urban areas 
which are sampled on a separate urban area basis. For areas with 
network-based travel models, a factor (or factors) may be developed to 
reconcile and calibrate the network-based travel model estimates of VMT 
in the base year of its validation to the HPMS estimates for the same 
period. These factors may then be applied to model estimates of future 
VMT. In this factoring process, consideration will be given to 
differences between HPMS and network-based travel models, such as 
differences in the facility coverage of the HPMS and the modeled network 
description. Locally developed count- based programs and other 
departures from these procedures are permitted subject to the 
interagency consultation procedures of Sec. 93.105(c)(1)(i).
    (c) Two-year grace period for regional emissions analysis 
requirements in certain ozone and CO areas. The requirements of 
paragraph (b) of this section apply to such areas or portions of such 
areas that have not previously been required to meet these requirements 
for any existing NAAQS two years from the following:
    (1) The effective date of EPA's reclassification of an ozone or CO 
nonattainment area that has an urbanized area population greater than 
200,000 to serious or above;
    (2) The official notice by the Census Bureau that determines the 
urbanized area population of a serious or above ozone or CO 
nonattainment area to be greater than 200,000; or,
    (3) The effective date of EPA's action that classifies a newly 
designated ozone or CO nonattainment area that has an urbanized area 
population greater than 200,000 as serious or above.
    (d) In all areas not otherwise subject to paragraph (b) of this 
section, regional emissions analyses must use those procedures described 
in paragraph (b) of this section if the use of those procedures has been 
the previous practice of the MPO. Otherwise, areas not subject to 
paragraph (b) of this section may estimate regional emissions using any 
appropriate methods that account for VMT growth by, for example, 
extrapolating historical VMT or projecting future VMT by considering 
growth in population and historical growth trends for VMT per person. 
These methods must also consider future economic activity, transit 
alternatives, and transportation system policies.
    (e) PM10 from construction-related fugitive dust. (1) For areas in 
which the implementation plan does not identify

[[Page 587]]

construction-related fugitive PM10 as a contributor to the 
nonattainment problem, the fugitive PM10 emissions associated 
with highway and transit project construction are not required to be 
considered in the regional emissions analysis.
    (2) In PM10 nonattainment and maintenance areas with 
implementation plans which identify construction-related fugitive 
PM10 as a contributor to the nonattainment problem, the 
regional PM10 emissions analysis shall consider construction-
related fugitive PM10 and shall account for the level of 
construction activity, the fugitive PM10 control measures in 
the applicable implementation plan, and the dust-producing capacity of 
the proposed activities.
    (f) PM2.5 from construction-related fugitive dust. (1) For 
PM2.5 areas in which the implementation plan does not 
identify construction-related fugitive PM2.5 as a significant 
contributor to the nonattainment problem, the fugitive PM2.5 
emissions associated with highway and transit project construction are 
not required to be considered in the regional emissions analysis.
    (2) In PM2.5 nonattainment and maintenance areas with 
implementation plans which identify construction-related fugitive 
PM2.5 as a significant contributor to the nonattainment 
problem, the regional PM2.5 emissions analysis shall consider 
construction-related fugitive PM2.5 and shall account for the 
level of construction activity, the fugitive PM2.5 control 
measures in the applicable implementation plan, 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 may be 
demonstrated to satisfy the requirements of Sec. Sec. 93.118 (``Motor 
vehicle emissions budget'') or 93.119 (``Interim emissions in areas 
without motor vehicle emissions budgets'') without new regional 
emissions analysis if the previous regional emissions analysis also 
applies to the new plan and/or TIP. This requires a demonstration that:
    (i) The new plan and/or TIP contain all projects which must be 
started in the plan and TIP's timeframes in order to achieve the highway 
and transit system envisioned by the transportation plan;
    (ii) All plan and TIP projects which are regionally significant are 
included in the transportation plan with design concept and scope 
adequate to determine their contribution to the transportation plan's 
and/or TIP's regional emissions at the time of the previous conformity 
determination;
    (iii) The design concept and scope of each regionally significant 
project in the new plan and/or TIP are not significantly different from 
that described in the previous transportation plan; and
    (iv) The previous regional emissions analysis is consistent with the 
requirements of Sec. Sec. 93.118 (including that conformity to all 
currently applicable budgets is demonstrated) and/or 93.119, as 
applicable.
    (2) A project which is not from a conforming transportation plan and 
a conforming TIP may be demonstrated to satisfy the requirements of 
Sec. 93.118 or Sec. 93.119 without additional regional emissions 
analysis if allocating funds to the project will not delay the 
implementation of projects in the transportation plan or TIP which are 
necessary to achieve the highway and transit system envisioned by the 
transportation plan, the previous regional emissions analysis is still 
consistent with the requirements of Sec. 93.118 (including that 
conformity to all currently applicable budgets is demonstrated) and/or 
Sec. 93.119, as applicable, and if the project is either:
    (i) Not regionally significant; or
    (ii) Included in the conforming transportation plan (even if it is 
not specifically included in the latest conforming TIP) with design 
concept and scope adequate to determine its contribution to the 
transportation plan's regional emissions at the time of the 
transportation plan's conformity determination, and the design concept 
and scope of the project is not significantly different from that 
described in the transportation plan.
    (3) A conformity determination that relies on paragraph (g) of this 
section does not satisfy the frequency requirements of Sec. 93.104(b) 
or (c).

[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40080, July 1, 2004]

[[Page 588]]



Sec. 93.123  Procedures for determining localized CO, PM[bdi1][bdi0], and 

PM[bdi2].[bdi5] concentrations (hot-spot analysis).

    (a) CO hot-spot analysis. (1) The demonstrations required by Sec. 
93.116 (``Localized CO, PM10, and PM2.5 
violations'') must be based on quantitative analysis using the 
applicable air quality models, data bases, and other requirements 
specified in 40 CFR part 51, Appendix W (Guideline on Air Quality 
Models). These procedures shall be used in the following cases, unless 
different procedures developed through the interagency consultation 
process required in Sec. 93.105 and approved by the EPA Regional 
Administrator are used:
    (i) For projects in or affecting locations, areas, or categories of 
sites which are identified in the applicable implementation plan as 
sites 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;
    (iii) For any project affecting one or more of the top three 
intersections in the nonattainment or maintenance area with highest 
traffic volumes, as identified in the applicable implementation plan; 
and
    (iv) For any project affecting one or more of the top three 
intersections in the nonattainment or maintenance area with the worst 
level of service, as identified in the applicable implementation plan.
    (2) In cases other than those described in paragraph (a)(1) of this 
section, the demonstrations required by Sec. 93.116 may be based on 
either:
    (i) Quantitative methods that represent reasonable and common 
professional practice; or
    (ii) A qualitative consideration of local factors, if this can 
provide a clear demonstration that the requirements of Sec. 93.116 are 
met.
    (3) DOT, in consultation with EPA, may also choose to make a 
categorical hot-spot finding that (93.116(a) is met without further hot-
spot analysis for any project described in paragraphs (a)(1) and (a)(2) 
of this section based on appropriate modeling. DOT, in consultation with 
EPA, may also consider the current air quality circumstances of a given 
CO nonattainment or maintenance area in categorical hot-spot findings 
for applicable FHWA or FTA projects.
    (b) PM10 and PM2.5 hot-spot analyses. (1) The 
hot-spot demonstration required by Sec. 93.116 must be based on 
quantitative analysis methods for the following types of projects:
    (i) New highway projects that have a significant number of diesel 
vehicles, and expanded highway projects that have a significant increase 
in the number of diesel vehicles;
    (ii) Projects affecting intersections that are at Level-of-Service 
D, E, or F with a significant number of diesel vehicles, or those that 
will change to Level-of-Service D, E, or F because of increased traffic 
volumes from a significant number of diesel vehicles related to the 
project;
    (iii) New bus and rail terminals and transfer points that have a 
significant number of diesel vehicles congregating at a single location;
    (iv) Expanded bus and rail terminals and transfer points that 
significantly increase the number of diesel vehicles congregating at a 
single location; and
    (v) Projects in or affecting locations, areas, or categories of 
sites which are identified in the PM10 or PM2.5 
applicable implementation plan or implementation plan submission, as 
appropriate, as sites of violation or possible violation.
    (2) Where quantitative analysis methods are not available, the 
demonstration required by Sec. 93.116 for projects described in 
paragraph (b)(1) of this section must be based on a qualitative 
consideration of local factors.
    (3) DOT, in consultation with EPA, may also choose to make a 
categorical hot-spot finding that Sec. 93.116 is met without further 
hot-spot analysis for any project described in paragraph (b)(1) of this 
section based on appropriate modeling. DOT, in consultation with EPA, 
may also consider the current air quality circumstances of a given 
PM2.5 or PM10 nonattainment or maintenance area in 
categorical hot-spot findings for applicable FHWA or FTA projects.
    (4) The requirements for quantitative analysis contained in this 
paragraph

[[Page 589]]

(b) will not take effect until EPA releases modeling guidance on this 
subject and announces in the Federal Register that these requirements 
are in effect.
    (c) General requirements. (1) Estimated pollutant concentrations 
must be based on the total emissions burden which may result from the 
implementation of the project, summed together with future background 
concentrations. The total concentration must be estimated and analyzed 
at appropriate receptor locations in the area substantially affected by 
the project.
    (2) Hot-spot analyses must include the entire project, and may be 
performed only after the major design features which will significantly 
impact concentrations have been identified. The future background 
concentration should be estimated by multiplying current background by 
the ratio of future to current traffic and the ratio of future to 
current emission factors.
    (3) Hot-spot analysis assumptions must be consistent with those in 
the regional emissions analysis for those inputs which are required for 
both analyses.
    (4) CO, PM10, or PM2.5 mitigation or control 
measures shall be assumed in the hot-spot analysis only where there are 
written commitments from the project sponsor and/or operator to 
implement such measures, as required by Sec. 93.125(a).
    (5) CO, PM10, and PM2.5 hot-spot analyses are 
not required to consider construction-related activities which cause 
temporary increases in emissions. Each site which is affected by 
construction-related activities shall be considered separately, using 
established ``Guideline'' methods. Temporary increases are defined as 
those which occur only during the construction phase and last 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 applicable 

implementation plan (or implementation plan submission).

    (a) In interpreting an applicable implementation plan (or 
implementation plan submission) with respect to its motor vehicle 
emissions budget(s), the MPO and DOT may not infer additions to the 
budget(s) that are not explicitly intended by the implementation plan 
(or submission). Unless the implementation plan explicitly quantifies 
the amount by which motor vehicle emissions could be higher while still 
allowing a demonstration of compliance with the milestone, attainment, 
or maintenance requirement and explicitly states an intent that some or 
all of this additional amount should be available to the MPO and DOT in 
the emissions budget for conformity purposes, the MPO may not interpret 
the budget to be higher than the implementation plan's estimate of 
future emissions. This applies in particular to applicable 
implementation plans (or submissions) which demonstrate that after 
implementation of control measures in the implementation plan:
    (1) Emissions from all sources will be less than the total emissions 
that would be consistent with a required demonstration of an emissions 
reduction milestone;
    (2) Emissions from all sources will result in achieving attainment 
prior to the attainment deadline and/or ambient concentrations in the 
attainment deadline year will be lower than needed to demonstrate 
attainment; or
    (3) Emissions will be lower than needed to provide for continued 
maintenance.
    (b) A conformity demonstration shall not trade emissions among 
budgets which the applicable implementation plan (or implementation plan 
submission) allocates for different pollutants or precursors, or among 
budgets allocated to motor vehicles and other sources, unless the 
implementation plan establishes appropriate mechanisms for such trades.
    (c) If the applicable implementation plan (or implementation plan 
submission) estimates future emissions by geographic subarea of the 
nonattainment area, the MPO and DOT are not required to consider this to 
establish subarea budgets, unless the applicable implementation plan (or 
implementation plan submission) explicitly indicates an intent to create 
such subarea budgets for the purposes of conformity.

[[Page 590]]

    (d) If a nonattainment area includes more than one MPO, the 
implementation plan may establish motor vehicle emissions budgets for 
each MPO, or else the MPOs must collectively make a conformity 
determination for the entire nonattainment area.

[62 FR 43801. Aug. 15, 1997, as amended at 69 FR 40081, July 1, 2004]



Sec. 93.125  Enforceability of design concept and scope and project-level 

mitigation and control measures.

    (a) Prior to determining that a transportation project is in 
conformity, the MPO, other recipient of funds designated under title 23 
U.S.C. or the Federal Transit Laws, FHWA, or FTA must obtain from the 
project sponsor and/or operator written commitments to implement in the 
construction of the project and operation of the resulting facility or 
service any project-level mitigation or control measures which are 
identified as conditions for NEPA process completion with respect to 
local CO, PM10, or PM2.5 impacts. Before a 
conformity determination is made, written commitments must also be 
obtained for project-level mitigation or control measures which are 
conditions for making conformity determinations for a transportation 
plan or TIP and are included in the project design concept and scope 
which is used in the regional emissions analysis required by Sec. Sec. 
93.118 (``Motor vehicle emissions budget'') and 93.119 (``Interim 
emissions in areas without motor vehicle emissions budgets'') or used in 
the project-level hot-spot analysis required by Sec. 93.116.
    (b) Project sponsors voluntarily committing to mitigation measures 
to facilitate positive conformity determinations must comply with the 
obligations of such commitments.
    (c) The implementation plan revision required in Sec. 51.390 of 
this chapter shall provide that written commitments to mitigation 
measures must be obtained prior to a positive conformity determination, 
and that project sponsors must comply with such commitments.
    (d) If the MPO or project sponsor believes the mitigation or control 
measure is no longer necessary for conformity, the project sponsor or 
operator may be relieved of its obligation to implement the mitigation 
or control measure if it can demonstrate that the applicable hot-spot 
requirements of Sec. 93.116, emission budget requirements of Sec. 
93.118, and interim emissions requirements of Sec. 93.119 are satisfied 
without the mitigation or control measure, and so notifies the agencies 
involved in the interagency consultation process required under Sec. 
93.105. The MPO and DOT must find that the transportation plan and TIP 
still satisfy the applicable requirements of Sec. Sec. 93.118 and/or 
93.119 and that the project still satisfies the requirements of Sec. 
93.116, and therefore that the conformity determinations for the 
transportation plan, TIP, and project are still valid. This finding is 
subject to the applicable public consultation requirements in Sec. 
93.105(e) for conformity determinations for projects.

[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40081, July 1, 2004; 71 
FR 12510, Mar. 10, 2006]



Sec. 93.126  Exempt projects.

    Notwithstanding the other requirements of this subpart, highway and 
transit projects of the types listed in table 2 of this section are 
exempt from the requirement to determine conformity. Such projects may 
proceed toward implementation even in the absence of a conforming 
transportation plan and TIP. A particular action of the type listed in 
table 2 of this section is not exempt if the MPO in consultation with 
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 the case of a transit 
project) concur that it has potentially adverse emissions impacts for 
any reason. States and MPOs must ensure that exempt projects 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 location or 
feature.
Safer non-Federal-aid system roads.
Shoulder improvements.
Increasing sight distance.
Highway Safety Improvement Program implementation.

[[Page 591]]

Traffic control devices and operating assistance other than 
signalization 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 additional 
travel 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 existing 
facilities.
Purchase of operating equipment for vehicles (e.g., radios, fareboxes, 
lifts, etc.).
Construction or renovation of power, signal, and communications systems.
Construction of small passenger shelters and information kiosks.
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, and 
trackbed in existing rights-of-way.
Purchase of new buses and rail cars to replace existing vehicles or for 
minor expansions of the fleet \1\.
Construction of new bus or rail storage/maintenance facilities 
categorically excluded in 23 CFR part 771.

                               Air Quality

Continuation of ride-sharing and van-pooling promotion activities at 
current levels.
Bicycle and pedestrian facilities.

                                  Other

Specific activities which do not involve or lead directly to 
construction, 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 effects of 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 and 
operation of historic transportation buildings, structures, or 
facilities).
Repair of damage caused by natural disasters, civil unrest, or terrorist 
acts, except projects involving substantial functional, locational or 
capacity changes.
    Note: \1\In PM10 and PM2.5 nonattainment or 
maintenance areas, such projects are exempt only if they are in 
compliance with control measures in the applicable implementation plan.

[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40081, July 1, 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, highway and 
transit projects of the types listed in Table 3 of this section are 
exempt from regional emissions analysis requirements. The local effects 
of these projects with respect to CO concentrations must be considered 
to determine if a hot-spot analysis is required prior to making a 
project-level conformity determination. The local effects of projects 
with respect to PM10 and PM2.5 concentrations must 
be considered and a hot-spot analysis performed prior to making a 
project-level conformity determination, if a project in Table 3 also 
meets the criteria in Sec. 93.123(b)(1). These projects may then 
proceed to the project development process even in the absence of a 
conforming transportation plan and TIP. A particular action of the type 
listed in Table 3 of this section is not exempt from regional emissions 
analysis if the MPO in consultation with 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 the case of a transit project) concur that it 
has potential regional impacts for any reason. Table 3 follows:

        Table 3--Projects Exempt From Regional Emissions Analyses

Intersection channelization projects.
Intersection signalization projects at individual intersections.
Interchange reconfiguration projects.
Changes in vertical and horizontal alignment.

[[Page 592]]

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 by 
Sec. Sec. 93.118 and 93.119 for transportation plans, TIPs, or projects 
not from a conforming plan and TIP must include such regionally 
significant traffic signal synchronization projects.



Sec. 93.129  Special exemptions from conformity requirements for pilot program 

areas.

    EPA and DOT may exempt no more than six areas for no more than three 
years from certain requirements of this subpart if these areas are 
selected to participate in a conformity pilot program and have developed 
alternative requirements that have been approved by EPA as an 
implementation plan revision in accordance with Sec. 51.390 of this 
chapter. For the duration of the pilot program, areas selected to 
participate in the pilot program must comply with the conformity 
requirements of the pilot area's implementation plan revision for Sec. 
51.390 of this chapter and all other requirements in 40 CFR parts 51 and 
93 that are not covered by the pilot area's implementation plan revision 
for Sec. 51.390 of this chapter. The alternative conformity 
requirements in conjunction with any applicable state and/or federal 
conformity requirements must be proposed to fulfill all of the 
requirements of and achieve results equivalent to or better than section 
176(c) of the Clean Air Act. After the three-year duration of the pilot 
program has expired, areas will again be subject to all of the 
requirements of this subpart and 40 CFR part 51, subpart T, and/or to 
the requirements of any implementation plan revision that was previously 
approved by EPA in accordance with Sec. 51.390 of this chapter.

[64 FR 13483, Mar. 18, 1999]



Subpart B_Determining Conformity of General Federal Actions to State or 
                      Federal Implementation Plans

    Source: 58 FR 63253, Nov. 30, 1993, unless otherwise noted.



Sec. 93.150  Prohibition.

    (a) No department, agency or instrumentality of the Federal 
Government shall engage in, support in any way or provide financial 
assistance for, license or permit, or approve any activity which does 
not conform to an applicable implementation plan.
    (b) A Federal agency must make a determination that a Federal action 
conforms to the applicable implementation plan in accordance with the 
requirements of this subpart before the action is taken.
    (c) Paragraph (b) of this section does not include Federal actions 
where:
    (1) A National Environmental Policy Act (NEPA) analysis was 
completed as evidenced by a final environmental assessment (EA), 
environmental impact statement (EIS), or finding of no significant 
impact (FONSI) that was prepared prior to January 31, 1994; or
    (2)(i) Prior to January 31, 1994, an environmental analysis was 
commenced or a contract was awarded to develop the specific 
environmental analysis;
    (ii) Sufficient environmental analysis is completed by March 15, 
1994 so that the Federal agency may determine that the Federal action is 
in conformity with the specific requirements and the purposes of the 
applicable SIP pursuant to the agency's affirmative obligation under 
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 the Federal 
action by March 15, 1994.
    (d) Notwithstanding any provision of this subpart, a determination 
that an action is in conformance with the applicable implementation plan 
does not

[[Page 593]]

exempt the action from any other requirements of the applicable 
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 to any 
existing applicable State requirements, establish the conformity 
criteria and procedures necessary to meet the Act requirements until 
such time as the required conformity SIP revision is approved by EPA. A 
State's conformity provisions must contain criteria and procedures that 
are no less stringent than the requirements described in this subpart. A 
State may establish more stringent conformity criteria and procedures 
only if they apply equally to nonfederal as well as Federal entities. 
Following EPA approval of the State conformity provisions (or a portion 
thereof) in a revision to the applicable SIP, the approved (or approved 
portion of the) State criteria and procedures would govern conformity 
determinations and the Federal conformity regulations contained in this 
part would apply only for the portion, if any, of the State's conformity 
provisions that is not approved by EPA. In addition, any previously 
applicable SIP requirements relating to conformity remain enforceable 
until the State revises its SIP to specifically remove them from the SIP 
and that revision is approved by EPA.



Sec. 93.152  Definitions.

    Terms used but not defined in this part shall have the meaning given 
them by the Act and EPA's regulations (40 CFR chapter I), in that order 
of priority.
    Affected Federal land manager means the Federal agency or the 
Federal official charged with direct responsibility for management of an 
area designated as Class I under the Act (42 U.S.C. 7472) that is 
located within 100 km of the proposed Federal action.
    Applicable implementation plan or applicable SIP means the portion 
(or portions) of the SIP or most recent revision thereof, which has been 
approved under section 110 of the Act, or promulgated under section 
110(c) of the Act (Federal implementation plan), or promulgated or 
approved pursuant to regulations promulgated under section 301(d) of the 
Act and which implements the relevant requirements of the Act.
    Areawide air quality modeling analysis means an assessment on a 
scale that includes the entire nonattainment or maintenance area which 
uses an air quality dispersion model to determine the effects of 
emissions on air quality.
    Cause or contribute to a new violation means a Federal action that:
    (1) Causes a new violation of a national ambient air quality 
standard (NAAQS) at a location in a nonattainment or maintenance area 
which would otherwise not be in violation of the standard during the 
future period in question if the Federal action were not taken; or
    (2) Contributes, in conjunction with other reasonably foreseeable 
actions, to a new violation of a NAAQS at a location in a nonattainment 
or maintenance area in a manner that would increase the frequency or 
severity of the new violation.
    Caused by, as used in the terms ``direct emissions'' and ``indirect 
emissions,'' means emissions that would not otherwise occur in the 
absence of the Federal action.
    Criteria pollutant or standard means any pollutant for which there 
is established a NAAQS at 40 CFR part 50.
    Direct emissions means those emissions of a criteria pollutant or 
its precursors that are caused or initiated by the Federal action and 
occur at the same time and place as the action.
    Emergency means a situation where extremely quick action on the part 
of the Federal agencies involved is needed and where the timing of such 
Federal activities makes it impractical to meet the requirements of this 
subpart, such as natural disasters like hurricanes or earthquakes, civil 
disturbances such as terrorist acts and military mobilizations.
    Emissions budgets are those portions of the applicable SIP's 
projected emission inventories that describe the levels of emissions 
(mobile, stationary, area, etc.) that provide for meeting

[[Page 594]]

reasonable further progress milestones, attainment, and/or maintenance 
for any criteria pollutant or its precursors.
    Emissions offsets, for purposes of Sec. 93.158, are emissions 
reductions which are quantifiable, consistent with the applicable SIP 
attainment and reasonable further progress demonstrations, surplus to 
reductions required by, and credited to, other applicable SIP 
provisions, enforceable at both the State and Federal levels, and 
permanent within the timeframe specified by the program.
    Emissions that a Federal agency has a continuing program 
responsibility for means emissions that are specifically caused by an 
agency carrying out its authorities, and does not include emissions that 
occur due to subsequent activities, unless such activities are required 
by the Federal agency. When an agency, in performing its normal program 
responsibilities, takes actions itself or imposes conditions that result 
in air pollutant emissions by a non-Federal entity taking subsequent 
actions, such emissions are covered by the meaning of a continuing 
program responsibility.
    EPA means the Environmental Protection Agency.
    Federal action means any activity engaged in by a department, 
agency, or instrumentality of the Federal government, or any activity 
that a department, agency or instrumentality of the Federal government 
supports in any way, provides financial assistance for, licenses, 
permits, or approves, other than activities related to transportation 
plans, programs, and projects developed, funded, or approved 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, or other approval for some aspect 
of a non-Federal undertaking, the relevant activity is the part, 
portion, or phase of the non-Federal undertaking that requires the 
Federal permit, license, or approval.
    Federal agency means, for purposes of this subpart, a Federal 
department, agency, or instrumentality of the Federal government.
    Increase the frequency or severity of any existing violation of any 
standard in any area means to cause a nonattainment area to exceed a 
standard more often or to cause a violation at a greater concentration 
than previously existed and/or would otherwise exist during the future 
period in question, if the project were not implemented.
    Indirect emissions means those emissions of a criteria pollutant or 
its precursors that:
    (1) Are caused by the Federal action, but may occur later in time 
and/or may be further removed in distance from the action itself but are 
still reasonably foreseeable; and
    (2) The Federal agency can practicably control and will maintain 
control over due to a continuing program responsibility of the Federal 
agency.
    Local air quality modeling analysis means an assessment of localized 
impacts on a scale smaller than the entire nonattainment or maintenance 
area, including, for example, congested roadway intersections and 
highways or transit terminals, which uses an air quality dispersion 
model to determine the effects of emissions on air quality.
    Maintenance area means an area with a maintenance plan approved 
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 that organization 
designated as being responsible, together with the State, for conducting 
the continuing, cooperative, and comprehensive planning process under 23 
U.S.C. 134 and 49 U.S.C. 1607.
    Milestone has the meaning given in sections 182(g)(1) and 189(c)(1) 
of the Act.
    National ambient air quality standards (NAAQS) are those standards 
established pursuant to section 109 of the Act and include standards for 
carbon monoxide (CO), lead (Pb), nitrogen dioxide (NO2), 
ozone, particulate matter (PM-10), and sulfur dioxide (SO2).
    NEPA is the National Environmental Policy Act of 1969, as amended 
(42 U.S.C. 4321 et seq.).
    Nonattainment area means an area designated as nonattainment under 
section 107 of the Act and described in 40 CFR part 81.
    Precursors of a criteria pollutant are:

[[Page 595]]

    (1) For ozone, nitrogen oxides (NOx), unless an area is exempted 
from NOx requirements under section 182(f) of the Act, and volatile 
organic compounds (VOC).
    (2) For PM-10, those pollutants described in the PM-10 nonattainment 
area applicable SIP as significant contributors to the PM-10 levels.
    (3) For PM2.5:
    (i) Sulfur dioxide (SO2) in all PM2.5 
nonattainment and maintenance areas,
    (ii) Nitrogen oxides in all PM2.5 nonattainment and 
maintenance areas unless both the State and EPA determine that it is not 
a significant precursor, and
    (iii) Volatile organic compounds (VOC) and ammonia (NH3) 
only in PM2.5 nonattainment or maintenance areas where either 
the State or EPA determines that they are significant precursors.
    Reasonably foreseeable emissions are projected future indirect 
emissions that are identified at the time the conformity determination 
is made; the location of such emissions is known and the emissions are 
quantifiable, as described and documented by the Federal agency based on 
its own information and after reviewing any information presented to the 
Federal agency.
    Regional water and/or wastewater projects include construction, 
operation, and maintenance of water or wastewater conveyances, water or 
wastewater treatment facilities, and water storage reservoirs which 
affect a large portion of a nonattainment or maintenance area.
    Regionally significant action means a Federal action for which the 
direct and indirect emissions of any pollutant represent 10 percent or 
more of a nonattainment or maintenance area's emission inventory for 
that pollutant.
    Total of direct and indirect emissions means the sum of direct and 
indirect emissions increases and decreases caused by the Federal action; 
i.e., the ``net'' emissions considering all direct and indirect 
emissions. The portion of emissions which are exempt or presumed to 
conform under Sec. 93.153 (c), (d), (e), or (f) are not included in the 
``total of direct and indirect emissions.'' The ``total of direct and 
indirect emissions'' includes emissions of criteria pollutants and 
emissions of precursors of criteria pollutants.

[58 FR 63253, Nov. 30, 1993, as amended at 71 FR 40427, July 17, 2006]



Sec. 93.153  Applicability.

    (a) Conformity determinations for Federal actions related to 
transportation plans, programs, and projects developed, funded, or 
approved 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 CFR part 51, 
subpart T, in lieu of the procedures set forth in this subpart.
    (b) For Federal actions not covered by paragraph (a) of this 
section, a conformity determination is required for each criteria 
pollutant or precursor where the total of direct and indirect emissions 
of the criteria pollutant or precursor in a nonattainment or maintenance 
area caused by a Federal action would equal or exceed any of the rates 
in paragraphs (b)(1) or (2) of this section.
    (1) For purposes of paragraph (b) of this section, the following 
rates 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 significant precursor)....      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 following 
rates apply in maintenance areas:

------------------------------------------------------------------------
                                                                  Tons/
                                                                   year
------------------------------------------------------------------------
Ozone (NOX, SO2 or NO2):
  All Maintenance Areas........................................      100
Ozone (VOC's):

[[Page 596]]

 
  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 significant precursor)....      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 the 
following Federal actions:
    (1) Actions where the total of direct and indirect emissions are 
below the emissions levels specified in paragraph (b) of this section.
    (2) Actions which would result in no emissions increase or an 
increase in emissions that is clearly de minimis:
    (i) Judicial and legislative proceedings.
    (ii) Continuing and recurring activities such as permit renewals 
where activities conducted will be similar in scope and operation to 
activities currently being conducted.
    (iii) Rulemaking and policy development and issuance.
    (iv) Routine maintenance and repair activities, including repair and 
maintenance of administrative sites, roads, trails, and facilities.
    (v) Civil and criminal enforcement activities, such as 
investigations, audits, inspections, examinations, prosecutions, and the 
training of law enforcement personnel.
    (vi) Administrative actions such as personnel actions, 
organizational changes, debt management or collection, cash management, 
internal agency audits, program budget proposals, and matters relating 
to the administration and collection of taxes, duties and fees.
    (vii) The routine, recurring transportation of materiel and 
personnel.
    (viii) Routine movement of mobile assets, such as ships and 
aircraft, in home port reassignments and stations (when no new support 
facilities or personnel are required) to perform as operational groups 
and/or for repair or overhaul.
    (ix) Maintenance dredging and debris disposal where no new depths 
are required, applicable permits are secured, and disposal will be at an 
approved disposal site.
    (x) Actions, such as the following, with respect to existing 
structures, properties, facilities and lands where future activities 
conducted will be similar in scope and operation to activities currently 
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 cost subsidies, the exercise of 
receivership or conservatorship authority, assistance in purchasing 
structures, and the production of coins and currency.
    (xi) The granting of leases, licenses such as for exports and trade, 
permits, and easements where activities conducted will be similar in 
scope and operation to activities currently being conducted.
    (xii) Planning, studies, and provision of technical assistance.
    (xiii) Routine operation of facilities, mobile assets and equipment.
    (xiv) Transfers of ownership, interests, and titles in land, 
facilities, and real and personal properties, regardless of the form or 
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 the Federal 
Reserve Banks, including actions regarding charters, applications, 
notices, licenses, the supervision or examination of depository 
institutions or depository institution holding companies, access to the 
discount window, or the provision of financial services to banking 
organizations or to any department, agency or instrumentality of the 
United States.
    (xvii) Actions by the Board of Governors of the Federal Reserve 
System or any Federal Reserve Bank necessary to effect monetary or 
exchange rate policy.
    (xviii) Actions that implement a foreign affairs function of the 
United States.

[[Page 597]]

    (xix) Actions (or portions thereof) associated with transfers of 
land, facilities, title, and real properties through an enforceable 
contract or lease agreement where the delivery of the deed is required 
to occur promptly after a specific, reasonable condition is met, such as 
promptly after the land is certified as meeting the requirements of 
CERCLA, and where the Federal agency does not retain continuing 
authority to control emissions associated with the lands, facilities, 
title, or real properties.
    (xx) Transfers of real property, including land, facilities, and 
related personal property from a Federal entity to another Federal 
entity and assignments of real property, including land, facilities, and 
related personal property from a Federal entity to another Federal 
entity for subsequent deeding to eligible applicants.
    (xxi) Actions by the Department of the Treasury to effect fiscal 
policy and to exercise the borrowing authority of the United States.
    (3) Actions where the emissions are not reasonably foreseeable, such 
as the following:
    (i) Initial Outer Continental Shelf lease sales which are made on a 
broad scale and are followed by exploration and development plans on a 
project level.
    (ii) Electric power marketing activities that involve the 
acquisition, sale and transmission of electric energy.
    (4) Actions which implement a decision to conduct or carry out a 
conforming program such as prescribed burning actions which are 
consistent with a conforming land management plan.
    (d) Notwithstanding the other requirements of this subpart, a 
conformity determination is not required for the following Federal 
actions (or portion thereof):
    (1) The portion of an action that includes major new or modified 
stationary sources that require a permit under the new source review 
(NSR) program (section 173 of the Act) or the prevention of significant 
deterioration program (title I, part C of the Act).
    (2) Actions in response to emergencies or natural disasters such as 
hurricanes, earthquakes, etc., which are commenced on the order of hours 
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 particular 
action furthers air quality research, as determined by the State agency 
primarily responsible for the applicable SIP;
    (4) Alteration and additions of existing structures as specifically 
required by new or existing applicable environmental legislation or 
environmental regulations (e.g., hush houses for aircraft engines and 
scrubbers for air emissions).
    (5) Direct emissions from remedial and removal actions carried out 
under the Comprehensive Environmental Response, Compensation and 
Liability Act and associated regulations to the extent such emissions 
either comply with the substantive requirements of the PSD/NSR 
permitting program or are exempted from other environmental regulation 
under the provisions of CERCLA and applicable regulations issued under 
CERCLA.
    (e) Federal actions which are part of a continuing response to an 
emergency or disaster under paragraph (d)(2) of this section and which 
are to be taken more than 6 months after the commencement of the 
response to the emergency or disaster under paragraph (d)(2) of this 
section are exempt from the requirements of this subpart only if:
    (1) The Federal agency taking the actions makes a written 
determination that, for a specified period not to exceed an additional 6 
months, it is impractical to prepare the conformity analyses which would 
otherwise be required and the actions cannot be delayed due to 
overriding concerns for public health and welfare, national security 
interests and foreign policy commitments; or
    (2) For actions which are to be taken after those actions covered by 
paragraph (e)(1) of this section, the Federal agency makes a new 
determination as

[[Page 598]]

provided in paragraph (e)(1) of this section.
    (f) Notwithstanding other requirements of this subpart, actions 
specified by individual Federal agencies that have met the criteria set 
forth in either paragraph (g)(1) or (g)(2) of this section and the 
procedures set forth in paragraph (h) of this section are presumed to 
conform, except as provided in paragraph (j) of this section.
    (g) The Federal agency must meet the criteria for establishing 
activities that are presumed to conform by fulfilling the requirements 
set forth in either paragraph (g)(1) or (g)(2) of this section:
    (1) The Federal agency must clearly demonstrate using methods 
consistent with this subpart that the total of direct and indirect 
emissions from the type of activities which would be presumed to conform 
would not:
    (i) Cause or contribute to any new violation of any standard in any 
area;
    (ii) Interfere with provisions in the applicable SIP for maintenance 
of any standard;
    (iii) Increase the frequency or severity of any existing violation 
of any standard in any area; or
    (iv) Delay timely attainment of any standard or any required interim 
emission reductions or other milestones in any area including, where 
applicable, emission levels specified in the applicable SIP for purposes 
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 total of 
direct and indirect emissions from such future actions would be below 
the emission rates for a conformity determination that are established 
in paragraph (b) of this section, based, for example, on similar actions 
taken over recent years.
    (h) In addition to meeting the criteria for establishing exemptions 
set forth in paragraphs (g)(1) or (g)(2) of this section, the following 
procedures must also be complied with to presume that activities will 
conform:
    (1) The Federal agency must identify through publication in the 
Federal Register its list of proposed activities that are presumed to 
conform and the basis for the presumptions;
    (2) The Federal agency must notify the appropriate EPA Regional 
Office(s), State and local air quality agencies and, where applicable, 
the agency designated under section 174 of the Act and the MPO and 
provide at least 30 days for the public to comment on the list of 
proposed activities presumed to conform;
    (3) The Federal agency must document its response to all the 
comments received and make the comments, response, and final list of 
activities available to the public upon request; and
    (4) The Federal agency must publish the final list of such 
activities in the Federal Register.
    (i) Notwithstanding the other requirements of this subpart, when the 
total of direct and indirect emissions of any pollutant from a Federal 
action does not equal or exceed the rates specified in paragraph (b) of 
this section, but represents 10 percent or more of a nonattainment or 
maintenance area's total emissions of that pollutant, the action is 
defined as a regionally significant action and the requirements of Sec. 
93.150 and Sec. Sec. 93.155 through 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 in 
fact meet one of the criteria in paragraph (g)(1) of this section, that 
action shall not be presumed to conform and the requirements of Sec. 
93.150 and Sec. Sec. 93.155 through 93.160 shall apply for the Federal 
action.
    (k) The provisions of this subpart shall apply in all nonattainment 
and maintenance areas.

[58 FR 63253, Nov. 30, 1993, as amended at 71 FR 40427, July 17, 2006]



Sec. 93.154  Conformity analysis.

    Any Federal department, agency, or instrumentality of the Federal 
government taking an action subject to this subpart must make its own 
conformity determination consistent with the requirements of this 
subpart. In making its conformity determination, a Federal agency must 
consider comments

[[Page 599]]

from any interested parties. Where multiple Federal agencies have 
jurisdiction for various aspects of a project, a Federal agency may 
choose to adopt the analysis of another Federal agency or develop its 
own analysis in order to make its conformity determination.



Sec. 93.155  Reporting requirements.

    (a) A Federal agency making a conformity determination under Sec. 
93.158 must provide to the appropriate EPA Regional Office(s), State and 
local air quality agencies and, where applicable, affected Federal land 
managers, the agency designated under section 174 of the Act and the MPO 
a 30 day notice which describes the proposed action and the Federal 
agency's draft conformity determination on the action.
    (b) A Federal agency must notify the appropriate EPA Regional 
Office(s), State and local air quality agencies and, where applicable, 
affected Federal land managers, the agency designated under section 174 
of the Clean Air Act and the MPO within 30 days after making a final 
conformity determination under Sec. 93.158.



Sec. 93.156  Public participation.

    (a) Upon request by any person regarding a specific Federal action, 
a Federal agency must make available for review its draft conformity 
determination under Sec. 93.158 with supporting materials which 
describe the analytical methods and conclusions relied upon in making 
the applicability analysis and draft conformity determination.
    (b) A Federal agency must make public its draft conformity 
determination under Sec. 93.158 by placing a notice by prominent 
advertisement in a daily newspaper of general circulation in the area 
affected by the action and by providing 30 days for written public 
comment prior to taking any formal action on the draft determination. 
This comment period may be concurrent with any other public involvement, 
such as occurs in the NEPA process.
    (c) A Federal agency must document its response to all the comments 
received on its draft conformity determination under Sec. 93.158 and 
make the comments and responses available, upon request by any person 
regarding a specific Federal action, within 30 days of the final 
conformity determination.
    (d) A Federal agency must make public its final conformity 
determination under Sec. 93.158 for a Federal action by placing a 
notice by prominent advertisement in a daily newspaper of general 
circulation in the area affected by the action within 30 days of the 
final conformity determination.



Sec. 93.157  Frequency of conformity determinations.

    (a) The conformity status of a Federal action automatically lapses 5 
years from the date a final conformity determination is reported under 
Sec. 93.155, unless the Federal action has been completed or a 
continuous program has been commenced to implement that Federal action 
within a reasonable time.
    (b) Ongoing Federal activities at a given site showing continuous 
progress are not new actions and do not require periodic 
redeterminations so long as such activities are within the scope of the 
final conformity determination reported under Sec. 93.155.
    (c) If, after the conformity determination is made, the Federal 
action is changed so that there is an increase in the total of direct 
and 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 a conformity 
determination for a specific pollutant, will be determined to conform to 
the applicable SIP if, for each pollutant that exceeds the rates in 
Sec. 93.153(b), or otherwise requires a conformity determination due to 
the total of direct and indirect emissions from the action, the action 
meets the requirements of paragraph (c) of this section, and meets any 
of the following requirements:
    (1) For any criteria pollutant, the total of direct and indirect 
emissions from the action are specifically identified and accounted for 
in the applicable SIP's attainment or maintenance demonstration;
    (2) For ozone or nitrogen dioxide, the total of direct and indirect 
emissions

[[Page 600]]

from the action are fully offset within the same nonattainment or 
maintenance area through a revision to the applicable SIP or a similarly 
enforceable measure that effects emission reductions so that there is no 
net increase in emissions of that pollutant;
    (3) For any criteria pollutant, except ozone and nitrogen dioxide, 
the total of direct and indirect emissions from the action meet the 
requirements:
    (i) Specified in paragraph (b) of this section, based on areawide 
air quality modeling analysis and local air quality modeling analysis; 
or
    (ii) Meet the requirements of paragraph (a)(5) of this section and, 
for local air quality modeling analysis, the requirement of paragraph 
(b) of this section;
    (4) For CO or PM-10--
    (i) Where the State agency primarily responsible for the applicable 
SIP determines that an areawide air quality modeling analysis is not 
needed, the total of direct and indirect emissions from the action meet 
the requirements specified in paragraph (b) of this section, based on 
local air quality modeling analysis; or
    (ii) Where the State agency primarily responsible for the applicable 
SIP determines that an areawide air quality modeling analysis is 
appropriate and that a local air quality modeling analysis is not 
needed, the total of direct and indirect emissions from the action meet 
the requirements specified in paragraph (b) of this section, based on 
areawide modeling, or meet the requirements of paragraph (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 action or 
the action as a whole meets any of the following requirements:
    (i) Where EPA has approved a revision to an area's attainment or 
maintenance demonstration after 1990 and the State makes a determination 
as provided in paragraph (a)(5)(i)(A) of this section or where 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 (or 
portion thereof) is determined and documented by the State agency 
primarily responsible for the applicable SIP to result in a level of 
emissions which, together with all other emissions in the nonattainment 
(or maintenance) area, would not exceed the emissions budgets specified 
in the applicable SIP;
    (B) The total of direct and indirect emissions from the action (or 
portion thereof) is determined by the State agency responsible for the 
applicable SIP to result in a level of emissions which, together with 
all other emissions in the nonattainment (or maintenance) area, would 
exceed an emissions budget specified in the applicable SIP and the State 
Governor or the Governor's designee for SIP actions makes a written 
commitment to EPA which includes the following:
    (1) A specific schedule for adoption and submittal of a revision to 
the SIP which would achieve the needed emission reductions prior to the 
time emissions from the Federal action would occur;
    (2) Identification of specific measures for incorporation into the 
SIP which would result in a level of emissions which, together with all 
other emissions in the nonattainment or maintenance area, would not 
exceed any emissions budget specified in the applicable SIP;
    (3) A demonstration that all existing applicable SIP requirements 
are being implemented in the area for the pollutants affected by the 
Federal action, and that local authority to implement additional 
requirements has been fully pursued;
    (4) A determination that the responsible Federal agencies have 
required all reasonable mitigation measures associated with their 
action; and
    (5) Written documentation including all air quality analyses 
supporting the conformity determination;
    (C) Where a Federal agency made a conformity determination based on 
a State commitment under paragraph (a)(5)(i)(B) of this section, such a 
State commitment is automatically deemed a call for a SIP revision by 
EPA under section 110(k)(5) of the Act, effective on the date of the 
Federal conformity determination and requiring response within 18 months 
or any shorter time

[[Page 601]]

within which the State commits to revise the applicable SIP;
    (ii) The action (or portion thereof), as determined by the MPO, is 
specifically included in a current transportation plan and 
transportation improvement program which have been found to conform to 
the 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 emissions 
within the same nonattainment or maintenance area through a revision to 
the applicable SIP or an equally enforceable measure that effects 
emission reductions equal to or greater than the total of direct and 
indirect emissions from the action so that there is no net increase in 
emissions of that pollutant;
    (iv) Where EPA has not approved a revision to the relevant SIP 
attainment or maintenance demonstration since 1990, the total of direct 
and indirect emissions from the action for the future years (described 
in Sec. 93.159(d) do not increase emissions with respect to the 
baseline emissions:
    (A) The baseline emissions reflect the historical activity levels 
that occurred in the geographic area affected by the proposed Federal 
action during:
    (1) Calendar year 1990;
    (2) The calendar year that is the basis for the classification (or, 
where the classification is based on multiple years, the most 
representative year), if a classification is promulgated in 40 CFR part 
81; or
    (3) The year of the baseline inventory in the PM-10 applicable SIP;
    (B) The baseline emissions are the total of direct and indirect 
emissions calculated for the future years (described in Sec. 93.159(d)) 
using the historic activity levels (described in paragraph (a)(5)(iv)(A) 
of this section) and appropriate emission factors for the future years; 
or
    (v) Where the action involves regional water and/or wastewater 
projects, such projects are sized to meet only the needs of population 
projections 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 in any 
area; or
    (ii) Increase the frequency or severity of any existing violation of 
any standard in any area.
    (c) Notwithstanding any other requirements of this section, an 
action subject to this subpart may not be determined to conform to the 
applicable SIP unless the total of direct and indirect emissions from 
the action is in compliance or consistent with all relevant requirements 
and milestones contained in the applicable SIP, such as elements 
identified as part of the reasonable further progress schedules, 
assumptions specified in the attainment or maintenance demonstration, 
prohibitions, numerical emission limits, and work practice requirements.
    (d) Any analyses required under this section must be completed, and 
any mitigation requirements necessary for a finding of conformity must 
be identified before the determination of conformity is made.



Sec. 93.159  Procedures for conformity determinations of general Federal 

actions.

    (a) The analyses required under this subpart must be based on the 
latest planning assumptions.
    (1) All planning assumptions must be derived from the estimates of 
population, employment, travel, and congestion most recently approved by 
the MPO, or other agency authorized to make such estimates, where 
available.
    (2) Any revisions to these estimates used as part of the conformity 
determination, including projected shifts in geographic location or 
level of population, employment, travel, and congestion, must be 
approved by the MPO or other agency authorized to make such estimates 
for the urban area.
    (b) The analyses required under this subpart must be based on the 
latest and most accurate emission estimation techniques available as 
described below, unless such techniques are inappropriate. If such 
techniques are inappropriate and written approval of the EPA Regional 
Administrator is obtained for any modification or substitution, they may 
be modified or another technique substituted on a case-

[[Page 602]]

by-case basis or, where appropriate, on a generic basis for a specific 
Federal agency program.
    (1) For motor vehicle emissions, the most current version of the 
motor vehicle emissions model specified by EPA and available for use in 
the preparation or revision of SIPs in that State must be used for the 
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 of 
availability of any new motor vehicle emissions model; and
    (ii) A grace period of 3 months shall apply during which the motor 
vehicle emissions model previously specified by EPA as the most current 
version may be used. Conformity analyses for which the analysis was 
begun during the grace period or no more than 3 years before the Federal 
Register notice of availability of the latest emission model may 
continue to use the previous version of the model specified by EPA.
    (2) For non-motor vehicle sources, including stationary and area 
source 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 unless more accurate emission data are 
available, such as actual stack test data from stationary sources which 
are part of the conformity analysis.
---------------------------------------------------------------------------

    \1\ Copies may be obtained from the Technical Support Division of 
OAQPS, EPA, MD-14, Research Triangle Park, NC 27711.
---------------------------------------------------------------------------

    (c) The air quality modeling analyses required under this subpart 
must be based on the applicable air quality models, data bases, and 
other 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 the 
model may be modified or another model substituted on a case-by-case 
basis or, where appropriate, on a generic basis for a specific Federal 
agency program; and
    (2) Written approval of the EPA Regional Administrator is obtained 
for any modification or substitution.
    (d) The analyses required under this subpart, except Sec. 
93.158(a)(1), must be based on the total of direct and indirect 
emissions from the action and must reflect emission scenarios that are 
expected to occur under each of the following cases:
    (1) The Act mandated attainment year or, if applicable, the farthest 
year for which emissions are projected in the maintenance plan;
    (2) The year during which the total of direct and indirect emissions 
from the action is expected to be the greatest on an annual basis; and
    (3) Any year for which the applicable SIP specifies an emissions 
budget.



Sec. 93.160  Mitigation of air quality impacts.

    (a) Any measures that are intended to mitigate air quality impacts 
must be identified and the process for implementation and enforcement of 
such measures must be described, including an implementation schedule 
containing explicit timelines for implementation.
    (b) Prior to determining that a Federal action is in conformity, the 
Federal agency making the conformity determination must obtain written 
commitments from the appropriate persons or agencies to implement any 
mitigation measures which are identified as conditions for making 
conformity determinations.
    (c) Persons or agencies voluntarily committing to mitigation 
measures to facilitate positive conformity determinations must comply 
with the obligations of such commitments.
    (d) In instances where the Federal agency is licensing, permitting 
or otherwise approving the action of another governmental or private 
entity, approval by the Federal agency must be conditioned on the other 
entity meeting the mitigation measures set forth in the conformity 
determination.
    (e) When necessary because of changed circumstances, mitigation 
measures may be modified so long as the new mitigation measures continue

[[Page 603]]

to support the conformity determination. Any proposed change in the 
mitigation measures is subject to the reporting requirements of Sec. 
93.156 and the public participation requirements of Sec. 93.157.
    (f) The implementation plan revision required in Sec. 93.151 shall 
provide that written commitments to mitigation measures must be obtained 
prior to a positive conformity determination and that such commitments 
must be fulfilled.
    (g) After a State revises its SIP to adopt its general conformity 
rules and EPA approves that SIP revision, any agreements, including 
mitigation measures, necessary for a conformity determination will be 
both State and federally enforceable. Enforceability through the 
applicable SIP will apply to all persons who agree to mitigate direct 
and indirect emissions associated with a Federal action for a conformity 
determination.



PART 94_CONTROL OF EMISSIONS FROM MARINE COMPRESSION-IGNITION ENGINES--Table 

of Contents




 Subpart A_General Provisions for Emission Regulations for Compression-
                         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 and Category 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 marinizers and small-
          volume manufacturers.
94.210 Amending the application and certificate of conformity.
94.211 Emission-related maintenance instructions for purchasers.
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 Trading Provisions

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 provisions preserved.
94.408 Disclaimer of production warranty applicability.

[[Page 604]]

         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 of conformity.
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]

                      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.

              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, and competition 
          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 for auxiliary 
          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 Prohibited Acts

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 Engine Parameters and 
          Specifications.

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

    Source: 64 FR 73331, Dec. 29, 1999, unless otherwise noted.



 Subpart A_General Provisions for Emission Regulations for Compression-
                         Ignition Marine Engines



Sec. 94.1  Applicability.

    (a) Except as noted in paragraphs (b) and (c) of this section, the 
provisions of this part apply to manufacturers (including post-
manufacture marinizers and dressers), rebuilders, owners and operators 
of:
    (1) Marine engines that are compression-ignition engines 
manufactured (or that otherwise become new) on or after January 1, 2004;
    (2) Marine vessels manufactured (or that otherwise become new) on or 
after January 1, 2004 and which include a compression-ignition marine 
engine.
    (b) Notwithstanding the provisions of paragraph (c) of this section, 
the requirements and prohibitions of this part do not apply with respect 
to the engines identified in 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.

[[Page 605]]

    (3) Marine engines subject to the standards of 40 CFR part 1042.
    (c) The provisions of Subpart L of this part apply to everyone with 
respect to the engines identified in paragraph (a) of this section.
    (d) This part applies as specified in 40 CFR part 60, subpart IIII, 
to compression-ignition engines subject to the standards of 40 CFR 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; 73 FR 37196, June 30, 2008]



Sec. 94.2  Definitions.

    (a) The definitions of this section apply to this subpart. They also 
apply to all subparts of this part, except where noted otherwise.
    (b) As used in this part, all terms not defined in this section 
shall have the meaning given them in the Act:
    Act means the Clean Air Act as amended (42 U.S.C. 7401 et seq.).
    Adjustable Parameter means any device, system, or element of design 
which is physically or electronically capable of being adjusted 
(including those which are difficult to access) and which, if adjusted, 
may affect emissions or engine performance during emission testing.
    Administrator means the Administrator of the Environmental 
Protection Agency or his/her authorized representative.
    Aftertreatment system or aftertreatment component or aftertreatment 
technology means any system or component or technology mounted 
downstream of the exhaust valve or exhaust port whose design function is 
to reduce exhaust emissions.
    Amphibious vehicle means a vehicle with wheels or tracks that is 
designed primarily for operation on land and secondarily for operation 
in water.
    Annex VI Technical Code means the ``Technical Code on Control of 
Emission of Nitrogen Oxides from Marine Diesel Engines,'' adopted by the 
International Maritime Organization (incorporated by reference in Sec. 
94.5).
    Applicable standard means a standard to which an engine is subject; 
or, where an engine is certified to another standard or FEL, applicable 
standard means the other standard or FEL to which the engine is 
certified, as allowed by Sec. 94.8. This definition does not apply to 
subpart D of this part.
    Auxiliary emission control device (AECD) means any element of design 
which senses temperature, vessel speed, engine RPM, atmospheric 
pressure, manifold pressure or vacuum, or any other parameter for the 
purpose of activating, modulating, delaying, or deactivating the 
operation of any part of the emission control system (including, but not 
limited to injection timing); or any other feature that causes in-use 
emissions to be higher than those measured under test conditions.
    Averaging means the exchange of emission credits among engine 
families within a given manufacturer's product line.
    Banking means the retention of emission credits by a credit holder 
for use in future calendar year averaging or trading as permitted by the 
regulations in this part.
    Base engine means a land-based engine to be marinized, as configured 
prior to marinization.
    Blue Sky Series engine means an engine meeting the requirements of 
Sec. 94.7(e).
    Brake-specific fuel consumption means the mass of fuel consumed by 
an engine during a test segment divided by the brake-power output of the 
engine during that same test segment.
    Calibration means the set of specifications, including tolerances, 
specific to a particular design, version, or application of a component, 
or components, or assembly capable of functionally describing its 
operation over its working range.
    Category 1 means relating to a marine engine with a rated power 
greater than or equal to 37 kilowatts and a specific engine displacement 
less than 5.0 liters per cylinder.
    Category 2 means relating to a marine engine with a specific engine 
displacement greater than or equal to 5.0 liters per cylinder but less 
than 30 liters per cylinder.
    Category 3 means relating to a marine engine with a specific engine 
displacement greater than or equal to 30 liters per cylinder.

[[Page 606]]

    Commercial means relating to an engine or vessel that is not a 
recreational marine engine or a recreational vessel.
    Compliance date means the date on which compliance with a standard 
becomes mandatory. For example, the compliance date for standards which 
first apply to the 2004 model year, is January 1, 2004.
    Compression-ignition means relating to an engine that is not a 
spark-ignition engine.
    Configuration means any subclassification of an engine family which 
can be described on the basis of gross power, emission control system, 
governed speed, injector size, engine calibration, and other parameters 
as designated by the Administrator.
    Constant-speed engine means an engine that is governed to operate 
only at a single rated speed.
    Crankcase emissions means airborne substances emitted to the 
atmosphere from any portion of the engine crankcase ventilation or 
engine lubrication system.
    Defeat device means an AECD or other control feature that reduces 
the effectiveness of the emission control system under conditions which 
may reasonably be expected to be encountered in normal engine operation 
and use, unless the AECD or other control feature has been identified by 
the manufacturer in the application for certification, and:
    (1) Such conditions are substantially represented by the portion of 
the applicable duty cycle of Sec. 94.105 during which the applicable 
emission rates are measured;
    (2) The need for the AECD or other control feature is justified in 
terms of protecting the engine or vessel against damage or accident; or
    (3) The AECD or other control feature does not go beyond the 
requirements of engine starting.
    Designated Officer means the Manager of the Engine Programs Group 
(6405-J), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., 
Washington, DC 20460.
    Deterioration factor means the difference between exhaust emissions 
at the end of useful life and exhaust emissions at the low hour test 
point expressed as either: the ratio of exhaust emissions at the end of 
useful life to exhaust emissions at the low hour test point (for 
multiplicative deterioration factors); or the difference between exhaust 
emissions at the end of useful life and exhaust emissions at the low 
hour test point (for additive deterioration factors).
    Diesel fuel means any fuel suitable for use in diesel engines which 
is commonly or commercially known or sold as diesel fuel or marine 
distillate fuel.
    Dresser means any entity that modifies a land-based engine for use 
in a marine vessel, in compliance with the provisions of Sec. 94.907. 
This means that dressers may not modify the engine in a way that would 
affect emissions.
    Emission control system means those devices, systems or elements of 
design which control or reduce the emission of substances from an 
engine. This includes, but is not limited to, mechanical and electronic 
components and controls, and computer software.
    Emission credits means the amount of emission reduction or 
exceedance, by an engine family, below or above the emission standard, 
respectively, as calculated under subpart D of this part. Emission 
reductions below the standard are considered as ``positive credits,'' 
while emission exceedances above the standard are considered as 
``negative credits.'' In addition, ``projected credits'' refer to 
emission credits based on the projected applicable production/sales 
volume of the engine family. ``Reserved credits'' are emission credits 
generated within a calendar year waiting to be reported to EPA at the 
end of the calendar year. ``Actual credits'' refer to emission credits 
based on actual applicable production/sales volume as contained in the 
end-of-year reports submitted to EPA.
    Emission-data engine means an engine which is tested for 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 which affects any parameter 
or specification enumerated in Appendix I of this part.
    Emission-related maintenance means that maintenance which 
substantially affects emissions or which is likely to affect the 
deterioration of the engine or vessel with respect to emissions.

[[Page 607]]

    Engine family means a group of engine configurations that are 
expected to have similar emission characteristics throughout the useful 
lives of the engines (see Sec. 94.204), and that are (or were) covered 
(or requested to be covered) by a specific certificate of conformity.
    Engineering analysis means a summary of scientific and/or 
engineering principles and facts that support a conclusion made by a 
manufacturer, with respect to compliance with the provisions of this 
part.
    EPA Enforcement Officer means any officer or employee of the 
Environmental Protection Agency so designated in writing by the 
Administrator or his/her designee.
    Exhaust emissions means substances (i.e., gases and particles) 
emitted to the atmosphere from any opening downstream from the exhaust 
port or exhaust valve of an engine.
    Exhaust gas recirculation means an emission control technology that 
reduces emissions by routing gases that had been exhausted from the 
combustion chamber(s) back into the engine to be mixed with incoming air 
prior to or during combustion. The use of valve timing to increase the 
amount of residual exhaust gas in the combustion chamber(s) that is 
mixed with incoming air prior to or during combustion is not considered 
to be exhaust gas recirculation for the purposes of this part.
    Family Emission Limit (FEL) means an emission level declared by the 
certifying manufacturer to serve in lieu of an otherwise applicable 
emission standard for certification and compliance purposes in the 
averaging, banking and trading program. FELs are expressed to the same 
number of decimal places as the applicable emission standard.
    Foreign vessel means a vessel of foreign registry or a vessel 
operated under the authority of a country other than the United States.
    Fuel system means the combination of fuel tank(s), fuel pump(s), 
fuel lines and filters, pressure regulator(s), and fuel injection 
components, fuel system vents, and any other component involved in the 
delivery of fuel to the engine.
    Green Engine Factor means a factor that is applied to emission 
measurements from an engine that has had little or no service 
accumulation. The Green Engine Factor adjusts emission measurements to 
be equivalent to emission measurements from an engine that has had 
approximately 300 hours of use.
    Hydrocarbon standard means an emission standard for total 
hydrocarbons, nonmethane hydrocarbons, or total hydrocarbon equivalent; 
or a combined emission standard for NOX and total 
hydrocarbons, nonmethane hydrocarbons, or total hydrocarbon equivalent.
    Identification number means a specification (for example, model 
number/serial number combination) which allows a particular engine to be 
distinguished from other similar engines.
    Importer means an entity or person who imports engines from a 
foreign country into the United States (including its territories).
    Intermediate Speed means peak torque speed if peak torque speed 
occurs from 60 to 75 percent of maximum test speed. If peak torque speed 
is less than 60 percent of maximum test speed, intermediate speed means 
60 percent of maximum test speed. If peak torque 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 between the time 
that normal assembly operations and adjustments are completed and the 
time that 300 additional operating hours have been accumulated 
(including hours of operation accumulated during emission testing, if 
performed).
    Malfunction means a condition in which the operation of a component 
in an engine occurs in a manner other than that specified by the 
certifying manufacturer (e.g., as specified in the application for 
certification); or the operation of an engine in that condition.
    Manufacturer means any person engaged in the manufacturing or 
assembling of new engines or importing such engines for resale, or who 
acts for and is under the control of any such person in connection with 
the distribution of

[[Page 608]]

such engines. The term manufacturer includes post-manufacturer 
marinizers, but does not include any dealer with respect to new engines 
received by such person in commerce.
    Manufacturer-owned engine means an uncertified marine engine that is 
owned and controlled by a manufacturer, is used for product development, 
and is not sold or leased.
    Marine engine means a nonroad engine that is installed or intended 
to be installed on a marine vessel. This includes a portable auxiliary 
marine engine only if its fueling, cooling, or exhaust system is an 
integral part of the vessel. There are two kinds of marine engines:
    (1) Propulsion marine engine means a marine engine that moves a 
vessel through the water or directs the vessel's movement.
    (2) Auxiliary marine engine means a marine engine not used for 
propulsion.
    Marine vessel has the meaning given in 1 U.S.C. 3, except that it 
does not include amphibious vehicles. The definition in 1 U.S.C. 3 very 
broadly includes every craft capable of being used as a means of 
transportation on water.
    Maximum Test Power means:
    (1) For Category 1 engines, the power output observed at the maximum 
test speed with the maximum fueling rate possible.
    (2) For Category 2 engines, 90 percent of the power output observed 
at the maximum test speed with the maximum fueling rate possible.
    Maximum test speed means the engine speed defined by Sec. 94.107 to 
be the maximum engine speed to use during testing.
    Maximum Test Torque means the torque output observed at the test 
speed with the maximum fueling rate possible at that speed.
    Method of aspiration means the method whereby air for fuel 
combustion enters the engine (e.g., naturally aspirated or 
turbocharged).
    Model year means the manufacturer's annual new model production 
period which includes January 1 of the calendar year, ends no later than 
December 31 of the calendar year, and does not begin earlier than 
January 2 of the previous calendar year. Where a manufacturer has no 
annual new model production period, model year means calendar year.
    New marine engine means:
    (1)(i) A marine engine, the equitable or legal title to which has 
never been transferred to an ultimate purchaser;
    (ii) A marine engine installed on a vessel, the equitable or legal 
title to such vessel has never been transferred to an ultimate 
purchaser; or
    (iii) A marine engine that has not been placed into service on a 
vessel.
    (2) Where the equitable or legal title to an engine or vessel is not 
transferred to an ultimate purchaser prior to its being placed into 
service, the engine ceases to be new after it is placed into service.
    (3) With respect to imported engines, the term ``new marine engine'' 
means an engine that is not covered by a certificate of conformity under 
this part at the time of importation, and that was manufactured after 
the starting date of the emission standards in this part which are 
applicable to such engine (or which would be applicable to such engine 
had it been manufactured for importation into the United States).
    New vessel means:
    (1)(i) A vessel, the equitable or legal title to which has never 
been transferred to an ultimate purchaser; or
    (ii) For vessels with no Category 3 engines, a vessel that has been 
modified such that the value of the modifications exceeds 50 percent of 
the value of the modified vessel. The value of the modification is the 
difference in the assessed value of the vessel before the modification 
and the assessed value of the vessel after the modification. Use the 
following equation to determine if the fractional value of the 
modification exceeds 50 percent:

Percent of value = [(Value after modification) - (Value before 
modification)] x ( 100% / (Value after modification)

    (iii) For vessels with Category 3 engines, a vessel that has 
undergone a modification, which:
    (A) Substantially alters the dimensions or carrying capacity of the 
vessel; or
    (B) Changes the type of vessel; or

[[Page 609]]

    (C) Substantially prolongs the vessel's life.
    (2) Where the equitable or legal title to a vessel is not 
transferred to an ultimate purchaser prior to its being placed into 
service, the vessel ceases to be new when it is placed into service.
    Nonconforming marine engine means a marine engine which is not 
covered by a certificate of conformity prior to importation or being 
offered for importation (or for which such coverage has not been 
adequately demonstrated to EPA); or a marine engine which was originally 
covered by a certificate of conformity, but which is not in a certified 
configuration, or otherwise does not comply with the conditions of that 
certificate of conformity.

    Note: This definition does not include domestic marine engines which 
are not covered by a certificate of conformity prior to their 
introduction into U.S. commerce; such engines are considered to be 
``noncomplying marine engines.''

    Nonroad means relating to nonroad engines, or vessels or equipment 
that include nonroad engines.
    Nonroad engine has the meaning given in 40 CFR 1068.30. In general, 
this means all internal-combustion engines except motor vehicle engines, 
stationary engines, engines used solely for competition, or engines used 
in aircraft.
    Oxides of nitrogen means nitric oxide and nitrogen dioxide. Oxides 
of nitrogen are expressed quantitatively as if the nitric oxide were in 
the form of nitrogen dioxide (oxides of nitrogen are assumed to 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 that a passenger 
is a person that pays to be on the vessel.
    Post-manufacture marinizer means an entity that produces a marine 
engine by modifying a non-marine engine, whether certified or 
uncertified, complete or partially complete, where such entity is not 
controlled by the manufacturer of the base engine or by an entity that 
also controls the manufacturer of the base engine. In addition, vessel 
manufacturers that substantially modify marine engines are post-
manufacture marinizers. For the purpose of this definition, 
``substantially modify'' means changing an engine in a way that could 
change engine emission characteristics.
    Presentation of credentials means the display of the document 
designating a person as an EPA enforcement officer.
    Primary fuel means that type of fuel (e.g., petroleum distillate 
diesel fuel) that is expected to be consumed in the greatest quantity 
(volume basis) when the engine is operated in use.
    Recreational marine engine means a Category 1 propulsion marine 
engine that is intended by the manufacturer to be installed on a 
recreational vessel, and which is permanently labeled as follows:

    ``THIS ENGINE IS CATEGORIZED AS A RECREATIONAL MARINE ENGINE UNDER 
40 CFR PART 94. INSTALLATION OF THIS ENGINE IN ANY NONRECREATIONAL 
VESSEL IS A VIOLATION OF FEDERAL LAW SUBJECT TO CIVIL PENALTY.''.

    Recreational vessel has the meaning given in 46 U.S.C. 2101 (25), 
but excludes ``passenger vessels'' and ``small passenger vessels'' as 
defined by 46 U.S.C. 2101 (22) and (35) and excludes vessels used solely 
for competition. In general, for this part, ``recreational vessel'' 
means a vessel that is intended by the vessel manufacturer to be 
operated primarily for pleasure or leased, rented or chartered to 
another for the latter's pleasure, excluding the following vessels:
    (1) Vessels of less than 100 gross tons that carry more than 6 
passengers (as defined in this section).
    (2) Vessels of 100 gross tons or more that carry one or more 
passengers (as defined in this section).
    (3) Vessels used solely for competition.
    Residual fuel means a petroleum product containing the heavier 
compounds that remain after the distillate fuel oils (e.g., diesel fuel 
and marine distillate fuel) and lighter hydrocarbons are distilled away 
in refinery operations.
    Round means to round numbers according to ASTM E29-02 (incorporated 
by reference in Sec. 94.5), unless otherwise specified.
    Service life means the total life of an engine. Service life begins 
when the engine is originally manufactured and

[[Page 610]]

continues until the engine is permanently removed from service.
    Specific emissions means emissions expressed on the basis of 
observed brake power, using units of g/kW-hr. Observed brake power 
measurement includes accessories on the engine if these accessories are 
required for running an emission test (except for the cooling fan). When 
it is not possible to test the engine in the gross conditions, for 
example if the engine and transmission form a single integral unit, the 
engine may be tested in the net condition. Power corrections from net to 
gross conditions will be allowed with prior approval of the 
Administrator.
    Small-volume boat builder means a boat manufacturer with fewer than 
500 employees and with annual U.S.-directed production of fewer than 100 
boats. For manufacturers owned by a parent company, these limits apply 
to the combined production and number of employees of the parent company 
and all its subsidiaries.
    Small-volume manufacturer means a manufacturer with annual U.S.-
directed production of fewer than 1,000 internal combustion engines 
(marine and nonmarine). For manufacturers owned by a parent company, the 
limit applies to the production of the parent company and all its 
subsidiaries.
    Spark-ignition means relating to a gasoline-fueled engine or other 
engines with a spark plug (or other sparking device) and with operating 
characteristics significantly similar to the theoretical Otto combustion 
cycle. Spark-ignition engines usually use a throttle to regulate intake 
air flow to control power during normal operation.
    Specified by a certificate of conformity or specified in a 
certificate of conformity means stated or otherwise specified in a 
certificate of conformity or an approved application for certification.
    Test engine means an engine in a test sample.
    Test sample means the collection of engines or vessels selected from 
the population of an engine family for emission testing.
    Tier 1 means relating to an engine subject to the Tier 1 emission 
standards listed in Sec. 94.8.
    Tier 2 means relating to an engine subject to the Tier 2 emission 
standards listed in Sec. 94.8.
    Total Hydrocarbon Equivalent means the sum of the carbon mass 
contributions of non-oxygenated hydrocarbons, alcohols and aldehydes, or 
other organic compounds that are measured separately as contained in a 
gas sample, expressed as petroleum-fueled engine hydrocarbons. The 
hydrogen-to-carbon ratio of the equivalent hydrocarbon is 1.85:1.
    Trading means the exchange of engine emission credits between credit 
holders.
    Ultimate Purchaser means, with respect to any new engine or vessel, 
the first person who in good faith purchases such new engine or vessel 
for purposes other than resale.
    United States means the States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, Guam, American Samoa, and the U.S. Virgin Islands.
    U.S.-directed production volume means the number of marine engine 
units, subject to this part, produced by a manufacturer for which the 
manufacturer has reasonable assurance that sale was or will be made to 
ultimate purchasers in the United States.
    Useful life means the period during which an engine is designed to 
properly function in terms of reliability and fuel consumption, without 
being remanufactured, specified as hours of operation and years. It is 
the period during which a new engine is required to comply with all 
applicable emission standards. (Note: Sec. 94.9(a) specifies minimum 
requirements for useful life values.)
    Vessel means a marine vessel.
    Vessel operator means any individual that physically operates or 
maintains a vessel, or exercises managerial control over the operation 
of the vessel.
    Vessel owner means the individual or company that holds legal title 
to a vessel.
    Voluntary emission recall means a repair, adjustment, or 
modification program voluntarily initiated and conducted by a 
manufacturer to remedy any emission-related defect for which

[[Page 611]]

notification 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 FR 40457, July 
13, 2005; 73 FR 37196, June 30, 2008]



Sec. 94.3  Abbreviations.

    The abbreviations of this section apply to all subparts of this part 
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 the information 
submitted pursuant to this part is entitled to confidential treatment as 
provided by 40 CFR part 2, subpart B.
    (b) Any claim of confidentiality must accompany the information at 
the time it is submitted to EPA.
    (c) To assert that information submitted pursuant to this part is 
confidential, a person or manufacturer must indicate clearly the items 
of information claimed confidential by marking, circling, bracketing, 
stamping, or otherwise specifying the confidential information. 
Furthermore, EPA requests, but does not require, that the submitter also 
provide a second copy of its submittal from which all confidential 
information has been deleted. If a need arises to publicly release 
nonconfidential information, EPA will assume that the submitter has 
accurately deleted the confidential information from this second copy.
    (d) If a claim is made that some or all of the information submitted 
pursuant to this part is entitled to confidential treatment, the 
information covered by that confidentiality claim will be disclosed by 
EPA only to the extent and by means of the procedures set forth in 40 
CFR part 2, subpart B.
    (e) Information provided without a claim of confidentiality at the 
time of submission may be made available to the public by EPA without 
further 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 this 
section. The Director of the Federal Register approved the incorporation 
by reference as prescribed in 5 U.S.C. 552(a)

[[Page 612]]

and 1 CFR part 51. Anyone may inspect copies at the U.S. EPA, Air and 
Radiation Docket and Information Center, 1301 Constitution Ave., NW., 
Room B102, EPA West Building, Washington, DC 20460 or at the National 
Archives and Records Administration (NARA). For information on the 
availability of 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 lists material from the 
American Society for Testing and Materials that we have incorporated by 
reference. The first column lists the number and name of the material. 
The second column lists the sections of this part where we reference it. 
Anyone may purchase copies of these materials from the American Society 
for Testing and Materials, 100 Barr Harbor Dr., PO Box C700, West 
Conshohocken, PA 19428. Table 1 follows:

                 Table 1 of Sec.  94.5--ASTM Materials
------------------------------------------------------------------------
           Document No. and name                  Part 94 reference
------------------------------------------------------------------------
ASTM D 86-01, Standard Test Method for       94.108
 Distillation of Petroleum Products at
 Atmospheric Pressure.
ASTM D 93-02, Standard Test Methods for      94.108
 Flash-Point by Pensky-Martens Closed Cup
 Tester.
ASTM D 129-00, Standard Test Method for      94.108
 Sulfur in Petroleum Products (General Bomb
 Method).
ASTM D 287-92 (Reapproved 2000), Standard    94.108
 Test Method for API Gravity of Crude
 Petroleum and Petroleum Products
 (Hydrometer Method).
ASTM D 445-01, Standard Test Method for      94.108
 Kinematic Viscosity of Transparent and
 Opaque Liquids (the Calculation of Dynamic
 Viscosity).
ASTM D 613-01, Standard Test Method for      94.108
 Cetane Number of Diesel Fuel Oil.
ASTM D 1319-02a, Standard Test Method for    94.108
 Hydrocarbon Types in Liquid Petroleum
 Products by Fluorescent Indicator
 Adsorption.
ASTM D 2622-98, Standard Test Method for     94.108
 Sulfur in Petroleum Products by Wavelength
 Dispersive X-ray Fluorescence Spectrometry.
ASTM D 5186-99, Standard Test Method for     94.108
 Determination of the Aromatic Content and
 Polynuclear Aromatic Content of Diesel
 Fuels and Aviation Turbine Fuels by
 Supercritical Fluid Chromatography.
ASTM E 29-02, Standard Practice for Using    94.2
 Significant Digits in Test Data to
 Determine Conformance with Specifications.
------------------------------------------------------------------------

    (b) ISO material. Table 2 of Sec. 94.5 lists material from the 
International Organization for Standardization that we have incorporated 
by reference. The first column lists the number and name of the 
material. The second column lists the section of this part where we 
reference it. Anyone may purchase copies of these materials from the 
International Organization for Standardization, Case Postale 56, CH-1211 
Geneva 20, Switzerland.
    Table 2 follows:

                  Table 2 of Sec.  94.5--ISO Materials
------------------------------------------------------------------------
           Document No. and name               40 CFR part 94 reference
------------------------------------------------------------------------
ISO 8178-1, Reciprocating internal           94.109
 combustion engines--Exhaust emission
 measurement--Part 1: Test-bed measurement
 of gaseous and particulate exhaust
 emissions, 1996.
------------------------------------------------------------------------

    (c) IMO material. Table 3 of Sec. 94.5 lists material from the 
International Maritime Organization that we have incorporated by 
reference. The first column lists the number and name of the material. 
The second column lists the section of this part where we reference it. 
Anyone may purchase copies of these materials from the International 
Maritime Organization, 4 Albert Embankment, London SE1 7SR, United 
Kingdom.
    Table 3 follows:

[[Page 613]]



                  Table 3 of Sec.  94.5--IMO Materials
------------------------------------------------------------------------
           Document No. and name               40 CFR part 94 reference
------------------------------------------------------------------------
Resolution 2--Technical Code on Control of   94.2, 94.11, 94.108,
 Emission of Nitrogen Oxides from Marine      94.109, 94.204, 94.211,
 Diesel Engines, 1997.                        94.1004.
------------------------------------------------------------------------


[68 FR 9781, Feb. 28, 2003]



Sec. 94.6  Regulatory structure.

    This section provides an overview of the regulatory structure of 
this part.
    (a) The regulations of this Part 94 are intended to control 
emissions from in-use marine engines.
    (b) The engines for which the regulations of this part (i.e., 40 CFR 
part 94) apply are specified by Sec. 94.1, and by the definitions of 
Sec. 94.2. The point at which an engine or vessel becomes subject to 
the regulations of this part is determined by the definitions of new 
marine engine and new marine vessel in Sec. 94.2. Subpart J of this 
part contains provisions exempting certain engines and vessels from the 
emission standards in this part under special circumstances.
    (c) To comply with the requirements of this part, a manufacturer 
must demonstrate to EPA that the engine meets the applicable standards 
of Sec. Sec. 94.7 and 94.8, and all other requirements of this part. 
The requirements of this certification process are described in subparts 
C and D of this part.
    (d) Subpart B of this part specifies procedures and equipment to be 
used for conducting emission tests for the purpose of the regulations of 
this part.
    (e) Subparts E, F, and H of this part specify requirements for 
manufacturers after certification; that is during production and use of 
the engines.
    (f) Subpart I of this part contains requirements applicable to the 
importation of marine engines covered by the provisions of this part.
    (g) Subpart L of this part describes prohibited acts and contains 
other enforcement provisions relating to marine engines and vessels 
covered by the provisions of this part.
    (h) Unless specified otherwise, the provisions of this part apply to 
all marine engines and vessels subject to the emission standards of this 
part.



Sec. 94.7  General standards and requirements.

    (a) Marine engines and vessels may not be equipped with a defeat 
device.
    (b) An engine may not be equipped with an emission control system 
for the purpose of complying with emission standards if such a system 
will 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 an 
unreasonable risk to public health, welfare, or safety while operating. 
For example, this would apply if the engine emits a noxious or toxic 
substance it would otherwise not emit that contributes to such an 
unreasonable risk.
    (d) Manufacturers shall ensure that all engines subject to the 
emission standards of this part are equipped with a connection in the 
engine exhaust system that is located downstream of the engine and 
before any point at which the exhaust contacts water (or any other 
cooling/scrubbing medium) for the temporary attachment of gaseous and/or 
particulate emission sampling equipment. Use good engineering judgment 
to locate the connection. This connection shall be internally threaded 
with standard pipe threads of a size not larger than one-half inch, and 
shall be closed by a pipe-plug when not in use. Equivalent connections 
are allowed. Engine manufacturers may comply with this requirement by 
providing vessel manufacturers with clear instructions explaining how to 
meet this requirement, and noting in the instructions that failure to 
comply may subject the vessel manufacturer to federal penalties. Vessel 
manufacturers are required to comply with the engine manufacturer's 
instructions.
    (e) Electronically controlled engines subject to the emission 
standards of this part shall broadcast on engine's

[[Page 614]]

controller area networks 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 apply 
until replaced by the standards of paragraph (a)(2) of this section.
    (1) Tier 1 standards. NOX emissions from model year 2004 
and later engines with displacement of 2.5 or more liters per 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 speed is at least 
130 but less than 2000 rpm, where N is the maximum test speed of the 
engine in revolutions per minute.

    (Note: Round speed-dependent standards to the nearest 0.1 g/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 marine compression-
ignition engines shall not exceed the applicable Tier 2 exhaust emission 
standards contained in Table A-1 as follows:

                                             Table A-1--Primary Tier 2 Exhaust Emission Standards (g/kW-hr)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                           THC+NOX g/kW-
   Engine Size liters/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...........  Category 2..............................            2007             7.8             5.0            0.27
15.0 <= disp. <20.0 power <3300 kW............  Category 2..............................            2007             8.7             5.0            0.50
15.0 <= disp. <20.0 power =3300 kW.  Category 2..............................            2007             9.8             5.0            0.50
20.0 <= disp. <25.0 all power levels..........  Category 2..............................            2007             9.8             5.0            0.50
25.0 <= disp. <30.0 all power levels..........  Category 2..............................            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 which the specified standards start.

    (ii) EPA has not finalized Tier 2 standards for Category 3 engines. 
EPA will promulgate final Tier 2 standards for Category 3 engines on or 
before December 17, 2009.
    (b) Exhaust emissions of oxides of nitrogen, carbon monoxide, 
hydrocarbon, and particulate matter (and other compounds, as applicable) 
shall be measured using the procedures set forth in subpart B of this 
part.
    (c) In lieu of the THC+NOX standards, and PM standards 
specified in paragraph (a) of this section, manufacturers may elect to 
include engine families in the averaging, banking, and trading program, 
the provisions of which are specified in subpart D of this part. The 
manufacturer shall then set a family emission limit (FEL) which will 
serve as the standard for that engine family. The ABT provisions of 
subpart D of this part do not apply for Category 3 engines.
    (d)(1) Naturally aspirated engines subject to the standards of this 
section shall not discharge crankcase emissions into the ambient 
atmosphere.
    (2) For engines using turbochargers, pumps, blowers, or 
superchargers for air induction, if the engine discharges crankcase 
emissions into the ambient atmosphere in use, these crankcase

[[Page 615]]

emissions shall be included in all exhaust emission measurements. This 
requirement applies only for engines subject to hydrocarbon standards 
(e.g., THC standards, NMHC standards, or THC+NOX standards).
    (3) The crankcase requirements of this paragraph (d) do not apply 
for Tier 1 engines.
    (e) Exhaust emissions from Category 1 and Category 2 propulsion 
engines 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 applicable 
standards (or FELs) when tested in accordance with the supplemental test 
procedures specified in Sec. 94.106 at loads greater than or equal to 
45 percent of the maximum power at rated speed or 1.50 times the 
applicable standards (or FELs) at loads less than 45 percent of the 
maximum power at rated speed.
    (ii) As an option, the manufacturer may choose to comply with limits 
of 1.25 times the applicable standards (or FELs) when tested over the 
whole power range in accordance with the supplemental test procedures 
specified in Sec. 94.106, instead of the limits in paragraph (e)(1)(i) 
of this section.
    (2) Recreational marine engines. (i) 1.20 times the applicable 
standards (or FELs) when tested in accordance with the supplemental test 
procedures specified in Sec. 94.106 at loads greater than or equal to 
45 percent of the maximum power at rated speed and speeds less than 95 
percent of maximum test speed, or 1.50 times the applicable standards 
(or FELs) at loads less than 45 percent of the maximum power at rated 
speed, or 1.50 times the applicable standards (or FELs) at any loads for 
speeds greater than or equal to 95 percent of the maximum test speed.
    (ii) As an option, the manufacturer may choose to comply with limits 
of 1.25 times the applicable standards (or FELs) when tested over the 
whole power range in accordance with the supplemental test procedures 
specified in Sec. 94.106, instead of the limits in paragraph (e)(2)(i) 
of this section.
    (f) The following define the requirements for low-emitting Blue Sky 
Series engines:
    (1) Voluntary standards. (i) Category 1 and Category 2 engines may 
be designated ``Blue Sky Series'' engines by meeting the voluntary 
standards listed in Table A-2, which apply to all certification and in-
use testing:

            Table A-2--Voluntary Emission Standards [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 Sky Series'' 
engines by meeting these voluntary standards that would apply to all 
certification and in-use testing:
    (A) A NOX standard of 9.0 x N-0.20 where N = 
the maximum test speed of the engine in revolutions per minute (or 4.8 
g/kW-hr for engines with maximum test speeds less than 130 rpm). (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 are subject to all 
provisions that would otherwise apply under this part.
    (3) Test procedures. Manufacturers may use an alternate procedure to 
demonstrate the desired level of emission control if approved in advance 
by the Administrator.
    (g) Standards for alternative fuels. The standards described in this 
section apply to compression-ignition engines,

[[Page 616]]

irrespective of fuel, with the following two exceptions for Category 1 
and Category 2 engines:
    (1) Engines fueled with natural gas shall comply with 
NMHC+NOX standards that are numerically equivalent to the 
THC+NOX described in paragraph (a) of this section; and
    (2) Engines fueled with alcohol fuel shall comply with 
THCE+NOX standards that are numerically equivalent to the 
THC+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 FR 68525, Dec. 
5, 2007]



Sec. 94.9  Compliance with emission standards.

    (a) The general standards and requirements in Sec. 94.7 and the 
emission standards in Sec. 94.8 apply to each new engine throughout its 
useful life period. The useful life is specified both in years and in 
hours of operation, and ends when either of the values (hours of 
operation or years) is exceeded.
    (1) The minimum useful life is:
    (i) 10 years or 1,000 hours of operation for recreational Category 1 
engines.
    (ii) 10 years or 10,000 hours of operation for commercial Category 1 
engines.
    (iii) 10 years or 20,000 hours of operation for Category 2 engines.
    (iv) 3 years or 10,000 hours of operation for Category 3 engines.
    (2) The manufacturer shall specify a longer useful life if the 
engine is designed to remain in service longer than the applicable 
minimum useful life without being rebuilt. A manufacturer's recommended 
time to remanufacture/rebuild longer than the minimum useful life is one 
indicator of a longer design life.
    (3) Manufacturers may request in the application for certification 
that we approve a shorter useful life for an engine family. We may 
approve a shorter useful life, in hours of engine operation but not in 
years, if we determine that these engines will rarely operate longer 
than the shorter useful life. If engines identical to those in the 
engine family have already been produced and are in use, the 
demonstration must include documentation from such in-use engines. In 
other cases, the demonstration must include an engineering analysis of 
information equivalent to such in-use data, such as data from research 
engines or similar engine models that are already in production. The 
demonstration must also include recommended overhaul intervals, any 
mechanical warranty offered for the engine or its components, and any 
relevant customer design specifications. The demonstration may include 
any other relevant information. The useful life value may not be shorter 
than any of the following:
    (i) 1,000 hours of operation.
    (ii) The recommended overhaul interval.
    (iii) The mechanical warranty for the engine.
    (b) Certification is the process by which manufacturers apply for 
and obtain certificates of conformity from EPA, which allows the 
manufacturer to introduce into commerce new marine engines for sale or 
use in the U.S.
    (1) Compliance with the applicable emission standards by an engine 
family shall be demonstrated by the certifying manufacturer before a 
certificate 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 in design to the 
marine engines being certified may be used for Category 2 or Category 3 
certification.
    (2) The emission values to compare with the standards shall be the 
emission values of a low hour engine, or a development engine, adjusted 
by the deterioration factors developed in accordance with the provisions 
of Sec. 94.219. Before comparing any emission value with the standard, 
round it to the same number of significant figures contained in the 
applicable standard.
    (c) Upon request by the manufacturer, the Administrator may limit 
the applicability of exhaust emission requirements of Sec. 94.8(e) as 
necessary for

[[Page 617]]

safety or to otherwise protect the 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 FR 40458, July 
13, 2005]



Sec. 94.10  Warranty period.

    (a)(1) Warranties imposed by Sec. 94.1107 for Category 1 or 
Category 2 engines shall apply for a period of operating hours equal to 
at least 50 percent of the useful life in operating hours or a period of 
years equal to at least 50 percent of the useful life in years, 
whichever comes first.
    (2) Warranties imposed by Sec. 94.1107 for Category 3 engines shall 
apply for a period of operating hours equal to at least the full useful 
life in operating hours or a period of years equal to at least the full 
useful life in years, whichever comes first.
    (b) Warranties imposed by Sec. 94.1107 shall apply for a period not 
less than any mechanical warranties provided by the manufacturer 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 engines 
subject to the standards prescribed in Sec. 94.8 and are applicable to 
the process of engine rebuilding. Engine rebuilding means to overhaul an 
engine or to otherwise perform extensive service on the engine (or on a 
portion of the engine or engine system). For the purpose of this 
definition, perform extensive service means to disassemble 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 that significantly increases the service 
life of the resultant engine.
    (b) When rebuilding an engine, portions of an engine, or an engine 
system, there must be a reasonable technical basis for knowing that the 
resultant engine is equivalent, from an emissions standpoint, to a 
certified configuration (i.e., tolerances, calibrations, 
specifications), and the model year(s) of the resulting engine 
configuration 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 motor 
vehicle engines would reasonably believe that the parts perform the same 
function with respect to emission control as the original parts; and
    (2) Any parameter adjustment or design element change is made only:
    (i) In accordance with the original engine manufacturer's 
instructions; or
    (ii) Where data or other reasonable technical basis exists that such 
parameter adjustment or design element change, when performed on the 
engine or similar engines, is not expected to adversely affect in-use 
emissions.
    (c) When an engine is being rebuilt and remains installed or is 
reinstalled in the same vessel, it must be rebuilt to a configuration of 
the same or later model year as the original engine. When an engine is 
being replaced, the replacement engine must be an engine of (or rebuilt 
to) a certified configuration that is equivalent, from an emissions 
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 diagnosing 
and responding appropriately to the diagnostic codes, regardless of 
whether the systems are installed to satisfy requirements in Sec. 
94.211 or for other reasons and regardless of form or interface. 
Diagnostic systems must be free of all such codes when the rebuilt 
engine is returned to service. Such signals may not be rendered 
inoperative during the rebuilding process.
    (e)(1) When conducting a rebuild, all critical emission-related 
components listed in Appendix I of this part not otherwise addressed by 
paragraphs (b) through (d) of this section must be checked and cleaned, 
adjusted, repaired, or replaced as necessary, following manufacturer 
recommended practices.
    (2) During the installation of a rebuilt engine, all critical 
emission-related components listed in Appendix I of this part not 
otherwise addressed by

[[Page 618]]

paragraphs (b) through (d) of this section must be checked as necessary, 
following manufacturer recommended practices.
    (f) Records shall be kept by parties conducting activities included 
in paragraphs (b) through (e) of this section. At minimum the records 
shall include the hours of operation at the time of rebuild, a listing 
of work performed on the engine and emission-related control components 
(including a listing of parts and components used, engine parameter 
adjustments, emission-related codes or signals responded to and reset), 
and work performed under paragraph (e) of this section.
    (1) Parties may keep records in whatever format or system they 
choose as long as the records are understandable to an EPA enforcement 
officer or can be otherwise provided to an EPA enforcement officer in an 
understandable format when requested.
    (2) Parties are not required to keep records of information that is 
not reasonably available through normal business practices including 
information on activities not conducted by themselves or information 
that they cannot reasonably access.
    (3) Parties may keep records of their rebuilding practices for an 
engine family rather than on each individual engine rebuilt in cases 
where those rebuild practices are followed routinely.
    (4) Records must be kept for a minimum of two years after the engine 
is rebuilt.
    (g) For Category 3 engines, the owner and operator shall also comply 
with the recordkeeping requirements in the Annex VI Technical Code 
(incorporated by reference at Sec. 94.5) regarding the Engine 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 number of 
calendar years or model years. These provisions supercede the other 
provisions of this part. The provisions of this section do not apply for 
Category 3 engines.
    (a) Compliance date of standards. Certain companies may delay 
compliance with emission standards. Companies wishing to take advantage 
of this provision must inform the Designated Officer of their intent to 
do so in writing before the date that compliance with the standards 
would otherwise be mandatory.
    (1) Post-manufacture marinizers may elect to delay the model year of 
the Tier 2 standards for commercial engines as specified in Sec. 94.8 
by one year for each engine family.
    (2) Small-volume manufacturers may elect to delay the model year of 
the Tier 2 standards for recreational engines as specified in Sec. 94.8 
by five years for each engine family.
    (b) Early banking of emission credits. (1) A manufacturer may 
optionally certify engines manufactured before the date the Tier 2 
standards take effect to earn emission credits under the averaging, 
banking, and trading program. Such optionally certified engines are 
subject to all provisions relating to mandatory certification and 
enforcement described in this part. Manufacturers may begin earning 
credits 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 engines 
prior to the applicable effective compliance date of the applicable 
standard (i.e., the effective compliance date in Sec. 94.8(a), as 
applicable), relative to baseline emission rates.
    (3)(i) THC+NOX credits generated under this paragraph (b) 
shall be calculated as specified in Sec. 92.305, except that the 
baseline emission rate may be either the applicable standard or a 
measured THC+NOX baseline level for the configuration with 
the lowest NOX emission rate in the applicable engine family. 
The additional credits resulting from using a measured baseline (instead 
of the applicable standard) shall be discounted by 10 percent. This 
discount does not apply to the portion of the credits resulting from the 
engine's emissions being below the applicable standard. Baseline 
emission rates may not exceed the IMO NOX limits.
    (ii) PM credits generated under this paragraph (b) shall be 
calculated as specified in Sec. 94.305, except that the applicable 
standard may be replaced by a measured PM baseline emission rate for the 
configuration with the lowest

[[Page 619]]

NOX emission rate in the applicable engine family that is 
approved in advance by the Administrator. The additional credits 
resulting from using a measured baseline (instead of the applicable 
standard) shall be discounted by 10 percent. This discount does not 
apply to the portion of the credits resulting from the engine's 
emissions being below the applicable standard.
    (4)(i) For post-manufacture marinizers, measured baseline emission 
levels may be based on emissions from a single engine for each engine 
family.
    (ii) For all other manufacturers, measured baseline emission levels 
must be based on the average of emissions from at least three engines 
for each engine family.
    (iii) The Administrator must approve any measured baselines in 
advance.
    (5) For an engine to be eligible to generate early credits under 
this paragraph (b), its certified emission levels for all pollutants 
must be below the Tier 2 standards listed in Sec. 94.8, with the 
following exception: PMMs may include in this early credit program 
Category 1 marine engines with certified emissions above the Tier 2 
standards listed in Sec. 94.8. Early credits generated by Category 1 
marine engines with certified emissions above the Tier 2 standards 
listed in Sec. 94.8 may not be used for model year 2008 or later 
engines.
    (c) Testing of Category 1 engines subject to the requirements of 
this part that is conducted by the Administrator shall be performed 
using test fuels that meet the specifications in Sec. 94.108 and have a 
sulfur content no higher than 0.20 weight percent, unless the PM 
emission rates are corrected for the effect of a higher fuel sulfur 
content.
    (d) Post-manufacture marinizers may import an uncertified engine for 
marinization, in cases where the engine in the final marinized 
configuration is not subject to the standards of this part because:
    (1) The model year of the marinized engine is prior to the first 
model year for which engines of that size are subject to the standards;
    (2) The post-manufacture marinizer is marinizing the engine under 
paragraph (a) of this section; or
    (3) The post-manufacture marinizer is granted hardship relief from 
the Tier 2 standards under Sec. 94.209(c).
    (e) Compliance date of NTE requirements (1) Notwithstanding the 
other provisions of this part, the requirements of Sec. 94.8(e) for 
commercial marine engines start with 2010 model year engines for post-
manufacture marinizers and 2007 model year engines for all other engine 
manufacturers.
    (2) Notwithstanding the other provisions of this part, the 
requirements of Sec. 94.8(e) for recreational marine engines start with 
2012 model year engines for post-manufacture marinizers and 2009 model 
year engines for all other engine manufacturers.
    (f) Manufacturers may submit test data collected using the Annex VI 
test procedures to show compliance with Tier 1 standards for model years 
before 2007. Note: Starting in 2007, EPA may approve a manufacturer's 
request to continue using alternate procedures under Sec. 94.102(c), as 
long as the manufacturer satisfies EPA that the differences in testing 
will not affect NOX emission rates.
    (g) Flexibility for engines over 560kW. Notwithstanding the other 
provisions of this part, manufacturers may choose to delay certification 
of marine engines with less than 2.5 liters per cylinder and rated power 
above 560 kW, that are derived from a land-based nonroad engine with a 
rated power greater than 560 kW, if they do all of the following:
    (1) Certify all of their applicable marine engines with less than 
2.5 liters per cylinder and rated power above 560 kW to a NOX 
standard of 6.4 g/kW-hr for model years 2008 through 2012.
    (2) Notify EPA in writing before 2004 of their intent to use this 
provision. This notification must include a signed statement certifying 
that the manufacturer will comply with all the provisions of this 
paragraph (g).
    (3) Add a permanent, legible label, written in block letters in 
English, to a readily visible part of each engine exempted under this 
paragraph (f). This label must include at least the following items:
    (i) The label heading ``EMISSION CONTROL INFORMATION''.

[[Page 620]]

    (ii) Your corporate name and trademark.
    (iii) Engine displacement (in liters), rated power, and model year 
of the engine or whom to contact for further information.
    (iv) The statement ``THIS ENGINE IS EXEMPT UNDER 40 CFR 94.12(g) 
FROM EMISSION STANDARDS AND RELATED REQUIREMENTS.''.
    (h) Flexibility for small-volume boat builders. Notwithstanding the 
other provisions of this part, manufacturers may sell uncertified 
recreational engines to small-volume boat builders during the first five 
years for which the emission standards in Sec. 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 average annual 
production for the three years prior to the general applicability of the 
recreational engine standards in Sec. 94.8, except as allowed in 
paragraph (h)(2) of this section.
    (2) Small-volume boat builders may exceed the production limits in 
paragraph (h)(1) of this section, provided they do not exceed 20 boats 
during the five-year period or 10 boats in any single calendar year. 
This does not apply to boats powered by engines with displacement 
greater than 2.5 liters per cylinder.
    (3) Small-volume boat builders must keep records of all the boats 
and engines produced under this paragraph (h), including boat and engine 
model numbers, serial numbers, and dates of manufacture. Records must 
also include information verifying compliance with the limits in 
paragraph (h)(1) or (2) of this section. Keep these records until at 
least two full years after you no longer use the provisions in this 
paragraph (h).
    (4) Manufacturers must add a permanent, legible label, written in 
block letters in English, to a readily visible part of each engine 
exempted under this paragraph (h).
    This label must include at least the following items:
    (i) The label heading ``EMISSION CONTROL INFORMATION''.
    (ii) Your corporate name and trademark.
    (iii) Engine displacement (in liters), rated power, and model year 
of the engine or whom to contact for further information.
    (iv) The statement ``THIS ENGINE IS EXEMPT UNDER 40 CFR 94.12(h)
    FROM EMISSION STANDARDS AND RELATED REQUIREMENTS.''.
    (i) Early use of future provisions. For model years 2009 through 
2013, certain marine engines will be subject to the requirements of this 
part 94 while others will be subject to the requirements of 40 CFR part 
1042. Manufacturers may ask for flexibility in making the transition to 
the new regulations as follows:
    (1) You may ask to use a combination of the test procedures of this 
part and those of 40 CFR part 1042. This might include the early use of 
the duty cycles and NTE specifications that apply for Tier 3 or Tier 4 
engines. We will approve your request only if you show us that it does 
not affect your ability to demonstrate compliance with the applicable 
emission standards. This generally requires that the combined procedures 
would result in emission measurements at least as high as those that 
would be measured using the procedures specified in this part. 
Alternatively, you may demonstrate that the combined effects of the 
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 of 40 
CFR parts 1042 and 1068 instead of the equivalent requirements of this 
part.

[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 FR 9215, Feb. 
27, 2004; 70 FR 40458, July 13, 2005; 73 FR 37196, June 30, 2008]



                        Subpart B_Test Procedures



Sec. 94.101  Applicability.

    Provisions of this subpart apply for testing performed by the 
Administrator or a manufacturer.

[[Page 621]]



Sec. 94.102  General provisions.

    (a) The test procedures specified in this part are intended to 
produce emission measurements that are equivalent to emission 
measurements that would result from emission tests performed during in-
use operation using the same engine configuration installed in a vessel.
    (b) Test procedures otherwise allowed by the provisions of this 
subpart shall not be used where such procedures are not consistent with 
good engineering practice and the regulatory goal specified in paragraph 
(a) of this section.
    (c) Alternate test procedures may be used if shown to yield 
equivalent 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 the 
test procedures specified in 40 CFR part 89, except as otherwise 
specified in this subpart.
    (b) The Administrator may specify changes to the provisions of 
paragraph (a) of this section that are necessary to comply with the 
general provisions of Sec. 94.102.



Sec. 94.104  Test procedures for Category 2 marine engines.

    (a) Gaseous and particulate emissions shall be measured using the 
test procedures specified in 40 CFR part 92, except as otherwise 
specified in this subpart.
    (b)(1) The requirements of 40 CFR part 92 related to charge air 
temperatures, engine speed and load, and engine air inlet restriction 
pressures do not apply for marine engines.
    (2) For marine engine testing, charge air temperatures, engine speed 
and load, and engine air inlet restriction pressures shall be 
representative 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 of 
paragraph (a) of this section that are necessary to comply with the 
general 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 with the 
emission standards of Sec. 94.8, except for those in Sec. 94.8(e), 
engines shall be tested using the appropriate duty cycles described in 
this section.
    (b) General cycle. Propulsion engines that are used with (or 
intended to be used with) fixed-pitch propellers, propeller-law 
auxiliary engines, and any other engines for which the other duty cycles 
of this section do not apply, shall be tested using the duty cycle 
described in the following Table B-1:

                                      Table B-1--General Marine Duty Cycle
----------------------------------------------------------------------------------------------------------------
                                                                 Engine
                                                               speed \1\    Percent of    Minimum
                          Mode No.                            (percent of    maximum      time in     Weighting
                                                                maximum     test power      mode       factors
                                                              test speed)      \2\       (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: 2 percent of engine maximum value.

    (c) Variable-pitch and electrically coupled propellers. (1) 
Constant-speed propulsion engines that are used with (or intended to be 
used with) variable-pitch propellers or with electrically coupled 
propellers shall be tested using the duty cycle described in the 
following Table B-2:

[[Page 622]]



                           Table B-2--Duty Cycle for Constant-Speed Propulsion Engines
----------------------------------------------------------------------------------------------------------------
                                                                 Engine
                                                               speed \1\    Percent of    Minimum
                          Mode No.                            (percent of    maximum      time in     Weighting
                                                                maximum     test power      mode       factors
                                                              test speed)      \2\       (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 emission 
standards of Sec. 94.8, variable-speed propulsion engines that are used 
with (or intended to be used with) variable-pitch propellers or with 
electrically coupled propellers shall be tested using the duty cycle 
described in Table B-3, which follows:

 Table B-3--Duty Cycle for Variable Speed Propulsion Engines Used on Non-Propeller Law Vessels and for Variable
                                             Speed Auxiliary Engines
----------------------------------------------------------------------------------------------------------------
                                                                            Percent of    Minimum
                                                                             maximum      time in     Weighting
       Test segment           Mode No.           Engine speed \1\          test torque      mode       factors
                                                                               \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 speed is specified by the manufacturer.
\2\ Torque (non-idle): 2 percent of engine maximum value. Torque (idle): minimum fueling
  rate Load less than 5 percent of peak torque.

    (d) Auxiliary. For the purpose of determining compliance with the 
emission standards of Sec. 94.8:
    (1) Constant speed auxiliary engines shall be tested using the duty 
cycle described in Table B-4, which follows:

                           Table B-4--Duty Cycle for Constant-Speed Auxiliary Engines
----------------------------------------------------------------------------------------------------------------
                                                                            Percent of    Minimum
                                                                             maximum      time in     Weighting
            Mode No.                          Engine speed \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.

    (2) Variable speed auxiliary engines shall be tested using the duty 
cycle described in Table B-3 in paragraph (c)(2) of this section.
    (e) Recreational. For the purpose of determining compliance with the 
emission standards of Sec. 94.8, recreational engines shall be tested 
using the duty cycle described in Table B-5, which follows:

[[Page 623]]



                                    Table B-5--Recreational Marine Duty Cycle
----------------------------------------------------------------------------------------------------------------
                                                      Engine
                                                    speed\(1)\      Percent of     Minimum time
                    Mode No.                        (percent of    maximum test       in mode        Weighting
                                                   maximum test     power\(2)\       (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 marine 

engines.

    This section describes the test procedures for supplemental testing 
conducted to determine compliance with the exhaust emission requirements 
of Sec. 94.8(e)(1). In general, the supplemental test procedures are 
the same as those otherwise specified by this subpart, except that they 
cover any speeds, loads, ambient conditions, and operating parameters 
that may be experienced in use. The test procedures specified by other 
sections in this subpart also apply to these tests, except as specified 
in this section.
    (a) Notwithstanding other provisions of this subpart, testing 
conducted to determine compliance with the exhaust emission requirements 
of Sec. 94.8(e) may be conducted:
    (1) At any speed and load (or any combination of speeds and loads 
that is nominally steady-state) within the applicable Not To Exceed Zone 
specified in paragraph (b) of this section;
    (2)(i) Without correction, at any intake air temperature between 
13[deg]C and 35[deg]C (or between 13[deg]C and 30[deg]C for engines not 
drawing intake air directly from a space that could be heated by the 
engine);
    (ii) Without correction at any ambient water temperature (or 
equivalent) between 5[deg]C and 27[deg]C;
    (iii) Without correction at any ambient humidity between 7.1 and 
10.7 grams of moisture per kilogram of dry air; and
    (3) With a continuous sampling period not less than 30 seconds in 
duration.
    (b) The specified Not to Exceed Zones for marine engines are defined 
as follows. These Not to Exceed Zones apply, unless a modified zone is 
established under paragraph (c) of this section.
    (1) For commercial Category 1 engines certified using the duty cycle 
specified in Sec. 94.105(b), the Not to Exceed zones are 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 all operation below 
25% of maximum power at rated speed and excluding all operation below 
63% of maximum test speed.
    (ii) This zone is divided into two subzones, one above and one below 
45% of maximum power at rated speed.
    (iii) SPD in paragraph (b)(1)(i) of this section refers to percent 
of maximum test speed.
    (iv) See Figure B-1 for an illustration of this Not to Exceed zone 
which follows:

[[Page 624]]

[GRAPHIC] [TIFF OMITTED] TR29DE99.002

    (2) For Category 2 engines certified using the duty cycle specified 
in Sec. 94.105(b), the Not to Exceed zones are defined 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 all operation below 
25% of maximum power at rated speed and excluding all operation below 
63% of maximum test speed.
    (ii) This zone is divided into two subzones, one above and one below 
45% of maximum power at rated speed.

[[Page 625]]

    (iii) SPD in paragraph (b)(2)(i) of this section refers to percent 
of maximum test speed.
    (iv) See Figure B-2 in paragraph (b)(3) of this section for an 
illustration of this Not to Exceed zone.
    (3) For engines certified using the duty cycle specified in Sec. 
94.105(c)(2), the Not to Exceed zones are defined as follows:
[GRAPHIC] [TIFF OMITTED] TR29DE99.003


[[Page 626]]


    (i) The Not to Exceed zone is the region above the curve power = 
0.85 SPD \4\, excluding all operation below 25% of maximum power at 
rated speed and excluding all operation below 63% of maximum test.
    (ii) This zone is divided into two subzones, one above and one below 
45% of maximum power at rated speed.
    (iii) SPD in paragraph (b)(3)(i) of this section refers to percent 
of maximum test speed.
    (iv) See Figure B-3 for an illustration of this Not to Exceed zone:

[[Page 627]]

[GRAPHIC] [TIFF OMITTED] TR29DE99.004

    (4) For engines certified using the duty cycle specified in Sec. 
94.105(c)(1), the Not to Exceed zone is defined as any load greater than 
or equal to 25 percent of maximum power at rated speed, and any speed at 
which the engine operates in use.
    (5) For recreational marine engines certified using the duty cycle 
specified in Sec. 94.105(e), the Not to Exceed zones are defined as 
follows:

[[Page 628]]

    (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 all operation below 
25% of maximum power at rated speed and excluding all operation below 
63% of maximum test speed.
    (ii) This zone is divided into three subzones, one below 45% of 
maximum power at maximum test speed; one above 95% of maximum test 
speed; and a third area including all of the remaining area of the NTE 
zone.
    (iii) SPD in paragraph (b)(5)(i) of this section refers to percent 
of maximum test speed.
    (iv) See Figure B-4 for an illustration of this Not to Exceed zone 
as follows:
[GRAPHIC] [TIFF OMITTED] TR08NO02.003


[[Page 629]]


    (c)(1) Upon request by the manufacturer, the Administrator may 
specify a narrower Not to Exceed Zone for an engine family at the time 
of certification, provided that the narrower Not to Exceed Zone includes 
all speeds greater than 63 percent of maximum test speed and loads 
greater than 25 percent of maximum power at rated speed at which the 
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 Zone for an 
engine family, provided that the broader Not to Exceed Zone includes 
only speeds greater than 63 percent of maximum test speed and loads 
greater than 25 percent of maximum power at rated speed at which the 
engines are expected to normally operate in use.
    (d) Testing conducted to determine compliance with the exhaust 
emission requirements of Sec. 94.8(e) may be conducted at any ambient 
air temperature or humidity outside the ranges specified in paragraph 
(a)(2) of this section, provided that emission measurements are 
corrected to be equivalent to measurements within the ranges specified 
in paragraph (a)(2) of this section. Correction of emission measurements 
made in accordance with this paragraph (d) shall be made in accordance 
with good engineering practice. The measurements shall be corrected to 
be within the range using the minimum possible correction.
    (e) Testing conducted under this section may not include engine 
starting.

[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 determine maximum test 
speed from a lug curve. This maximum test speed is used in Sec. Sec. 
94.105, 94.106, and Sec. 94.109 (including the tolerances for engine 
speed specified in Sec. 94.105).
    (b) Generation of lug curve. Prior to beginning emission testing, 
generate maximum measured brakepower versus engine speed data points 
using the applicable method specified in 40 CFR 1065.510. These data 
points form the lug curve. It is not necessary to generate the entire 
lug curve. For the portion of the curve where power increases with 
increasing speed, it is not necessary to generate points with power less 
than 90 percent of the maximum power value. For the portion of the curve 
where power decreases with increasing speed, it is not necessary to 
generate points with power less than 75 percent of the maximum 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 them by 
the maximum power value identified in paragraph (b)(1) of this section, 
and multiplying the resulting values by 100.
    (3) Normalize the engine speed values of the lug curve by dividing 
them by the speed at which maximum power occurs, which is identified in 
paragraph (b)(1) of this section, and multiplying the resulting values 
by 100.
    (4) Maximum engine power is located on the normalized lug curve at 
100 percent power and 100 percent speed.
    (d) Determination of maximum test speed. Calculate the maximum test 
speed from the speedfactor analysis described in this paragraph (d).
    (1) For a given combination of engine power and speed (i.e., a given 
power/speed point), the speedfactor is the distance to the normalized 
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 the 
lug curve, and determine the maximum value.
    (3) Maximum test speed is the speed at which the maximum value for 
the speedfactor occurs.
    (e) For constant-speed engines, rated speed is the maximum test 
speed.
    (f) For Category 3 engines, manufacturers may choose to set the 
maximum

[[Page 630]]

test speed at the maximum in-use engine speed instead of the 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 for testing 
Category 1 and Category 2 marine engines designed to operate on 
distillate diesel fuel shall be clean and bright, with pour and cloud 
points adequate for operability. The diesel fuel may contain nonmetallic 
additives as follows: cetane improver, metal deactivator, antioxidant, 
dehazer, antirust, pour depressant, dye, dispersant, and biocide. The 
diesel fuel shall also meet the specifications (as determined using 
methods incorporated by reference at Sec. 94.5) in Table B-5 of this 
section, or substantially equivalent specifications approved by the 
Administrator, as follows:

               Table B-5--Federal Test Fuel Specifications
------------------------------------------------------------------------
              Item                 Procedure \1\            Value
------------------------------------------------------------------------
Cetane.........................  ASTM D 613-01....  40-48
Distillation Range:
    Initial boiling point,       ASTM D 86-01.....  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 D 5186-99.
    Olefins and Saturates        ASTM D 1319-02a..  Remainder
     (paraffins and
     napththenes).
Total Sulfur, weight percent...  ASTM D 129-00 or   0.03-0.80
                                  D 2622-98.
Viscosity at 38 [deg]C,          ASTM D 445-01....  2.0-3.2
 centistokes.
------------------------------------------------------------------------
\1\ All ASTM standards are incorporated by reference in Sec.  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 to 
show that only the designated fuel would be used in service; and
    (iii) Use of a fuel listed under paragraph (a)(1) of this section 
would have a detrimental effect on emissions or durability; and
    (iv) Written approval from the Administrator of the fuel 
specifications 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 application 
for certification.
    (4) Manufacturers may perform testing using the low-sulfur diesel 
test fuel or the ultra low-sulfur diesel test fuel specified in 40 CFR 
part 1065.
    (b) Other fuel types. For Category 1 and Category 2 engines that are 
designed to be capable of using a type of fuel (or mixed fuel) instead 
of or in addition to distillate diesel fuel (e.g., natural gas, 
methanol, or nondistillate diesel), and that are expected to use that 
type of fuel (or mixed fuel) in service:
    (1) A commercially available fuel of that type shall be used for 
exhaust emission testing. The manufacturer shall propose for the 
Administrator's approval a set of test fuel specifications that take 
into account the engine design and the properties of commercially 
available fuels. The Administrator may require testing on each fuel if 
it is designed to operate on more than one fuel. These test fuel 
specifications shall be reported in the application for certification.
    (2) [Reserved]
    (c) Service accumulation fuel. Fuel used for service accumulation 
shall be representative of the typical fuel expected to be used by the 
engines in service.
    (d) Correction for sulfur--(1) High sulfur fuel. (i) Particulate 
emission measurements from Category 1 or Category

[[Page 631]]

2 engines without exhaust aftertreatment obtained using a diesel fuel 
containing more than 0.40 weight percent sulfur may be adjusted to a 
sulfur content of 0.40 weight percent.
    (ii) Adjustments to the particulate measurement for using high 
sulfur 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 measurements from 
Category 1 or Category 2 engines without exhaust aftertreatment obtained 
using diesel fuel containing less than 0.03 weight percent sulfur shall 
be adjusted to a sulfur content of 0.20 weight percent.
    (ii) Adjustments to the particulate measurement for using ultra low-
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

    (e) Test fuel for Category 3 engines. For testing Tier 1 engines, 
use test fuels meeting the specifications listed in the Annex VI 
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; 73 FR 37196, June 30, 2008]



Sec. 94.109  Test procedures for Category 3 marine engines.

    (a) Gaseous emissions shall be measured using the test cycles and 
procedures specified by Section 5 of the Annex VI Technical Code 
(incorporated by reference in Sec. 94.5), except as otherwise specified 
in this paragraph (a).
    (1) The inlet air and exhaust restrictions shall be set at the 
average in-use levels.
    (2) Measurements are valid only for sampling periods in which the 
temperature of the charge air entering the engine is within 3 [deg]C of 
the temperature that would occur in-use under ambient conditions 
(temperature, pressure, and humidity) identical to the test conditions. 
You may measure emissions within larger discrepancies, but you may not 
use those measurements to demonstrate compliance.
    (3) Engine coolant and engine oil temperatures shall be equivalent 
to the temperatures that would occur in-use under ambient conditions 
identical to the test conditions.
    (4) Exhaust flow rates shall be calculated using measured fuel flow 
rates.
    (5) Standards used for calibration shall be traceable to NIST 
standards. (Other national standards may be used if they have been shown 
to be equivalent to NIST standards.)
    (6) Certification tests may be performed at any representative 
pressure and humidity levels. Certification tests may be performed at 
any ambient air temperature from 13 [deg]C to 30 [deg]C and any charge 
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 of the Annex VI 
Technical Code. Correct emissions for test conditions using the 
corrections specified in section 5.12.3 of the Annex VI Technical Code.
    (7) Test cycles shall be denormalized based on the maximum test 
speed described in Sec. 94.107.
    (b) Analyzers meeting the specifications of either 40 CFR part 1065, 
subpart C, or ISO 8178-1 (incorporated by reference in Sec. 94.5) shall 
be used to measure THC and CO.
    (c) The Administrator may specify changes to the provisions of 
paragraph (a) of this section that are necessary to comply with the 
general provisions of Sec. 94.102.

[68 FR 9785, Feb. 28, 2003, as amended at 70 FR 40458, July 13, 2005]



                   Subpart C_Certification Provisions



Sec. 94.201  Applicability.

    (a) The requirements of this subpart are applicable to manufacturers 
of engines subject to the standards of subpart A of this part.

[[Page 632]]

    (b) In a given model year, you may ask us to approve the use of 
procedures for certification, labeling, reporting and recordkeeping, or 
other administrative requirements specified in 40 CFR part 1042 or 1068 
instead of the comparable procedures specified in this part 94. We may 
approve the request as long as it does not prevent us from ensuring that 
you fully comply with the intent of this part.

[73 FR 59184, Oct. 8, 2008]



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 applicable 
standards and requirements, the manufacturer shall submit to the 
Administrator a completed application for a certificate of conformity.
    (b) The application shall be approved and signed by the authorized 
representative of the manufacturer.
    (c) The application shall be updated and corrected by amendment, 
where necessary, as provided for in Sec. 94.210 to accurately 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 not 
limited to, the engine family specifications, the provisions of which 
are contained in Sec. 94.204.
    (ii) A list of distinguishable configurations to be included in the 
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 or after 
top-dead-center), and any functional dependence of such timing on other 
operational parameters (e.g., engine coolant temperature or engine 
speed);
    (iii) Each auxiliary emission control device (AECD); and
    (iv) All fuel system components to be installed on any production or 
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 of operation 
necessary to accumulate service hours on the test engine and stabilize 
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 associated production 
tolerances.
    (ii) The physically adjustable range (Note: if this is different 
than 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 to establish 
each physically adjustable range.
    (v) Information relating to the reason that the physical limits or 
stops used to establish the physically adjustable range of each 
parameter, or any other means used to inhibit adjustment, are the most 
effective means possible of preventing adjustment of parameters to 
settings outside the manufacturer's specified adjustable ranges on in-
use engines.
    (7) For families participating in the averaging, banking, and 
trading program, the information specified in subpart D of this part.
    (8) Projected U.S.-directed production volume information for each 
configuration.
    (9) A description of the test equipment and fuel used.
    (10) All test data obtained by the manufacturer on each test engine.
    (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, in 
accordance with Sec. 94.218.
    (13) All information required for EPA to interpret all messages and 
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 may reference publicly 
released controller area network standards where

[[Page 633]]

applicable. The format of this information shall be provided in a format 
similar to publicly released documents pertaining to controller area 
network standards.)
    (14) (i) For Category 1 and Category 2 engines, a statement that the 
all the engines included in the engine family comply with the Not To 
Exceed standards specified in Sec. 94.8(e) when operated under all 
conditions which may reasonably be expected to be encountered in normal 
operation and use; the manufacturer also must provide 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 engines included 
in the engine family comply with all requirements of this part and the 
Clean Air Act.
    (16) A statement indicating duty-cycle and application of the engine 
(e.g., used to propel planing vessels, use to propel vessels with 
variable-pitch propellers, constant-speed auxiliary, recreational, 
etc.).
    (e) At the Administrator's request, the manufacturer shall supply 
such additional information as may be required to evaluate the 
application.
    (f)(1) If the manufacturer submits some or all of the information 
specified in paragraph (d) of this section in advance of its full 
application for certification, the Administrator shall review the 
information and make the determinations required in Sec. 94.208 (d) 
within 90 days of the manufacturer's submittal.
    (2) The 90-day decision period is exclusive of any elapsed time 
during which EPA is waiting for additional information requested from a 
manufacturer regarding an adjustable parameter (the 90-day period 
resumes upon receipt of the manufacturer's response). For example, if 
EPA requests additional information 30 days after the manufacturer 
submits information under paragraph (f)(1) of this section, then the 
Administrator would make a determination within 60 days of the receipt 
of the requested information from the manufacturer.
    (g)(1) The Administrator may modify the information submission 
requirements of paragraph (d) of this section, provided that all of the 
information specified therein is maintained by the manufacturer as 
required by Sec. 94.215, and amended, updated, or corrected as 
necessary.
    (2) For the purposes of this paragraph (g), Sec. 94.215 includes 
all information specified in paragraph (d) of this section, whether or 
not such information is actually submitted to the Administrator for any 
particular model year.
    (3) The Administrator may review a manufacturer's records at any 
time. At the Administrator's discretion, this review may take place 
either at the manufacturer's facility or at another facility designated 
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 grouping 
of engines into engine families.
    (a) Manufacturers shall divide their engines into groupings of 
engines which are expected to have similar emission characteristics 
throughout their useful life. Each group shall be defined as a separate 
engine family.
    (b) For Category 1 marine engines, the following characteristics 
distinguish engine families:
    (1) Fuel;
    (2) Cooling method (including cooling medium);
    (3) Method of air aspiration;
    (4) Method of exhaust aftertreatment (for example, catalytic 
converter or particulate trap);
    (5) Combustion chamber design;
    (6) Bore;
    (7) Stroke;
    (8) Number of cylinders, (engines with aftertreatment devices only);
    (9) Cylinder arrangement (engines with aftertreatment devices only);
    (10) Fuel system configuration; and
    (11) Class (commercial or recreational).
    (c) For Category 2 marine engines, the following 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

[[Page 634]]

procedure(s) employed to maintain engine temperature within desired 
limits (thermostat, on-off radiator fan(s), radiator shutters, 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, timing 
characteristics (i.e., the deviation of the timing curves from the 
optimal fuel economy timing curve must be similar in degree);
    (8) The combustion chamber configuration and the surface-to-volume 
ratio of the combustion chamber when the piston is at top dead center 
position, using nominal combustion chamber dimensions;
    (9) The location of the piston rings on the piston;
    (10) The method of air aspiration (turbocharged, supercharged, 
naturally aspirated, Roots blown);
    (11) The turbocharger or supercharger general performance 
characteristics (e.g., approximate boost pressure, approximate response 
time, approximate size relative to engine displacement);
    (12) The type of air inlet cooler (air-to-air, air-to-liquid, 
approximate degree to which inlet air is cooled);
    (13) The intake manifold induction port size and configuration;
    (14) The type of fuel and fuel system configuration;
    (15) The configuration of the fuel injectors and approximate 
injection pressure;
    (16) The type of fuel injection system controls (i.e., mechanical or 
electronic);
    (17) The type of smoke control system;
    (18) The exhaust manifold port size and configuration; and
    (19) The type of exhaust aftertreatment system (oxidation catalyst, 
particulate trap), and characteristics of the aftertreatment system 
(catalyst loading, converter size vs engine size).
    (d) Upon request by the manufacturer, engines that are eligible to 
be included in the same engine family based on the criteria in paragraph 
(b) or (c) of this section may be divided into different engine 
families. This request must be accompanied by information the 
manufacturer believes supports the use of these different engine 
families.
    (e) Upon request by the manufacturer, the Administrator may allow 
engines that would be required to be grouped into separate engine 
families based on the criteria in paragraph (b) or (c) of this section 
to be grouped into a single engine family if the manufacturer 
demonstrates that the engines will have similar emission 
characteristics; however, recreational and commercial engines may not be 
grouped in the same engine family. This request must be accompanied by 
emission information supporting the appropriateness of such combined 
engine families.
    (f) Category 3 engines shall be grouped into engine families based 
on the criteria specified in Section 4.3 of the Annex VI Technical Code 
(incorporated by reference in Sec. 94.5), except as allowed 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 to 
enable the engine to conform to the standards contained in this part:
    (1) Shall not cause a violation of the general standards of Sec. 
94.7.
    (2) Shall function during all in-use operation, except as otherwise 
allowed by this part.
    (b)(1) Category 1 marine engines equipped with adjustable parameters 
must comply with all requirements of this subpart for any adjustment in 
the physically adjustable range.
    (2) Category 2 and Category 3 marine engines equipped with 
adjustable parameters must comply with all requirements of this subpart 
for any adjustment in the approved adjustable range.
    (c) The Administrator may require that adjustable parameters be set 
to any specification within its adjustable range for certification, 
selective enforcement audit, or in-use testing to

[[Page 635]]

determine compliance with the requirements of this subpart.
    (d) In specifying the adjustable range of each adjustable parameter 
on a new engine, the manufacturer, shall:
    (1) Ensure that safe engine operating characteristics are available 
within that range, as required by section 202(a)(4) of the Clean Air 
Act, taking into consideration the production tolerances; and
    (2) To the maximum extent practicable, limit the physical range of 
adjustability to that which is necessary for proper operation of the 
engine.
    (e) Tier 1 Category 3 marine engines shall be adjusted according to 
the manufacturer's specifications for testing.
    (f) For Category 3 marine engines, manufacturers must specify in the 
maintenance instructions how to adjust the engines to achieve emission 
performance equivalent to the performance demonstrated under the 
certification test conditions. This must address all necessary 
adjustments, including those required to address differences in fuel 
quality or ambient temperatures. For example, equivalent emissions 
performance can be measured relative to optimal engine performance that 
could be achieved in the absence of emission standards (i.e., the 
calibration that result in the lowest fuel consumption and/or maximum 
firing pressure). In this example, adjustments that achieved the same 
percent reduction in NOX emissions from the optimal 
calibration would be considered to be equivalent. Alternatively, if the 
engine uses injection timing retard and EGR to reduce emissions, then 
retarding timing the same number of degrees (relative to optimal engine 
performance) and using the same rate of EGR at the different conditions 
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 the 
applicable test procedures, and submit to the Administrator the 
information required by this section: Provided, that if requested by the 
manufacturer, the Administrator may waive any requirement of this 
section for testing of engines for which the required emission data are 
otherwise available.
    (b) The manufacturer shall submit exhaust emission deterioration 
factors, with supporting data. The determination of the deterioration 
factors shall be conducted in accordance with Sec. 94.218 to ensure 
that the engines covered by a certificate issued under Sec. 94.208 will 
meet all of the emission standards in Sec. 94.8 in use for the useful 
life of the engine.
    (c) The manufacturer shall submit emission data on such engines 
tested in accordance with the applicable test procedures of Subpart B of 
this part. These data shall include zero hour data, if generated. In 
lieu of providing the emission data required by paragraph (a) of this 
section, the Administrator may, upon request by the manufacturer, allow 
the manufacturer to demonstrate (on the basis of previous emission 
tests, development tests, or other testing information) that the engine 
will conform with the applicable emission standards of Sec. 94.8.
    (d) The manufacturer shall submit a statement that the engines for 
which certification is requested conform to the requirements in Sec. 
94.7 and that the descriptions of tests performed to ascertain 
compliance with the general standards in Sec. 94.7, and the data 
derived from such tests, are available to the Administrator upon 
request.
    (e) The manufacturer shall submit a statement that the emission data 
engine used to demonstrate compliance with the applicable standards of 
this part is in all material respects as described in the manufacturer's 
application for certification; that it has been tested in accordance 
with the applicable test procedures utilizing the fuels and equipment 
described in the application for certification; and that on the basis of 
such tests, the engine family conforms to the requirements of this part. 
If, on the basis of the data supplied and any additional data as 
required by the Administrator, the Administrator determines that the 
test engine was not as described in the application for certification or 
was not tested in accordance with the applicable test procedures 
utilizing the fuels

[[Page 636]]

and equipment as described in the application for certification, the 
Administrator may make the determination that the engine does not meet 
the applicable standards. If the Administrator makes such a 
determination, he/she may withhold, suspend, or revoke the certificate 
of conformity under Sec. 94.208 (c)(3)(i).



Sec. 94.207  Special test procedures.

    (a) Establishment of special test procedures by EPA. The 
Administrator may, on the basis of written application by a 
manufacturer, establish special test procedures other than those set 
forth in this part, for any engine that the Administrator determines is 
not susceptible to satisfactory testing under the specified test 
procedures 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, provided that 
it is equivalent to the specified procedures with respect to the 
demonstration of compliance, its use is approved in advance by the 
Administrator, and the basis for the equivalence with the specified test 
procedures is fully described in the manufacturer's application.
    (2) The Administrator may reject data generated under alternate test 
procedures if the data do not correlate with data generated under the 
specified procedures.



Sec. 94.208  Certification.

    (a) If, after a review of the application for certification, test 
reports and data acquired from an engine or from a development data 
engine, and any other information required or obtained by EPA, the 
Administrator determines that the application is complete and that the 
engine family meets the requirements of the Act and this part, he/she 
will issue a certificate of conformity with respect to such engine 
family, except as provided by paragraph (c)(3) of this section. The 
certificate of conformity is valid for each engine family starting with 
the indicated effective date, but it is not valid for any production 
after December 31 of the model year for which it is issued. The 
certificate of conformity is valid upon such terms and conditions as the 
Administrator deems necessary or appropriate to ensure that the 
production engines covered by the certificate will meet the requirements 
of the Act and of this part.
    (b) [Reserved]
    (c)(1) The manufacturer shall bear the burden of establishing to the 
satisfaction of the Administrator that the conditions upon which the 
certificates were issued were satisfied or excused.
    (2) The Administrator will determine whether the test data included 
in the application represents all engines of the engine family.
    (3) Notwithstanding the fact that any engine(s) may comply with 
other provisions of this subpart, the Administrator may withhold or deny 
the issuance of any certificate of conformity, or suspend or revoke any 
such certificate(s) which has (have) been issued with respect to any 
such engine(s) if:
    (i) The manufacturer submits false or incomplete information in its 
application for certification thereof;
    (ii) The manufacturer renders inaccurate any test data which it 
submits pertaining thereto or otherwise circumvents the intent of the 
Act, or of this part with respect to such engine;
    (iii) Any EPA Enforcement Officer is denied access on the terms 
specified in Sec. 94.215 to any facility or portion thereof which 
contains any of the following:
    (A) An engine which is scheduled to undergo 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 engine which is scheduled to undergo 
emissions testing, or which is undergoing emissions testing, or which 
has undergone emissions testing for purposes of emissions certification; 
or
    (C) Any production engine which is or will be claimed by the 
manufacturer 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 this 
part to be kept concerning any of the items listed in paragraphs 
(c)(3)(iii)(A) through (D) of this section; or

[[Page 637]]

    (iv) Any EPA Enforcement Officer is denied ``reasonable assistance'' 
(as defined in Sec. 94.215).
    (4) In any case in which a manufacturer knowingly submits false or 
inaccurate information or knowingly renders inaccurate or invalid any 
test data or commits any other fraudulent acts and such acts contribute 
substantially to the Administrator's decision to issue a certificate of 
conformity, the Administrator may deem such certificate void ab initio.
    (5) In any case in which certification of an engine is to be 
withheld, denied, revoked or suspended under paragraph (c)(3) of this 
section, and in which the Administrator has presented to the 
manufacturer involved reasonable evidence that a violation of Sec. 
94.215 in fact occurred, the manufacturer, if it wishes to contend that, 
even though the violation occurred, the engine in question was not 
involved in the violation to a degree that would warrant withholding, 
denial, revocation or suspension of certification under paragraph (c)(3) 
of this section, shall have the burden of establishing that contention 
to the satisfaction of the Administrator.
    (6) Any revocation, suspension, or voiding of certification under 
paragraph (c)(3) of this section shall:
    (i) Be made only after the manufacturer concerned has been offered 
an opportunity for a hearing conducted in accordance with Sec. 94.216; 
and
    (ii) Extend no further than to forbid the introduction into commerce 
of engines previously covered by the certification which are still in 
the hands of the manufacturer, except in cases of such fraud or other 
misconduct that makes the certification invalid ab initio.
    (7) The manufacturer may request, within 30 days of receiving 
notification, that any determination made by the Administrator under 
paragraph (c)(3) of this section to withhold or deny certification be 
reviewed in a hearing conducted in accordance with Sec. 94.216. The 
request shall be in writing, signed by an authorized representative of 
the manufacturer and shall include a statement specifying the 
manufacturer's objections to the Administrator's determinations, and 
data in support of such objections. If the Administrator finds, after a 
review of the request and supporting data, that the request raises a 
substantial factual issue, he/she will grant the request with respect to 
such issue.
    (d) In approving an application for certification, the Administrator 
may specify or require the manufacturer to specify:
    (1) A broader range of adjustability than recommended by the 
manufacturer for those engine parameters which are subject to 
adjustment, if the Administrator determines that it is not reasonable to 
expect the parameter to be kept adjusted within the recommended range in 
use;
    (2) A longer useful life period, if the Administrator determines 
that the useful life of the engines in the engine family, as defined in 
Sec. 94.2, is longer than the period specified by the manufacturer;
    (3) Larger deterioration factors, if the Administrator determines 
that the deterioration factors specified by the manufacturer do not meet 
the requirements of Sec. 94.218; and/or
    (4) A broader Not to Exceed Zone subject to the provisions of Sec. 
94.106(b).
    (e) Within 30 days following receipt of notification of the 
Administrator's determinations made under paragraph (d) of this section, 
the manufacturer may request a hearing on the Administrator's 
determinations. The request shall be in writing, signed by an authorized 
representative of the manufacturer and shall include a statement 
specifying the manufacturer's objections to the Administrator's 
determinations and data in support of such objections. If, after review 
of the request and supporting data, the Administrator finds that the 
request raises a substantial factual issue, the manufacturer shall be 
provided with a hearing in accordance with Sec. 94.216 with respect to 
such issue.

[64 FR 73331, Dec. 29, 1999, as amended at 73 FR 37196, June 30, 2008]



Sec. 94.209  Special provisions for post-manufacture marinizers and small-

volume manufacturers.

    The provisions of this section apply for Category 1 and Category 2 
engines, but not for Category 3 engines.

[[Page 638]]

    (a) Broader engine families. Instead of the requirements of Sec. 
94.204, an engine family may consist of any or all of a manufacturer's 
engines within a given category. This does not change any of the 
requirements of this part for showing that an engine family meets 
emission standards. To be eligible to use the provisions of this 
paragraph (a), the manufacturer must demonstrate one of the following:
    (1) It is a post-manufacture marinizer and that the base engines 
used for modification have a valid certificate of conformity issued 
under 40 CFR part 89 or 40 CFR part 92 or the heavy-duty engine 
provisions 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 of the 
otherwise prohibited actions identified in Sec. 94.1103(a)(1) if 
approved in advance by the Administrator, subject to the following 
requirements:
    (1) Application for relief must be submitted to the Designated 
Officer in writing prior to the earliest date in which the applying 
manufacturer would be in violation of Sec. 94.1103. The manufacturer 
must submit evidence showing that the requirements for approval have 
been met.
    (2) The conditions causing the impending violation must not be 
substantially the fault of the applying manufacturer.
    (3) The conditions causing the impending violation must jeopardize 
the solvency of the applying manufacturer if relief is not granted.
    (4) The applying manufacturer must demonstrate that no other 
allowances under this part will be available to avoid the impending 
violation.
    (5) Any relief may not exceed one year beyond the date relief is 
granted.
    (6) The Administrator may impose other conditions on the granting of 
relief including provisions to recover the lost environmental benefit.
    (7) The manufacturer must add a permanent, legible label, written in 
block letters in English, to a readily visible part of each engine 
exempted under this paragraph (b).
    This label must include at least the following items:
    (i) The label heading ``EMISSION CONTROL INFORMATION''.
    (ii) Your corporate name and trademark.
    (iii) Engine displacement (in liters), rated power, and model year 
of the engine or whom to contact for further information.
    (iv) The statement ``THIS ENGINE IS EXEMPT UNDER 40 CFR 94.209(b) 
FROM EMISSION STANDARDS AND RELATED REQUIREMENTS.''.
    (c) Extension of deadlines. Small-volume manufacturers may use the 
provisions of 40 CFR 1068.250 to ask for an extension of a deadline to 
meet emission standards. We may require that you use available base 
engines that have been certified to emission standards for land-based 
engines until you are able to produce engines certified to the 
requirements of this part.

[67 FR 68346, Nov. 8, 2002, as amended at 68 FR 9786, Feb. 28, 2003; 73 
FR 37196, June 30, 2008]



Sec. 94.210  Amending the application and certificate of conformity.

    (a) The manufacturer shall notify the Administrator when changes to 
information required to be described in the application for 
certification are to be made to a product line covered by a certificate 
of conformity. This notification shall include a request to amend the 
application or the existing certificate of conformity. Except as 
provided in paragraph (e) of this section, no manufacturer shall make 
said changes or produce said engines prior to receiving approval from 
the Administrator.
    (b) A manufacturer's request to amend the application or the 
existing certificate of conformity shall include the following 
information:
    (1) A full description of the change to be made in production, or of 
the engines to be added;
    (2) Engineering evaluations or data showing that the engines as 
modified or added will comply with all applicable emission standards; 
and
    (3) A determination whether the manufacturer's original test fleet 
selection is still appropriate, and if the original test fleet selection 
is determined not to be appropriate, test fleet

[[Page 639]]

selection(s) representing the engines changed or added which would have 
been required if the engines had been included in the original 
application for certification.
    (c) The Administrator may require the manufacturer to perform tests 
on the engine representing the engine to be added or changed.
    (d)(1) Based on the description of the amendment and data derived 
from such testing as the Administrator may require or conduct, the 
Administrator will determine whether the change or addition would still 
be covered by the certificate of conformity then in effect.
    (2) If the Administrator determines that the change or new engine(s) 
meets the requirements of this part and the Act, the appropriate 
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, the certificate of 
conformity will not be amended. The Administrator shall provide a 
written explanation to the manufacturer of the decision not to amend the 
certificate. The manufacturer may request a hearing on a denial.
    (e) A manufacturer may make changes in or additions to production 
engines concurrently with the notification to the Administrator, as 
required by paragraph (a) of this section, if the manufacturer complies 
with the following requirements:
    (1) In addition to the information required in paragraph (b) of this 
section, the manufacturer shall supply supporting documentation, test 
data, and engineering evaluations as appropriate to demonstrate that all 
affected engines will still meet applicable emission standards.
    (2) If, after a review, the Administrator determines additional 
testing is required, the manufacturer shall provide the required test 
data within 30 days or cease production of the affected engines.
    (3) If the Administrator determines that the affected engines do not 
meet applicable requirements, the Administrator will notify the 
manufacturer to cease production of the affected engines and to recall 
and correct at no expense to the owner all affected engines previously 
produced.
    (4) Election to produce engines under this paragraph (e) will be 
deemed to be a consent to recall all engines that the Administrator 
determines do not meet applicable standards and to cause such 
nonconformity 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 the 
ultimate purchaser of each new engine, subject to the standards 
prescribed in Sec. 94.8, written instructions for the proper 
maintenance and use of the engine as are reasonable and necessary to 
assure the proper functioning of the emissions control system, 
consistent with the applicable provisions of paragraph (b) of this 
section.
    (1) The maintenance and use instructions required by this section 
shall be clear and easily understandable.
    (2) The maintenance instructions required by this section shall 
contain a general description of the documentation that would 
demonstrate for warranty purposes that the ultimate purchaser or any 
subsequent owner had complied with the instructions.
    (3) For Category 3 engines, the manufacturer must provide in 
boldface type on the first page of the written maintenance instructions 
notice that Sec. 94.1004 requires that the emissions-related 
maintenance be performed as specified in the instructions (or 
equivalent).
    (b)(1) The manufacturer must provide in boldface type on the first 
page of the written maintenance instructions notice that maintenance, 
replacement, or repair of the emission control devices and systems may 
be performed by any engine repair establishment or individual.
    (2) The instructions under paragraph (b)(1) of this section will not 
include any condition on the ultimate purchaser's or owner's using, in 
connection with such engine, any component or service (other than a 
component or service provided without charge under the terms of the 
purchase agreement) which is identified by brand, trade, or corporate 
name. Such instructions also

[[Page 640]]

will not directly or indirectly distinguish between service performed by 
any other service establishments with which such manufacturer has a 
commercial relationship and service performed by independent vessel or 
engine repair facilities with which such manufacturer has no commercial 
relationship.
    (3) The prohibition of paragraph (b)(2) of this section may be 
waived by the Administrator if:
    (i) The manufacturer demonstrates to the Administrator's 
satisfaction that the engine will function properly only if the 
component or service so identified is used in connection with such 
engine; and
    (ii) The Administrator finds that such a waiver is in the public 
interest.
    (c) The manufacturer shall provide to the Administrator, no later 
than the time of the submission required by Sec. 94.203, a copy of the 
emission-related maintenance instructions that the manufacturer proposes 
to supply to the ultimate purchaser or owner in accordance with this 
section. The Administrator will review such instructions to determine 
whether they are reasonable and necessary to ensure the proper 
functioning of the engine's emission control systems. If the 
Administrator determines that such instructions are not reasonable and 
necessary to ensure the proper functioning of the emission control 
systems, he/she may disapprove the application for certification or may 
require that the manufacturer modify the instructions.
    (d) Any revision to the maintenance instructions which will affect 
emissions shall be supplied to the Administrator at least 30 days before 
being supplied to the ultimate purchaser or owner unless the 
Administrator consents to a lesser period of time, and is subject to the 
provisions of Sec. 94.210.
    (e) This paragraph (e) specifies emission-related scheduled 
maintenance for purposes of obtaining durability data for marine 
engines. The maintenance intervals specified in this paragraph are 
minimum intervals.
    (1) All emission-related scheduled maintenance for purposes of 
obtaining durability data must occur at the same or longer hours of use 
intervals as those specified in the manufacturer's maintenance 
instructions furnished to the ultimate purchaser of the engine under 
paragraph (a) of this section. This maintenance schedule may be updated 
as necessary throughout the testing of the engine, provided that no 
maintenance operation is deleted from the maintenance schedule after the 
operation has been performed on the test equipment or engine.
    (2) Any emission-related maintenance which is performed on 
equipment, engines, subsystems, or components must be technologically 
necessary to ensure in-use compliance with the emission standards. The 
manufacturer must submit data which demonstrate to the Administrator 
that all of the emission-related scheduled maintenance which is to be 
performed is technologically necessary. Scheduled maintenance must be 
approved by the Administrator prior to being performed or being included 
in the emission-related maintenance instructions provided to the 
purchasers under paragraph (a) of this section.
    (i) The Administrator may require longer maintenance intervals than 
those listed in paragraphs (e)(3) and (e)(4) of this section where the 
listed intervals are not technologically necessary.
    (ii) The Administrator may allow manufacturers to specify shorter 
maintenance intervals than those listed in paragraphs (e)(3) and (e)(4) 
of this section where technologically necessary for Category 2 engines.
    (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 items listed 
in paragraphs (e)(3)(i) through (e)(3)(iii) of this section shall occur 
at 1,500 hours of use and at 1,500-hour intervals thereafter.
    (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 hours 
of use and at 3,000-hour intervals thereafter for engines with per-
cylinder displacement less

[[Page 641]]

than 1.2 liters, or at 4,500-hour intervals thereafter for engines with 
per-cylinder displacement greater than or equal to 1.2 liters.
    (i) Fuel injectors.
    (ii) Turbocharger.
    (iii) Electronic engine control unit and its associated sensors and 
actuators.
    (iv) Particulate trap or trap-oxidizer system (including related 
components).
    (v) Exhaust gas recirculation system (including all related control 
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., a component 
whose sole or primary purpose is to reduce emissions or whose failure 
will significantly degrade emission control and whose function is not 
integral to the design and performance of the engine).
    (f) Scheduled maintenance not related to emissions which is 
reasonable and technologically necessary (e.g., oil change, oil filter 
change, fuel filter change, air filter change, cooling system 
maintenance, adjustment of idle speed, governor, engine bolt torque, 
valve lash, injector lash, timing, lubrication of the exhaust manifold 
heat control valve, etc.) may be performed on durability engines at the 
least frequent intervals recommended by the manufacturer to the ultimate 
purchaser, (e.g., not the intervals recommended for severe service).
    (g) Adjustment of engine idle speed on emission data engines may be 
performed once before the low-hour emission test point. Any other 
engine, emission control system, or fuel system adjustment, repair, 
removal, disassembly, cleaning, or replacement on emission data vehicles 
shall be performed only with advance approval of the Administrator.
    (h) For Category 1 and Category 2 engines, equipment, instruments, 
or tools may not be used to identify malfunctioning, maladjusted, or 
defective engine components unless the same or equivalent equipment, 
instruments, or tools will be available to dealerships and other service 
outlets and are:
    (1) Used in conjunction with scheduled maintenance on such 
components; or
    (2) Used subsequent to the identification of an engine malfunction, 
as provided in paragraph (e) of this section for emission data engines; 
or
    (3) Specifically authorized by the Administrator.
    (i) All test data, maintenance reports, and required engineering 
reports shall be compiled and provided to the Administrator in 
accordance 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-related 
components.
    (i) Catalytic convertor.
    (ii) Electronic engine control unit and its associated sensors and 
actuators.
    (iii) Exhaust gas recirculation system (including all related 
filters, 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., a component 
whose sole or primary purpose is to reduce emissions or whose failure 
will significantly degrade emission control and whose function is not 
integral to the design and performance of the engine).
    (2) All critical emission-related scheduled maintenance must have a 
reasonable likelihood of being performed in use. For Category 1 and 
Category 2 engines, the manufacturer must show the reasonable likelihood 
of such maintenance being performed in-use. Critical emission-related 
scheduled maintenance items which satisfy one of the conditions defined 
in paragraphs (j)(2)(i) through (j)(2)(vi) of this section will be 
accepted as having a reasonable likelihood of being performed in use.
    (i) Data are presented which establish for the Administrator a 
connection between emissions and engine performance such that as 
emissions increase due to lack of maintenance, vehicle performance will 
simultaneously deteriorate to a point unacceptable for typical 
operation.

[[Page 642]]

    (ii) Survey data are submitted which adequately demonstrate to the 
Administrator with an 80 percent confidence level that 80 percent of 
such engines already have this critical maintenance item performed in-
use at the recommended interval(s).
    (iii) A clearly displayed visible signal system approved by the 
Administrator is installed to alert the equipment operator that 
maintenance is due. A signal bearing the message ``maintenance needed'' 
or ``check engine,'' or a similar message approved by the Administrator, 
shall be actuated at the appropriate usage point or by component 
failure. This signal must be continuous while the engine is in operation 
and not be easily eliminated without performance of the required 
maintenance. Resetting the signal shall be a required step in the 
maintenance operation. The method for resetting the signal system shall 
be approved by the Administrator. The system must not be designed to 
deactivate upon the end of the useful life of the engine or thereafter.
    (iv) A manufacturer may desire to demonstrate through a survey that 
a critical maintenance item is likely to be performed without a visible 
signal on a maintenance item for which there is no prior in-use 
experience without the signal. To that end, the manufacturer may in a 
given model year market up to 200 randomly selected engines per critical 
emission-related maintenance item without such visible signals, and 
monitor the performance of the critical maintenance item by the owners 
to show compliance with paragraph (j)(2)(ii) of this section. This 
option is restricted to two consecutive model years and may not be 
repeated until any previous survey has been completed. If the critical 
maintenance involves more than one engine family, the sample will be 
sales weighted to ensure that it is representative of all the families 
in question.
    (v) The manufacturer provides the maintenance free of charge, and 
clearly informs the customer that the maintenance is free in the 
instructions provided under paragraph (a) of this section.
    (vi) The manufacturer uses any other method which the Administrator 
approves as establishing a reasonable likelihood that the critical 
maintenance will be performed in-use.
    (3) Visible signal systems used under paragraph (j)(2)(iii) of this 
section are considered an element of design of the emission control 
system. Therefore, disabling, resetting, or otherwise rendering such 
signals inoperative without also performing the indicated maintenance 
procedure is a prohibited act.
    (k) For Category 3 engines, the manufacturer must provide the 
ultimate purchaser with a Technical File meeting the specifications of 
section 2.4 of the Annex VI Technical Code (incorporated by reference in 
Sec. 94.5). The maintenance instructions required by this part to be 
provided by manufacturer may be included in this Technical File. The 
manufacturer must provide a copy of this Technical File to EPA upon 
request.
    (l) Owners and operators of Category 3 engines shall transfer the 
maintenance instructions to subsequent owners and operators of the 
engine 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 a 
certificate of conformity under Sec. 94.208 shall be labeled by the 
manufacturer in the manner described in this paragraph (b) of this 
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 of Sec. 94.209 
(b) and covered by a certificate of conformity under Sec. 94.208 shall 
be labeled by the PMM in the manner described in paragraph (b) of this 
section.
    (b) Engine labels. Engine labels meeting the specifications of this 
section shall be applied to every engine by the manufacturer at the 
point of original manufacture. Engine labels shall be permanent and 
legible and shall be affixed to the engine in a position in which it 
will be readily visible after installation of the engine in the vessel.

[[Page 643]]

The label shall be attached to an engine part necessary for normal 
operation and not normally requiring replacement during the useful life 
of the engine. The label shall be affixed by the manufacturer in such 
manner that it cannot be removed without destroying or defacing the 
label. The label shall not be affixed to any equipment which is easily 
detached from such engine. The label may be not be made up of more than 
one piece without the advance approval of the Administrator. The label 
shall contain the following information lettered in the English language 
in block letters and numerals, which shall be of a color that contrasts 
with the background of 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 marine 
compression-ignition engines.
    (7) The useful life of the engine, unless the applicable useful life 
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 recommended by 
the manufacturer in accordance with the applicable emission standards, 
including but not limited to idle speeds(s), injection timing, valve 
lash (as applicable), as well as other parameters deemed necessary by 
the manufacturer.
    (10) The application for which the engine family is certified. (For 
example: constant-speed auxiliary, variable-speed propulsion engines 
used with fixed-pitch propellers, recreational, etc.)
    (c) The provisions of this section shall not prevent a manufacturer 
from also providing on the label any other information that such 
manufacturer deems necessary for, or useful to, the proper operation and 
satisfactory maintenance of the vessel or engine.
    (d) Engines certified under the voluntary standards described in 
Sec. 94.8(f) to be designated as Blue Sky Series engines must contain 
the statement on the label: ``Blue Sky Series''.
    (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, it must 
contain the statement on the label: ``THIS ENGINE IS CERTIFIED FOR 
OPERATION ONLY WITH DISTILLATE DIESEL FUEL. MODIFYING THE ENGINE TO 
OPERATE ON RESIDUAL FUEL MAY BE A VIOLATION OF FEDERAL LAW SUBJECT TO 
CIVIL PENALTIES.'' The Administrator may approve alternate 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 any 
engine covered by a certificate of conformity shall, within 30 days of 
receipt of such request, identify by engine identification number, the 
engines covered by the certificate of conformity.
    (b) The manufacturer of any engines covered by a certificate of 
conformity shall provide to the Administrator, within 60 days of the 
issuance of a certificate of conformity, an explanation of the elements 
in any engine identification coding system in sufficient detail to 
enable the Administrator to identify those engines which are covered by 
a certificate of conformity.



Sec. 94.214  Production engines.

    Any manufacturer obtaining certification under this part shall 
supply to the Administrator, upon his/her request, a reasonable number 
of production engines, as specified by the Administrator. The engines 
shall be representative of the engines, emission control systems, and 
fuel systems offered and typical of production engines available for 
sale or use under the certificate. These engines shall be supplied for 
testing at such time and place and for such reasonable periods as the 
Administrator may require. This requirement does not apply for Category 
3 engines. Manufacturers of Category 3

[[Page 644]]

engines, however, must allow EPA access to test engines and development 
engines to the extent necessary to determine that the engine family is 
in full compliance with 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 procedures 
prescribed in this subpart shall establish, maintain and retain the 
following adequately organized and indexed records:
    (1) General records. The records required to be maintained by this 
paragraph (a) shall consist of:
    (i) Identification and description of all certification engines for 
which testing is required under this subpart.
    (ii) A description of all emission control systems which are 
installed on or incorporated in each certification engine.
    (iii) A description of all procedures used to test each such 
certification engine.
    (iv) A copy of all applications for certification, filed with the 
Administrator.
    (2) Individual records. (i) A brief history of each engine used for 
certification under this subpart including:
    (A) In the case where a current production engine is modified for 
use as a certification engine, a description of the process by which the 
engine was selected and of the modifications made. In the case where the 
certification engine is not derived from a current production engine, a 
general description of the buildup of the engine (e.g., whether 
experimental heads were cast and machined according to supplied 
drawings). In the cases in the previous two sentences, a description of 
the origin and selection process for fuel system components, ignition 
system components (as applicable), intake air pressurization and cooling 
system components, cylinders, pistons and piston rings, exhaust smoke 
control system components, and exhaust aftertreatment devices as 
applicable, shall be included. The required descriptions shall specify 
the steps taken to assure that the certification engine, with respect to 
its engine, drivetrain, fuel system, emission control system components, 
exhaust aftertreatment devices, or any other devices or components as 
applicable, that can reasonably be expected to influence exhaust 
emissions will be representative of production engines and that either: 
all components and/or engine, construction processes, component 
inspection and selection techniques, and assembly techniques employed in 
constructing such engines are reasonably likely to be implemented for 
production engines; or that they are as close as practicable to planned 
construction and assembly process.
    (B) A complete record of all emission tests performed (except tests 
performed by EPA directly), including test results, the date and purpose 
of each test, and the number of hours accumulated on the engine.
    (C) A record and description of all maintenance and other servicing 
performed, giving the date of the maintenance or service and the reason 
for it.
    (D) A record and description of each test performed to diagnose 
engine or emission control system performance, giving the date and time 
of the test and the reason for it.
    (E) A brief description of any significant events affecting the 
engine during the period covered by the history and not described by an 
entry under one of the previous headings, including such extraordinary 
events as accidents involving the engine or dynamometer runaway.
    (ii) Each such history shall be started on the date that the first 
of any of the selection or buildup activities in paragraph (a)(2)(i)(A) 
of this section occurred with respect to the certification 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 the 
manufacturer for a period of 8 years after issuance of all certificates 
of conformity to which they relate. Routine emission test records shall 
be retained by the manufacturer for a period of one (1) year after 
issuance of all certificates of conformity to which they relate. Records

[[Page 645]]

may be retained as hard copy or reduced to computer disks, etc., 
depending on the record retention procedures of the manufacturer: 
Provided, that in every case all the information contained in the hard 
copy shall be retained.
    (4) Nothing in this section limits the Administrator's discretion in 
requiring the manufacturer to retain additional records or submit 
information not specifically required by this section.
    (5) Pursuant to a request made by the Administrator, the 
manufacturer shall submit to him/her the information that is required to 
be retained.
    (6) EPA may void a certificate of conformity ab initio for an engine 
family for which the manufacturer fails to retain the records required 
in this section or to provide such information to the Administrator upon 
request.
    (b) The manufacturer of engines subject to any of the standards 
prescribed in this part shall submit to the Administrator, at the time 
of issuance by the manufacturer, copies of all instructions or 
explanations regarding the use, repair, adjustment, maintenance, or 
testing of such engine, relevant to the control of crankcase, or exhaust 
emissions issued by the manufacturer, for use by other manufacturers, 
assembly plants, distributors, dealers, owners and operators. Any 
material not translated into the English language need not be submitted 
unless specifically requested by the Administrator.
    (c) Any manufacturer participating in averaging, banking and trading 
program of subpart D of this part must comply with the maintenance of 
records requirements of Sec. 94.308.
    (d)(1) Any manufacturer who has applied for certification of a new 
engine subject to certification testing under this subpart shall admit 
or cause to be admitted any EPA Enforcement Officer during operating 
hours on presentation of credentials to any of the following:
    (i) Any facility where any such tests or any procedures or 
activities connected with such test are or were performed;
    (ii) Any facility where any engine which is being tested (or was 
tested, or is to be tested) is present;
    (iii) Any facility where any construction process or assembly 
process used in the modification or buildup of such an engine into a 
certification engine is taking place or has taken place; or
    (iv) Any facility where any record or other document relating to any 
of the 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, service 
accumulation, maintenance, and engine storage procedures, and to verify 
correlation or calibration of test equipment;
    (ii) To inspect and make copies of any such records, designs, or 
other documents, including those records specified in Subpart D of this 
part; and
    (iii) To inspect and/or photograph any part or aspect of any such 
certification engine and any components to be used in the construction 
thereof.
    (3) In order to allow the Administrator to determine whether or not 
production engines, conform to the conditions upon which a certificate 
of conformity has been issued, or conform in all material respects to 
the design specifications applicable to those engines, as described in 
the application for certification for which a certificate of conformity 
has been issued, any manufacturer shall admit any EPA Enforcement 
Officer on presentation of credentials to:
    (i) Any facility where any document, design or procedure relating to 
the translation of the design and construction of engines and emission 
related components described in the application for certification or 
used for certification testing into production engines is located or 
carried on;
    (ii) Any facility where any engines to be introduced into commerce 
are manufactured; and
    (iii) Any facility where records specified this section are located.
    (4) On admission to any such facility referred to in paragraph 
(d)(3) of this section, any EPA Enforcement Officer shall be allowed:

[[Page 646]]

    (i) To inspect and monitor any aspects of such manufacture and other 
procedures;
    (ii) To inspect and make copies of any such records, documents or 
designs;
    (iii) To inspect and photograph any part or aspect of any such 
engine(s) and any component used in the assembly thereof that are 
reasonably related to the purpose of his/her entry; and
    (iv) To inspect and make copies of any records and documents 
specified in this section.
    (5) Any EPA Enforcement Officer shall be furnished by those in 
charge of a facility being inspected with such reasonable assistance as 
he/she may request to help him/her discharge any function listed in this 
part. Each applicant for or recipient of certification is required to 
cause those in charge of a facility operated for its benefit to furnish 
such reasonable assistance without charge to EPA whether or not the 
applicant controls the facility.
    (6) The duty to admit or cause to be admitted any EPA Enforcement 
Officer applies to any facility involved in the manufacturing or 
assembling of engines, whether or not the manufacturer owns or controls 
the facility in question and applies both to domestic and to foreign 
manufacturers and facilities. EPA will not attempt to make any 
inspections which it has been informed that local law forbids. However, 
if local law makes it impossible to do what is necessary to insure the 
accuracy of data generated at a facility, no informed judgment that an 
engine is certifiable or is covered by a certificate can properly be 
based on those data. It is the responsibility of the manufacturer to 
locate its testing and manufacturing facilities in jurisdictions where 
this situation will not arise.
    (7) For purposes of this section:
    (i) ``Presentation of credentials'' shall mean display of the 
document designating a person as an EPA Enforcement Officer.
    (ii) Where component or engine storage areas or facilities are 
concerned, ``operating hours'' shall mean all times during which 
personnel other than custodial personnel are at work in the vicinity of 
the area or facility and have access to it.
    (iii) Where facilities or areas other than those covered by 
paragraph (d)(7)(ii) of this section are concerned, ``operating hours'' 
shall mean all times during which an assembly line is in operation or 
all times during which testing, maintenance, service accumulation, 
production or compilation of records, or any other procedure or activity 
related to certification testing, to translation of designs from the 
test stage to the production stage, or to engine manufacture, or 
assembly is being carried out in a facility.
    (iv) ``Reasonable assistance'' includes, but is not limited to, 
clerical, copying, interpretation and translation services, the making 
available on request of personnel of the facility being inspected during 
their working hours to inform the EPA Enforcement Officer of how the 
facility operates and to answer his questions, and the performance on 
request of emissions tests on any engine which is being, has been, or 
will be used for certification testing. Such tests shall be 
nondestructive, but may require appropriate service accumulation. A 
manufacturer may be compelled to cause the personal appearance of any 
employee at such a facility before an EPA Enforcement Officer by written 
request for his appearance, signed by the Assistant Administrator for 
Air and Radiation or the Assistant Administrator for Enforcement and 
Compliance Assurance, served on the manufacturer. Any such employee who 
has been instructed by the manufacturer to appear will be entitled to be 
accompanied, represented and advised by counsel.
    (v) Any entry without 24 hour prior written or oral notification to 
the affected manufacturer shall be authorized in writing by the 
Assistant Administrator for Air and Radiation or the Assistant 
Administrator for Enforcement and Compliance Assurance.
    (8) EPA may void a certificate of conformity ab initio for engines 
introduced into commerce if the manufacturer (or contractor for the 
manufacturer, if applicable) fails to comply with any provision of this 
section.

[[Page 647]]



Sec. 94.216  Hearing procedures.

    (a)(1) After granting a request for a hearing under Sec. 94.210 or 
Sec. 94.208, the Administrator shall designate a Presiding Officer for 
the hearing.
    (2) The hearing shall be held as soon as practicable at a time and 
place fixed by the Administrator or by the Presiding Officer.
    (3) In the case of any hearing requested pursuant to Sec. 94.208, 
the Administrator may in his/her discretion direct that all argument and 
presentation of evidence be concluded within such fixed period not less 
than 30 days as he/she may establish from the date that the first 
written offer of a hearing is made to the manufacturer. To expedite 
proceedings, the Administrator may direct that 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 this 
section, the Presiding Officer will establish a hearing file. The file 
shall consist of the notice issued by the Administrator under Sec. 
94.210 or Sec. 94.208 together with any accompanying material, the 
request for a hearing and the supporting data submitted therewith, and 
all documents relating to the request for certification and all 
documents submitted therewith, and correspondence and other data 
material to the hearing.
    (2) The hearing file will be available for inspection by the 
applicant at the office of the Presiding Officer.
    (c) An applicant may appear in person, or may be represented by 
counsel or by any other duly authorized representative.
    (d)(1) The Presiding Officer, upon the request of any party, or in 
his/her discretion, may arrange for a prehearing conference at a time 
and place specified by him/her to consider the following:
    (i) Simplification of the issues;
    (ii) Stipulations, admissions of fact, and the introduction of 
documents;
    (iii) Limitation of the number of expert witnesses;
    (iv) Possibility of agreement disposing of all or any of the issues 
in dispute;
    (v) Such other matters as may aid in the disposition of the hearing, 
including such additional tests as may be agreed upon by the parties.
    (2) The results of the conference shall be reduced to writing by the 
Presiding Officer and made part of the record.
    (e)(1) Hearings shall be conducted by the Presiding Officer in an 
informal but orderly and expeditious manner. The parties may offer oral 
or written evidence, subject to the exclusion by the Presiding 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 that 
their statements may be subject to the provisions of 18 U.S.C. 1001 
which imposes penalties for knowingly making false statements or 
representations, or using false documents in any matter within the 
jurisdiction of any department or agency of the United States.
    (3) Any witness may be examined or cross-examined by the Presiding 
Officer, the parties, or their representatives.
    (4) Hearings shall be reported verbatim. Copies of transcripts of 
proceedings may be purchased by the applicant from the reporter.
    (5) All written statements, charts, tabulations, and similar data 
offered in evidence at the hearings shall, upon a showing satisfactory 
to the Presiding Officer of their authenticity, relevancy, and 
materiality, be received in evidence and shall constitute a part of the 
record.
    (6) Oral argument may be permitted in the discretion of the 
Presiding Officer and shall be reported as part of the record unless 
otherwise ordered by him/her.
    (f)(1) The Presiding Officer shall make an initial decision which 
shall include written findings and conclusions and the reasons or basis 
therefor on all the material issues of fact, law, or discretion 
presented on the record. The findings, conclusions, and written decision 
shall be provided to the parties and made a part of the record. The 
initial decision shall become the decision of the Administrator without 
further proceedings unless there is an appeal to the Administrator or 
motion for review by the Administrator within

[[Page 648]]

30 days of the date the initial decision was filed.
    (2) On appeal from or review of the initial decision, the 
Administrator shall have all the powers which he/she would have in 
making the initial decision including the discretion to require or allow 
briefs, oral argument, the taking of additional evidence or the 
remanding to the Presiding Officer for additional proceedings. The 
decision by the Administrator shall include written findings and 
conclusions and the reasons or basis therefor on all the material issues 
of fact, law, or discretion presented on the appeal or considered in the 
review.



Sec. 94.217  Emission data engine selection.

    (a) The manufacturer must select for testing, from each engine 
family, the engine configuration which is expected to be worst-case for 
exhaust emission compliance on in-use engines, considering all exhaust 
emission constituents and the range of installation options available to 
vessel builders. The engines selected for testing are collectively 
described as the test fleet.
    (b) Each engine in the test fleet must be constructed to be 
representative of production engines.
    (c) After review of the manufacturer's test fleet, the Administrator 
may select from the available fleet one additional test engine from each 
engine family.
    (d) Each engine selected shall be tested according to the provisions 
of Subpart B of this part.
    (e) In lieu of testing an emission data engine selected under 
paragraph (a) of this section and submitting the resulting data, a 
manufacturer may, with Administrator approval, use emission data on a 
similar engine for which certification has previously been obtained or 
for which all applicable data required under this subpart have 
previously been submitted. These data must be submitted in the 
application for certification.
    (f) A single cylinder test engine may be used for certification of 
Tier 1 Category 3 engine families. If you use test data from a single 
cylinder test engine for certification, explain in your application how 
you have determined that such data show that the multiple cylinder 
production engines will comply with the applicable emission standards.

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9786, Feb. 28, 2003]



Sec. 94.218  Deterioration factor determination.

    Manufacturers shall determine exhaust emission deterioration factors 
using good engineering judgement according to the provisions of this 
section. Every deterioration factor must be, in the Administrator's 
judgment, consistent with emissions increases observed in-use based on 
emission testing of similar engines. Deterioration factors that predict 
emission increases over the useful life of an engine that are 
significantly less than the emission increases over the useful life 
observed from in-use testing of similar engines shall not be used.
    (a) A separate exhaust emission deterioration factor shall be 
established for each engine family and for each emission constituent 
applicable to that family.
    (b) Calculation procedures--(1) For engines not utilizing 
aftertreatment technology (e.g., catalyst). For each applicable emission 
constituent, an additive deterioration factor shall be used; that is, a 
deterioration factor that when added to the low mileage emission rate 
equals the emission rate at the end of useful life. However, if the 
deterioration factor supplied by the manufacturer is less than zero, it 
shall be zero for the purposes of this section.
    (2) For engines utilizing aftertreatment technology (e.g., 
catalyst). For each applicable emission constituent, a multiplicative 
deterioration factor shall be used; that is deterioration factors that 
when multiplied by the low mileage emission rate equal the emission rate 
at the end of useful life. However, if the deterioration factor supplied 
by the manufacturer is less than one, it shall be one for the purposes 
of this section.
    (c) Rounding. (1) In the case of a multiplicative exhaust emission 
deterioration factor, round the factor to three places to the right of 
the decimal point.
    (2) In the case of an additive exhaust emission deterioration 
factor, round

[[Page 649]]

the factor shall to at least two places to the right of the decimal 
point.
    (d)(1) Except as allowed by paragraph (d)(2) of this section, the 
manufacturer shall determine the deterioration factors for Category 1 
and Category 2 engines based on service accumulation and related 
testing, according to the manufacturer's procedures, and the provisions 
of Sec. Sec. 94.219 and 94.220. The manufacturer shall determine the 
form and extent of this service accumulation, consistent with good 
engineering practice, and shall describe this process in the application 
for certification.
    (2) Alternatives to service accumulation and testing for the 
determination of a deterioration factor. A written explanation of the 
appropriateness of using an alternative must be included in the 
application for certification.
    (i) Carryover and carryacross of durability emission data. In lieu 
of testing an emission data or durability data engine selected under 
Sec. 94.217 or Sec. 94.219, and submitting the resulting data, a 
manufacturer may, with Administrator approval, use exhaust emission 
deterioration data on a similar engine for which certification to the 
same standard has previously been obtained or for which all applicable 
data required under this subpart have previously been submitted. These 
data must be submitted in the application for certification.
    (ii) Use of non-marine deterioration data. In the case where a 
manufacturer produces a certified motor vehicle engine, locomotive 
engine, or other nonroad engine that is similar to the marine engine to 
be certified, deterioration data from the non-marine engine may be 
applied to the marine engine. This application of deterioration data 
from such an engine to a marine engine is subject to Administrator 
approval, and the determination of whether the engines are similar shall 
be based on good engineering judgment.
    (iii) Engineering analysis for established technologies. In the case 
where an engine family uses technology which is well established, an 
analysis based on good engineering practices may be used in lieu of 
testing to determine a deterioration factor for that engine family. 
Engines using exhaust gas recirculation or aftertreatment are excluded 
from this provision. The manufacturer shall provide a written statement 
to the Administrator that all data, analyses, test procedures, 
evaluations, and other documents, on which the deterioration factor is 
based, are available to the Administrator upon request.
    (iv) Assigned deterioration factors. Small-volume manufacturers 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 shall 
select for durability testing, from each engine family, the engine 
configuration which is expected to generate the highest level of exhaust 
emission deterioration on engines in use, considering all exhaust 
emission constituents and the range of installation options available to 
vessel builders. The manufacturer shall use good engineering judgment in 
making this selection.
    (b) Carryover data satisfying the provisions of Sec. 94.220 may 
also be used in lieu of testing the configuration selected in paragraph 
(a) of this section.
    (c) Durability data engines shall be built from subsystems and 
components 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 be operated 
with all emission control systems operating properly for a period, up to 
125 hours of operation, that is sufficient to stabilize emissions.
    (b) Durability data engines shall accumulate service in a manner 
which will represent the emission levels from in-use engines over their 
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 factors may 
be projected from durability data engines which have completed less than 
full

[[Page 650]]

useful life service accumulation, provided that the amount of service 
accumulation completed and projection procedures are determined using 
good engineering judgement.
    (c) No maintenance, other than recommended lubrication and filter 
changes or maintenance otherwise allowed by this part, may be performed 
during service accumulation without the Administrator's approval.
    (d) The manufacturer must maintain, and provide to the Administrator 
if requested, records stating the rationale for selecting the service 
accumulation period and records describing the method 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 in 
making all decisions called for under this part, including but not 
limited to selections, categorizations, determinations, and applications 
of the requirements of the part.
    (b) Upon written request by the Administrator, the manufacturer 
shall provide within 15 working days (or such longer period as may be 
allowed by the Administrator) a written description of the engineering 
judgment in question.
    (c) The Administrator may reject any such decision by a manufacturer 
if it is not based on good engineering judgment or is otherwise 
inconsistent with the requirements of this part.
    (d) If the Administrator rejects a decision by a manufacturer with 
respect to the exercise of good engineering judgment, the following 
provisions shall apply:
    (1) If the Administrator determines that incorrect information was 
deliberately used in the decision process, that important information 
was deliberately overlooked, that the decision was not made in good 
faith, or that the decision was not made with a rational basis, the 
Administrator may suspend or void ab initio a certificate of conformity.
    (2) If the Administrator determines that the manufacturer's decision 
is not covered by the provisions of paragraph (d) (1) of this section, 
but that a different decision would reflect a better exercise of good 
engineering judgment, then the Administrator will notify the 
manufacturer of this concern and the basis of the concern.
    (i) The manufacturer shall have at least 30 days to respond to this 
notice. The Administrator may extend this response period upon request 
from the manufacturer if it is necessary to generate additional data for 
the manufacturer's response.
    (ii) The Administrator shall make the final ruling after considering 
the information provided by the manufacturer during the response period. 
If the Administrator determines that the manufacturer's decision was not 
made using good engineering judgment, he/she may reject that decision 
and apply the new ruling to future corresponding decisions as soon as 
practicable.
    (e) The Administrator shall notify the manufacturer in writing 
regarding any decision reached under paragraph (d)(1) or (2) of this 
section. The Administrator shall include in this notification the basis 
for reaching the determination.
    (f) Within 30 working days following receipt of notification of the 
Administrator's determinations made under paragraph (d) of this section, 
the manufacturer may request a hearing on those determinations. The 
request shall be in writing, signed by an authorized representative of 
the manufacturer, and shall include a statement specifying the 
manufacturer's objections to the Administrator's determinations, and 
data or other analysis in support of such objections. If, after review 
of the request and supporting data or analysis, the Administrator finds 
that the request raises a substantial factual issue, he/she shall 
provide the manufacturer a hearing in accordance with Sec. 94.216 with 
respect to such issue.



Sec. 94.222  Certification of engines on imported vessels.

    For marine engines subject to the requirements of this part that are 
installed on imported vessels, the Administrator may specify alternate 
certification provisions as necessary.

[[Page 651]]



   Subpart D_Certification Averaging, Banking, and Trading Provisions



Sec. 94.301  Applicability.

    Marine engine families subject to the standards of subpart A of this 
part are eligible to participate in the certification averaging, 
banking, and trading program described in this subpart. The provisions 
of this subpart apply to manufacturers of new engines that are subject 
to the emission standards of Sec. 94.8. To the extent specified in 40 
CFR part 60, subpart IIII, stationary engines certified under this part 
and subject to the standards of 40 CFR part 60, subpart IIII, may 
participate in the averaging, banking, and trading 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 have otherwise been 
applicable had the engine not been certified under this subpart to an 
FEL different than that standard.
    Broker means any entity that facilitates a trade between a buyer and 
seller.
    Buyer means the entity that receives credits as a result of trade.
    Reserved credits means credits that have been generated but have not 
yet been reviewed by EPA or used to demonstrate compliance under the 
averaging provisions of this subpart.
    Seller means the entity that provides credits during a trade.



Sec. 94.303  General provisions.

    (a) Participation in the averaging, banking, and trading program is 
voluntary. A manufacturer may choose to involve some or all of its 
engine families in any or all aspects of the program.
    (b) An engine family is eligible to participate in the certification 
averaging, banking, and trading program for THC+NOX and PM 
emissions only if it is subject to regulation under this part with 
certain exceptions specified in paragraph (c) of this section. No 
averaging, banking, and trading program 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 engines 
certified under this part are eligible for generation or use of credits 
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 manufacturer 
for use by that same manufacturer in the same calendar year. A 
manufacturer may use averaging during certification to offset an 
emission exceedance of an engine family caused by an FEL above the 
applicable emission standard, subject to the provisions of this subpart.
    (e) Banking involves the generation of credits by a manufacturer in 
a given calendar year for use in a subsequent model year. A manufacturer 
may bank actual credits only after the end of the calendar year and 
after EPA has reviewed the manufacturer's end-of-year reports. During 
the calendar year and before submittal of the end-of-year report, 
credits originally designated in the certification process for banking 
will be considered reserved and may be redesignated for trading or 
averaging in the end-of-year report. Credits declared for banking from 
the previous calendar year that have not been reviewed by EPA may be 
used in averaging or trading transactions. However, such credits may be 
revoked at a later time following EPA review of the end-of-year report 
or any subsequent audit actions.
    (f) Trading involves the sale of banked credits for use in 
certification of new engines under this part. Only banked credits may be 
traded; reserved credits may not be traded.



Sec. 94.304  Compliance requirements.

    (a) Manufacturers wishing to participate in certification averaging, 
banking and trading programs shall select a FEL for each engine family 
they wish to include. The level of the FEL shall be selected by the 
manufacturer, subject to the upper limits described in

[[Page 652]]

paragraph (m) of this section. An engine family certified to an FEL is 
subject to all provisions specified in this part, except that the 
applicable FEL replaces the applicable THC+NOX and PM 
emission standard for the family participating in the averaging, 
banking, and trading program.
    (b) A manufacturer may certify one or more engine families at FELs 
above or below the applicable emission standard, provided the summation 
of the manufacturer's projected balance of all credit transactions in a 
given calendar year is greater than or equal to zero, as calculated for 
each family under Sec. 94.305 and reported under Sec. 94.309.
    (c) Manufacturers certifying engine families with FELs exceeding the 
applicable emission standard shall obtain emission credits in amounts 
sufficient to address the shortfall. Credits may be obtained from 
averaging, banking, or trading, subject to the restrictions described in 
this subpart.
    (d) Manufacturers certifying engine families with FELs below the 
applicable 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 pollutant 
while also using credits for another pollutant in the same model year.
    (f) Credits may only be used for certification; they may not be used 
to remedy a violation of the FEL determined by production line or in-use 
testing. Credits may be used to allow subsequent production of engines 
for an engine family failing production line testing if the manufacturer 
elects to recertify to a higher FEL.
    (g) [Reserved].
    (h) If an FEL is changed after initial certification in any given 
model year, the manufacturer must conduct production line testing to 
verify that the emission levels are achieved, with one exception: when 
an FEL is changed immediately after (and because of) a production line 
testing failure, additional verification testing is not required.
    (i) Manufacturers participating in the averaging, banking and 
trading program must demonstrate compliance with the applicable emission 
standards at the end of the model year. Manufacturers that have 
certified engine families to FELs above the applicable emission 
standards and do not have sufficient emission credits to offset the 
difference between the emission standard and the FEL for such engine 
families will be in violation of the conditions of the certificate of 
conformity for such engine families. The certificates of conformity may 
be voided ab initio for those engine families.
    (j) In the event of a negative credit balance resulting from a 
credit trade, both the buyer(s) and the seller(s) are liable, except in 
cases involving fraud. Certificates of all engine families participating 
in a negative trade may be voided ab initio.
    (1) Where a buyer of credits is not responsible for causing the 
negative credit balance, the buyer is only liable to supply additional 
credits equivalent to any amount of invalid credits that the buyer used 
for its engine family(ies).
    (2) Credit holders responsible for the credit shortfall may be 
subject to the requirements of Sec. 94.309(g)(3).
    (k) The following provisions limit credit exchanges between 
different types of engines:
    (1) Credits generated by Category 1 engine families may be used for 
compliance by Category 1 or Category 2 engine families. Credits 
generated from Category 1 engine families for use by Category 2 engine 
families must be discounted by 25 percent.
    (2) Credits generated by Category 2 engine families may be used for 
compliance only by Category 2 engine families.
    (3) Credits may not be exchanged between recreational and commercial 
engines.
    (l) Credit life shall be unlimited.
    (m) Upper limits. The FELs for THC+NOX and PM for new 
engines certified for participation in this averaging, banking and 
trading program may not exceed the following values:
    (1) For Category 1 engines, the FEL may not exceed the levels 
contained in Table D-1, which follows:

[[Page 653]]



                      Table D-1--Category 1 Upper Limits for Tier 2 Family Emission Limits
----------------------------------------------------------------------------------------------------------------
                                                                            Model year  THC+NOX FEL   PM FEL  g/
                       Subcategory liters/cylinder                             \1\        g/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 which the specified standards start.

    (2) For Category 2 engines, the FEL may not exceed the applicable 
standard 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, calculate 
THC+NOX and PM emission credits (positive or negative) 
according to the equation in paragraph (b) of this section and round 
emissions to the nearest one-hundredth of a megagram (Mg). Use 
consistent 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 engine 
THC+NOX or PM emission standard in grams per kilowatt-hour.
    (ii) FEL = the family emission limit for the engine family in grams 
per kilowatt-hour. (The FEL may not exceed the limit established in 
Sec. 94.304(m) for each pollutant.)
    (iii) UL = the useful life in hours of operation.
    (iv) Production = the number of engines participating in the 
averaging, banking, and trading program within the given engine family 
during the calendar year (or the number of engines in the subset of the 
engine family for which credits are being calculated). Quarterly 
production projections are used for initial certification. Actual 
applicable production/sales volumes are used for end-of-year compliance 
determination.
    (v) AvgPR = average power rating of all of the configurations within 
an engine family, calculated on a sales-weighted basis, in kilowatts.
    (vi) LF = the load factor, dependent on whether the engine is 
intended 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 the 
averaging, banking, and/or trading programs. Separate declarations are 
required for each pollutant (THC+NOX and PM).
    (2) Declare FELs for each engine family participating in 
certification averaging, banking, and/or trading.
    (i) The FELs must be to the same number of significant digits as the 
emission standard.
    (ii) In no case may the FEL exceed the upper limit prescribed in 
Sec. 94.304(m).
    (3) Conduct and submit detailed calculations of projected emission 
credits (positive or negative) based on quarterly production projections 
for each participating family and for each pollutant, using the 
applicable equation in Sec. 94.305 and the applicable values of the 
terms in the equation for the specific family.
    (i) If the engine family is projected to have negative emission 
credits, state specifically the source (manufacturer/engine family) of 
the credits necessary to offset the credit deficit according to 
quarterly projected production.
    (ii) If the engine family is projected to generate credits, state 
specifically where the quarterly projected credits will be applied 
(manufacturer/engine family or reserved).

[[Page 654]]

    (4) Submit a statement that the engines for which certification is 
requested will not, to the best of the manufacturer's belief, cause the 
manufacturer to have a negative credit balance when all credits are 
calculated for all the manufacturer's engine families participating in 
the averaging, banking, and trading program.
    (b) Based on this information, each manufacturer's certification 
application must demonstrate:
    (1) That at the end of model year production, each engine family has 
a net emissions credit balance equal to or greater than zero for any 
pollutant and program for which participation in certification under 
averaging, banking, and/or trading is being sought. The equation in 
section Sec. 94.305 shall be used in this calculation for each engine 
family.
    (2) That the manufacturer will obtain sufficient credits to be used 
to comply with the emission standard for any engine family with an FEL 
that exceeds the applicable emission standard, or where credits will be 
applied if the FEL is less than the emission standard. In cases where 
credits are being obtained, for each engine family involved the 
manufacturer must identify specifically the source of the credits being 
used (manufacturer/engine family). All such reports shall include all 
credits involved in certification averaging, banking, or trading.
    (3) That in cases where credits are being generated/supplied, the 
use of such credits is specifically designated (manufacturer/engine 
family or reserved). All such reports shall include all credits involved 
in certification averaging, banking, or trading.
    (c) Manufacturers must monitor projected versus actual production 
throughout the model year to ensure that compliance with emission 
standards is achieved at the end of the model year.
    (d) At the end of the model year, the manufacturer must provide the 
end-of-year reports required under Sec. 94.309.
    (1) Projected credits based on the information supplied in the 
certification application may be used to obtain a certificate of 
conformity. However, any such projected credits must be validated based 
on review of the end of model year reports and may be revoked at a later 
time based on follow-up audits or any other verification measure deemed 
appropriate by the Administrator.
    (2) Compliance for engine families using averaging, banking, or 
trading will be determined at the end of the model year. Manufacturers 
that have certified engine families with credit balances for 
THC+NOX and/or PM that do not equal or exceed zero shall be 
in violation of the conditions of the certificate of conformity for such 
engine families. The certificate of conformity may be voided ab initio 
for those engine families.
    (e) Other conditions of certification.
    (1) All certificates issued are conditional upon compliance by the 
manufacturer with the provisions of this subpart both during and after 
the calendar year of production.
    (2) Failure to comply with all provisions of this subpart will be 
considered to be a failure to satisfy the conditions upon which the 
certificate was issued, and the certificate may be deemed void ab 
initio.
    (3) The manufacturer bears the burden of establishing to the 
satisfaction of the Administrator that the conditions upon which the 
certificate 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 be 
included on the label required in Sec. 94.212.



Sec. 94.308  Maintenance of records.

    (a) The manufacturer of any engine that is certified under the 
averaging, banking, and trading program must establish, maintain, and 
retain the following adequately organized and indexed records for each 
such 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.

[[Page 655]]

    (b) The manufacturer of any engine family that is certified under 
the averaging, banking, and trading program must establish, maintain, 
and retain the following adequately organized and indexed records for 
each 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 calendar 
year;
    (5) Actual applicable production/sales volume for the calendar year; 
and
    (6) Useful life.
    (c) Any manufacturer producing an engine family participating in 
trading of credits must maintain the following records on a quarterly 
basis for each engine family in the trading program:
    (1) The model year and engine family;
    (2) The actual quarterly and cumulative applicable production/sales 
volume;
    (3) The values required to calculate credits as given in Sec. 
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 be 
maintained under this section for a period of 8 years from the due date 
for the end-of-calendar year report. Records may be retained as hard 
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 is retained.
    (e) Nothing in this section limits the Administrator's discretion in 
requiring the manufacturer to retain additional records or submit 
information not specifically required by this section.
    (f) Pursuant to a request made by the Administrator, the 
manufacturer must submit to the Administrator the information that the 
manufacturer is required to retain.
    (g) EPA may void ab initio a certificate of conformity for an engine 
family for which the manufacturer fails to retain the records required 
in this section or to provide such information to the Administrator upon 
request.



Sec. 94.309  Reports.

    (a) Manufacturers must submit the certification information as 
required under Sec. 94.306, and end-of-year reports each year as part 
of their participation in certification averaging, banking, and trading 
programs.
    (b) Quarterly reports. All entities involved in credit trades must 
submit quarterly reports. The reports shall include the source or 
recipient of the credits, the amount of credits involved plus remaining 
balances, details regarding the pollutant, and model year as well as the 
information prescribed in Sec. 94.308(c). Copies of contracts related 
to credit trading must be included or supplied by the buyer, seller, and 
broker, as applicable.
    (c) End-of-year reports must include the information prescribed in 
Sec. 94.308(b). The report shall include a calculation of credit 
balances for each family to show that the summation of the 
manufacturer's use of credits results in a credit balance equal to or 
greater than zero. The report shall be consistent in detail with the 
information submitted under Sec. 94.306 and show how credit surpluses 
were dispersed and how credit shortfalls were met on a family specific 
basis. The end-of-year report shall incorporate 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 of first 
retail sale by the manufacturer or the point at which the engine is 
placed into service, whichever occurs first. This is called the final 
product purchase location.
    (e) Each quarterly and end-of-year report submitted shall include a 
statement certifying to the accuracy and authenticity of the material 
reported therein.
    (f) Requirements for submission. (1) Quarterly reports must be 
submitted within 90 days of the end of the calendar quarter to the 
Designated Officer.
    (2) End-of-year reports must be submitted within 120 days of the end 
of the

[[Page 656]]

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-year 
reports in the specified time for all engines is a violation of sections 
203(a)(1) and 213 of the Clean Air Act for each engine.
    (4) A manufacturer generating credits for banking only who fails to 
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 the 
credits until such reports are received and reviewed by EPA. Use of 
projected credits pending EPA review is not permitted in these 
circumstances.
    (g) Reporting errors. (1) Errors discovered by EPA or the 
manufacturer in the end-of-year report, including errors in credit 
calculation, may be corrected 180-days subsequent to submission of the 
end-of-year report. Errors discovered by EPA after 180-days shall be 
correctable if, as a result of the correction, the manufacturer's 
credits are reduced. Errors in the manufacturer's favor are not 
corrected if discovered after the 180-day correction period allowed.
    (2) If EPA or the manufacturer determines that a reporting error 
occurred on an end-of-year report previously submitted to EPA under this 
section, the manufacturer's credits and credit calculations will be 
recalculated. Erroneous positive credits will be void. Erroneous 
negative credit balances may be corrected by EPA.
    (3) If EPA review of a manufacturer's end-of-year report indicates a 
credit shortfall, the manufacturer will be permitted to purchase the 
necessary credits to bring the credit balance to zero. These credits 
must be supplied at the ratio of 1.1 credits for each 1.0 credit needed. 
If sufficient credits are not available to bring the credit balance to 
zero for the family(ies) involved, EPA may void the certificate(s) for 
that family(ies) ab initio. In addition, all engines within an engine 
family for which there are insufficient credits will be considered to 
have violated the conditions of the certificate of conformity and 
therefore are not covered by that certificate.
    (4) If within 180 days of receipt of the manufacturer's end-of-year 
report, EPA review determines a reporting error in the manufacturer's 
favor (that is, resulting in an increased credit balance) or if the 
manufacturer discovers such an error within 180 days of EPA receipt of 
the end-of-year report, the credits are restored for use by the 
manufacturer.



Sec. 94.310  Notice of opportunity for hearing.

    Any voiding of the certificate under this subpart will be made only 
after the manufacturer concerned has been offered an opportunity for a 
hearing conducted in accordance with Sec. 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 manufacturers of 
engines subject to the provisions of Subpart A of this part. The 
requirement to report emission-related defects affecting a given class 
or category of engines applies for eight years from the end of the year 
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 whenever it 
determines, in accordance with procedures it established to identify 
either safety-related or performance defects (or based on other 
information), that a specific emission-related defect exists in 25 or 
more Category 1 marine engines, or 10 or more Category 2 marine engines, 
or 2 or more Category 3 engines or cylinders. No report must be filed 
under this paragraph for any emission-related defect corrected prior to 
the sale of the affected engines to an

[[Page 657]]

ultimate purchaser. (Note: These limits apply to the occurrence of the 
same defect, and are not constrained by engine family or model year.)
    (b) Defect information reports required under paragraph (a) of this 
section must be submitted not more than 15 working days after the same 
emission-related defect is found to effect 25 or more Category 1 marine 
engines, or 10 or more Category 2 marine engines. Information required 
by paragraph (c) of this section that is either not available within 15 
working days or is significantly revised must be submitted as it becomes 
available.
    (c) Except as provided in paragraph (b) of this section, each defect 
report must contain the following information in substantially the 
format outlined:
    (1) The manufacturer's corporate name.
    (2) A description of the defect.
    (3) A description of each class or category of engines potentially 
affected by the defect including make, model, calendar year produced, 
purchaser and any other information as may be required to identify the 
engines affected.
    (4) For each class or category of engines described in response to 
paragraph (c)(3) of this section, the following shall also be provided:
    (i) The number of engines known or estimated to have the defect and 
an explanation of the means by which this number was determined.
    (ii) The address of the plant(s) at which the potentially defective 
engines were produced.
    (5) An evaluation of the emissions impact of the defect and a 
description of any operational or performance problems which a defective 
engine might exhibit.
    (6) Available emissions data which relate to the defect.
    (7) An indication of any anticipated follow-up by the manufacturer.

[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 recall 
campaign involving an engine, the manufacturer shall submit to EPA a 
report describing the manufacturer's voluntary emissions recall plan as 
prescribed by this section within 15 working days of the date owner 
notification was begun. The report shall contain the following:
    (1) A description of each class or category of engines recalled 
including the number of engines to be recalled, the calendar year if 
applicable, the make, the model, and such other information as may be 
required to identify the engines recalled.
    (2) A description of the specific modifications, alterations, 
repairs, corrections, adjustments, or other changes to be made to 
correct the engines affected by the emission-related defect.
    (3) A description of the method by which the manufacturer will 
notify engine owners.
    (4) A description of the proper maintenance or use, if any, upon 
which the manufacturer conditions eligibility for repair under the 
remedial plan, an explanation of the manufacturer's reasons for imposing 
any such condition, and a description of the proof to be required of an 
engine owner to demonstrate compliance with any such condition.
    (5) A description of the procedure to be followed by engine owners 
to obtain correction of the nonconformity. This shall include 
designation of the date on or after which the owner can have the 
nonconformity remedied, the time reasonably necessary to perform the 
labor to remedy the defect, and the designation of facilities at which 
the defect can be remedied.
    (6) If some or all the nonconforming engines are to be remedied by 
persons other than authorized warranty agents of the manufacturer, a 
description of the class of persons other than authorized warranty 
agents 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 will 
assure that an adequate supply of parts will be available to perform the 
repair under the remedial plan including the date by which an adequate 
supply of parts will be available to initiate the repair campaign, the 
percentage of the total parts requirement of each person who is to 
perform the repair under the

[[Page 658]]

remedial plan to be shipped to initiate the campaign, and the method to 
be used to assure the supply remains both adequate and responsive to 
owner demand.
    (9) Three copies of all necessary instructions to be sent to those 
persons who are to perform the repair under the remedial plan.
    (10) A description of the impact of the changes on fuel consumption, 
operation or performance, and safety of each class or category of 
engines to be recalled.
    (11) A sample of any label to be applied to engines which 
participate in the voluntary recall campaign.
    (b) Unless otherwise specified by the Administrator, the 
manufacturer shall report on the progress of the recall campaign by 
submitting subsequent reports for six consecutive quarters, or until 
proven that remedial action has been adequately taken on all affected 
engines, whichever occurs first, commencing with the quarter after the 
voluntary emissions recall campaign actually begins. Such reports shall 
be submitted no later than 25 working days after the close of each 
calendar quarter. For each class or group of engine subject to the 
voluntary emissions recall campaign, the quarterly report shall contain 
the:
    (1) Emission recall campaign number, if any, designated by the 
manufacturer.
    (2) Date owner notification was begun, and date completed.
    (3) Number of engines involved in the voluntary emissions recall 
campaign.
    (4) Number of engines known or estimated to be affected by the 
emission-related defect and an explanation of the means by which this 
number was determined.
    (5) Number of engines inspected pursuant to voluntary emission 
recall plan.
    (6) Number of inspected engines found to be affected by the 
emissions-related defect.
    (7) Number of engines actually receiving repair under the remedial 
plan.
    (8) Number of engines determined to be unavailable for inspection or 
repair under the remedial plan due to exportation, scrappage, or for 
other reasons (specify).
    (9) Number of engines determined to be ineligible for remedial 
action due to a failure to properly maintain or use such engines.
    (10) Three copies of any service bulletins which relate to the 
defect to be corrected and which have not previously been reported.
    (11) Three copies of all communications transmitted to engine owners 
which relate to the defect to be corrected and which have not previously 
been submitted.
    (c) If the manufacturer determines that any of the information 
requested in paragraph (b) of this section has changed or was incorrect, 
revised information and an explanatory note shall be submitted. Answers 
to paragraphs (b)(5), (6), (7), (8), and (9) of this section shall be 
cumulative totals.
    (d) The manufacturer shall maintain in a form suitable for 
inspection, such as computer information storage devices or card files, 
the names and addresses of engine owners:
    (1) To whom notification was given;
    (2) Who received remedial repair or inspection under the remedial 
plan; and
    (3) Who were determined not to qualify for such remedial action when 
eligibility is conditioned on proper maintenance or use.
    (e) The records described in paragraph (d) of this section shall be 
made available to the Administrator upon request.



Sec. 94.405  Alternative report formats.

    (a) Any manufacturer may submit a plan for making either of the 
reports required by Sec. Sec. 94.403 and 94.404 on computer diskettes, 
magnetic tape or other machine readable format. The plan shall be 
accompanied by sufficient technical detail to allow a determination that 
data requirements of these sections will be met and 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 the 
Administrator.

[[Page 659]]



Sec. 94.406  Reports filing: record retention.

    (a) The reports required by Sec. Sec. 94.403 and 94.404 shall be 
sent to the Designated Officer.
    (b) The information gathered by the manufacturer to compile the 
reports required by Sec. Sec. 94.403 and 94.404 shall be retained for 
not less than 8 years from the date of the manufacture of the engines 
and shall be made available to duly authorized officials of the EPA upon 
request.



Sec. 94.407  Responsibility under other legal provisions preserved.

    The filing of any report under the provisions of this subpart shall 
not affect a manufacturer's responsibility to file reports or 
applications, obtain approval, or give notice under any provision of 
law.



Sec. 94.408  Disclaimer of production warranty applicability.

    (a) The act of filing an Emission Defect Information Report pursuant 
to Sec. 94.403 is inconclusive as to the existence of a defect subject 
to the warranty provided by section 207(a) of the Act.
    (b) A manufacturer may include on each page of its Emission Defect 
Information Report a disclaimer stating that the filing of a Defect 
Information Report pursuant to this subpart is not conclusive as to the 
applicability of the Production Warranty provided by section 207(a) of 
the Act.



         Subpart F_Manufacturer Production Line Testing Programs



Sec. 94.501  Applicability.

    (a) The requirements of this subpart are applicable to manufacturers 
of engines subject to the provisions of subpart A of this part, 
excluding small-volume manufacturers.
    (b) The provisions of subpart F of 40 CFR part 89 (Selective 
Enforcement Audit) apply to engines subject to the provisions of subpart 
A of this part.
    (c) Manufacturers may comply with the provisions of 40 CFR part 
1042, subpart D, instead of the provisions of this subpart F.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68346, Nov. 8, 2002; 73 
FR 37197, June 30, 2008]



Sec. 94.502  Definitions.

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



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 with 
sampling procedures specified in Sec. 94.505 and the test procedures 
specified in Sec. 94.506. The production-line testing requirements of 
this part do not apply for other engines.
    (b) Upon request, the Administrator may also allow manufacturers to 
conduct alternate production line testing programs for Category 1 and 
Category 2 engines, provided the Administrator determines that the 
alternate production line testing program provides equivalent assurance 
that the engines that are being produced conform to the provisions of 
this part. As part of this allowance or for other reasons, the 
Administrator may waive some or all of the requirements of this subpart.
    (c) The requirements of this subpart apply with respect to all 
applicable standards and FELs of subpart A of this part, including the 
supplemental 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 engine families 
consistently pass the production-line testing requirements over the 
preceding two-year period, you may ask for a reduced testing rate for 
further production-line testing for that family. The minimum testing 
rate is one engine per engine family. If we reduce your testing rate, we 
may limit our approval to any number of model years. In determining 
whether to approve your request, we may consider the number of engines 
that have failed the emission tests.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68341, Nov. 8, 2002; 68 
FR 9787, Feb. 28, 2003]

[[Page 660]]



Sec. 94.504  Right of entry and access.

    (a) To allow the Administrator to determine whether a manufacturer 
is complying with the provisions of this part, one or more EPA 
enforcement officers may enter during operating hours and upon 
presentation of credentials any of the following places:
    (1) Any facility, including ports of entry, where any engine is to 
be introduced into commerce or any emission-related component is 
manufactured, assembled, or stored;
    (2) Any facility where any test conducted pursuant to a 
manufacturer's production line testing program or any procedure or 
activity 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 under Sec. 94.509 or 
other document relating to this subpart is located.
    (b) Upon admission to any facility referred to in paragraph (a) of 
this section, EPA enforcement officers are authorized to perform the 
following inspection-related activities:
    (1) To inspect and monitor any aspect of engine manufacture, 
assembly, storage, testing and other procedures, and to inspect and 
monitor the facilities in which these procedures are conducted;
    (2) To inspect and monitor any aspect of engine test procedures or 
activities, including test engine selection, preparation and service 
accumulation, emission duty cycles, and maintenance and verification of 
test equipment calibration;
    (3) To inspect and make copies of any records or documents related 
to the assembly, storage, selection, and testing of an engine; and
    (4) To inspect and photograph any part or aspect of any engine and 
any component used in the assembly thereof that is reasonably related to 
the purpose of the entry.
    (c) EPA enforcement officers are authorized to obtain reasonable 
assistance without cost from those in charge of a facility to help the 
officers perform any function listed in this subpart and they are 
authorized to request the manufacturer to make arrangements with those 
in charge of a facility operated for the manufacturer benefit to furnish 
reasonable assistance without cost to EPA.
    (1) Reasonable assistance includes, but is not limited to, clerical, 
copying, interpretation and translation services; the making available 
on an EPA enforcement officer's request of personnel of the facility 
being inspected during their working hours to inform the EPA enforcement 
officer of how the facility operates and to answer the officer's 
questions; and the performance on request of emission tests on any 
engine which is being, has been, or will be used for production line 
testing.
    (2) By written request, signed by the Assistant Administrator for 
Air and Radiation or the Assistant Administrator for Enforcement and 
Compliance Assurance, and served on the manufacturer, a manufacturer may 
be compelled to cause the personal appearance of any employee at such a 
facility before an EPA enforcement officer. Any such employee who has 
been instructed by the manufacturer to appear will be entitled to be 
accompanied, represented, and advised by counsel.
    (d) EPA enforcement officers are authorized to seek a warrant or 
court order authorizing the EPA enforcement officers to conduct the 
activities authorized in this section, as appropriate, to execute the 
functions specified in this section. EPA enforcement officers may 
proceed ex parte to obtain a warrant or court order whether or not the 
EPA enforcement officers first attempted to seek permission from the 
manufacturer or the party in charge of the facility(ies) in question to 
conduct the activities authorized in this section.
    (e) A manufacturer is responsible for locating its foreign testing 
and manufacturing facilities in jurisdictions where local law does not 
prohibit an EPA enforcement officer(s) from conducting the activities 
specified in this section. EPA will not attempt to make any inspections 
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 begin to 
select engines from each Category 1 and Category 2 engine family for 
production

[[Page 661]]

line testing. Each engine will be selected from the end of the 
production line. Testing shall be performed throughout the entire model 
year to the extent possible. Engines selected shall cover the broadest 
range of production possible.
    (1)(i) The required sample size for Category 1 engine manufacturers 
is one percent of projected annual U.S.-directed production for all 
Category 1 engine families, provided that no engine tested fails to meet 
applicable emission standards. Test engines shall include a proportional 
sample from each engine family. The required sample size is zero if a 
manufacturer's projected annual production for all Category 1 engine 
families is less than 100.
    (ii) The required sample size for a Category 2 engine family is one 
percent of projected annual U.S.-directed production for that engine 
family, with a minimum sample size of one test per model year provided 
that no engine tested fails to meet applicable emission standards.
    (2) Manufacturers may elect to test additional engines. All 
additional engines must be tested in accordance with the applicable test 
procedures of this part.
    (3) The Administrator may reject any engines selected by the 
manufacturer if he/she determines that such engines are not 
representative of actual production.
    (b) The manufacturer must assemble the test engines using the same 
mass production process that will be used for engines to be introduced 
into commerce.
    (c) No quality control, testing, or assembly procedures will be used 
on any test engine or any portion thereof, including parts and 
subassemblies, that have not been or will not be used during the 
production and assembly of all other engines of that family, except with 
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, the 
prescribed test procedures are those procedures described in Subpart B 
of this part, except as provided in this section.
    (2) The Administrator may, on the basis of a written application by 
a manufacturer, prescribe test procedures other than those specified in 
paragraph (a)(1) of this section for any engine he/she determines is not 
susceptible to satisfactory testing using procedures specified in 
paragraph (a)(1) of this section.
    (3) If test procedures other than those in Subpart B of this part 
were used in certification of the engine family being tested under this 
subpart (other than alternate test procedures necessary for testing of a 
development engine instead of a low hour engine under Sec. 94.9), the 
manufacturer shall use the test procedures used 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 this adjustment, 
repair, preparation, modification and/or test is documented in the 
manufacturer's engine assembly and inspection procedures and is actually 
performed by the manufacturer or unless this adjustment, repair, 
preparation, modification and/or test is required or permitted under 
this subpart or is approved in advance by the Administrator.
    (2) Any adjustable engine parameter must be set to values or 
positions that are within the range specified in the approved 
application for certification.
    (3) The Administrator may adjust or require to be adjusted any 
engine parameter which the Administrator has determined to be subject to 
adjustment for certification and production line testing, to any setting 
within the specified adjustable range of that parameter, as determined 
by the Administrator, prior to the performance of any test.
    (c) Service Accumulation/Green Engine Factor. The manufacturer shall 
accumulate up to 300 hours of service on the engines to be tested. In 
lieu of conducting such service accumulation, the manufacturer may 
establish a Green Engine Factor for each regulated pollutant for each 
engine family to be used in calculating emissions test results. The 
manufacturer shall obtain

[[Page 662]]

the approval of the Administrator prior to using a Green Engine Factor.
    (d) The manufacturer may not perform any maintenance on test engines 
after selection for testing.
    (e) If an engine is shipped to a facility other than the production 
facility for production line testing, and an adjustment or repair is 
necessary because of such shipment, the engine manufacturer must perform 
the necessary adjustment or repair only after the initial test of the 
engine, except where the Administrator has determined that the test 
would be impossible to perform or would permanently damage the engine.
    (f) If an engine cannot complete the service accumulation or an 
emission test, because of a malfunction, the manufacturer may request 
that the Administrator authorize either the repair of that engine or its 
deletion from the test sequence.
    (g) Retesting. If an engine manufacturer determines that any 
production line emission test of an engine is invalid, the engine must 
be retested in accordance with the requirements of this subpart. 
Emission results from all tests must be reported to EPA, including test 
results the manufacturer determines are invalid. The engine manufacturer 
must also include a detailed explanation of the reasons for invalidating 
any test in the quarterly report required in Sec. 94.508(e). In the 
event a retest is performed, a request may be made to the Administrator, 
within ten days of the end of the production quarter, for permission to 
substitute the after-repair test results for the original test results. 
The Administrator will either affirm or deny the request by the engine 
manufacturer within 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 a 
production line test, then the manufacturer must test two additional 
engines for each engine that fails.
    (b) The two additional engines tested under paragraph (a) of this 
section shall be selected from either the next fifteen produced in that 
engine family, or from those engines produced in that engine family 
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 the 
applicable test procedure specified in Sec. 94.506(a). These results 
must also include the Green Engine Factor, if applicable. Round these 
results to the number of decimal places contained in the applicable 
emission standard expressed to one additional significant figure.
    (b) To calculate test results, sum the initial test results derived 
in paragraph (a) of this section for each test engine, divide by the 
number of tests conducted on the engine, and round to the same number of 
decimal places contained in the applicable standard expressed to one 
additional decimal place. (For example, if the applicable standard is 
7.8, then round the test results to two places to the right of the 
decimal.)
    (c) To calculate the final test results for each test engine, apply 
the appropriate deterioration factors, derived in the certification 
process for the engine family, to the test results described in 
paragraph (b) of this section; round to the same number of decimal 
places contained in the applicable standard expressed to one additional 
decimal place. (For example, if the applicable standard is 7.8, then 
round the test results to two places to the right of the decimal.)
    (d)(1) If, subsequent to an initial failure of a Category 1 or 
Category 2 production line test, the average of the test results for the 
failed engine and the two additional engines tested, is greater than any 
applicable emission standard or FEL, the engine family is deemed to be 
in non-compliance with applicable emission standards, and the 
manufacturer must notify the Administrator within 2 working days of such 
noncompliance.
    (2) [Reserved]
    (e) Within 30 calendar days of the end of each quarter in which 
production line testing occurs, each manufacturer

[[Page 663]]

must submit to the Administrator a report which includes the following 
information:
    (1) The location and description of the manufacturer's emission test 
facilities which were utilized to conduct 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 engine 
family 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 to 
testing; and
    (E) Description of Green Engine Factor; how it is determined and how 
it is applied;
    (ii) Location(s) where service accumulation was conducted and 
description of accumulation procedure and schedule, if applicable;
    (iii) Test number, date, test procedure used, initial test results 
before and after rounding, and final test results for all production 
line emission tests conducted, whether valid or invalid, and the reason 
for invalidation of any test results, if applicable;
    (iv) A complete description of any adjustment, modification, repair, 
preparation, maintenance, and testing which was performed on the test 
engine, has not been reported pursuant to any other paragraph of this 
subpart, and will not be performed on other production engines;
    (v) Any other information the Administrator may request relevant to 
the determination whether the new engines being manufactured by the 
manufacturer do in fact conform with the regulations with respect to 
which 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 as required 
by Sec. 94.512(g);
    (7) The date of the end of the engine manufacturer's model year 
production for each engine family tested; and
    (8) The following signed statement and endorsement by an authorized 
representative of the manufacturer:

    This report is submitted pursuant to Sections 213 and 208 of the 
Clean Air Act. This production line testing program was conducted in 
complete conformance with all applicable regulations under 40 CFR part 
94. No emission-related changes to production processes or quality 
control procedures for the engine family tested have been made during 
this production line testing program that affect engines from the 
production line. All data and information reported herein is, to the 
best of (Company Name) knowledge, true and accurate. I am aware of the 
penalties associated with violations of the Clean Air Act and the 
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 the 
provisions of this subpart must establish, maintain, and retain the 
following adequately organized and indexed records:
    (1) General records. A description of all equipment used to test 
engines in accordance with Sec. 94.503. The equipment requirements in 
Subpart B of this part apply to tests performed under this subpart.
    (2) Individual records. These records pertain to each production 
line 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 or 
the number of hours of service accumulated on the test engine when the 
test began and ended;
    (iii) The names of all supervisory personnel involved in the conduct 
of the production line test;
    (iv) A record and description of any adjustment, repair, preparation 
or modification performed on test engines, giving the date, associated 
time, justification, name(s) of the authorizing personnel, and names of 
all supervisory personnel responsible for the conduct of the action;
    (v) If applicable, the date the engine was shipped from the assembly 
plant,

[[Page 664]]

associated storage facility or port facility, and the date the engine 
was received at the testing facility;
    (vi) A complete record of all emission tests performed pursuant to 
this subpart (except tests performed directly by EPA), including all 
individual worksheets and/or other documentation relating to each test, 
or exact copies thereof, in accordance with the record requirements 
specified in Subpart B of this part;
    (vii) A brief description of any significant events during testing 
not otherwise described under this paragraph (a)(2) of this section, 
commencing with the test engine selection process and including such 
extraordinary events as engine damage during shipment.
    (3) The manufacturer must establish, maintain and retain general 
records, pursuant to paragraph (a)(1) of this section, for each test 
cell that can be used to perform emission testing under this subpart.
    (b) The manufacturer must retain all records required to be 
maintained under this subpart for a period of eight (8) years after 
completion of all testing. Records may be retained as hard copy (i.e., 
on paper) or reduced to 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 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 engine 
family 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 discretion to 
require a manufacturer to establish, maintain, retain or submit to EPA 
information not specified by this section.
    (e) All reports, submissions, notifications, and requests for 
approval made under this subpart must be addressed to the Designated 
Officer.
    (f) The manufacturer must electronically submit the results of its 
production 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 to 
Sec. 94.508(c), for one or more of the applicable pollutants, exceed an 
applicable emission standard or FEL.
    (b) A Category 1 or Category 2 engine family is deemed to be in 
noncompliance, for purposes of this subpart, if at any time throughout 
the model year, the average of an initial failed engine and the two 
additional engines tested, is greater than any applicable emission 
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 any 
engine that fails a production line test pursuant to Sec. 94.510(a), 
effective from the time the testing of that engine is completed.
    (b) The Administrator may suspend the certificate of conformity for 
an engine family which is in noncompliance pursuant to Sec. 94.510(b), 
thirty days after the engine family is deemed to be in noncompliance.
    (c) If the results of testing pursuant to this subpart indicate that 
engines of a particular family produced at one plant of a manufacturer 
do not conform to the regulations with respect to which the certificate 
of conformity was issued, the Administrator may suspend the certificate 
of conformity with respect to that family for engines manufactured by 
the manufacturer at all other plants.
    (d) The Administrator may suspend a certificate of conformity for 
any engine family in whole or in part if:
    (1) The manufacturer fails to comply with any of the requirements of 
this subpart.
    (2) The manufacturer submits false or incomplete information in any 
report or information provided to the Administrator under this subpart.

[[Page 665]]

    (3) The manufacturer renders inaccurate any test data submitted 
under this subpart.
    (4) An EPA enforcement officer is denied the opportunity to conduct 
activities authorized in this subpart.
    (5) An EPA enforcement officer is unable to conduct activities 
authorized in Sec. 94.504 for any reason.
    (e) The Administrator shall notify the manufacturer in writing of 
any suspension or revocation of a certificate of conformity in whole or 
in part; a suspension or revocation is effective upon receipt of such 
notification or thirty days from the time an engine family is deemed to 
be in noncompliance under Sec. Sec. 94.508(d), 94.510(a), or 94.510(b), 
whichever is earlier, except that the certificate is immediately 
suspended with respect to any failed engines as provided for in 
paragraph (a) of this section.
    (f) The Administrator may revoke a certificate of conformity for an 
engine family when the certificate has been suspended pursuant to 
paragraph (b) or (c) of this section if the remedy is one requiring a 
design change or changes to the engine and/or emission control system as 
described in the application for certification of the affected engine 
family.
    (g) Once a certificate has been suspended for a failed engine, as 
provided for in paragraph (a) of this section, the manufacturer must 
take the following actions before the certificate is reinstated for that 
failed engine:
    (1) Remedy the nonconformity;
    (2) Demonstrate that the engine conforms to applicable standards or 
family emission limits by retesting if applicable, the engine in 
accordance with this part; and
    (3) Submit a written report to the Administrator, after successful 
completion of testing on the failed engine, which contains a description 
of the remedy and test results for each engine in addition to other 
information that may be required by this part.
    (h) Once a certificate for a failed engine family has been suspended 
pursuant to paragraph (b) or (c) of this section, the manufacturer must 
take the following actions before the Administrator will consider 
reinstating the certificate:
    (1) Submit a written report to the Administrator which identifies 
the reason for the noncompliance of the engines, describes the remedy, 
including a description of any quality control and/or quality assurance 
measures to be taken by the manufacturer to prevent future occurrences 
of the problem, and states the date on which the remedies will be 
implemented.
    (2) Demonstrate that the engine family for which the certificate of 
conformity has been suspended does in fact comply with the regulations 
of this part by testing engines selected from normal production runs of 
that engine family. Such testing must comply with the provisions of this 
subpart. If the manufacturer elects to continue testing individual 
engines after suspension of a certificate, the certificate is reinstated 
for any engine actually determined to be in conformance with the 
applicable standards or family emission limits through testing in 
accordance with the applicable test procedures, provided that the 
Administrator has not revoked the certificate pursuant to paragraph (f) 
of this section.
    (i) Once the certificate has been revoked for an engine family, if 
the manufacturer desires to continue introduction into commerce of a 
modified version of that family, the following actions must be taken 
before the Administrator may issue a certificate for that modified 
family:
    (1) If the Administrator determines that the change(s) in engine 
design may have an effect on emission performance deterioration, the 
Administrator shall notify the manufacturer, within five working days 
after receipt of the report in paragraph (h)(1) of this section, whether 
subsequent testing under this subpart will be sufficient to evaluate the 
change or changes or whether additional testing will be required; and
    (2) After implementing the change or changes intended to remedy the 
nonconformity, the manufacturer must demonstrate that the modified 
engine family does in fact conform with the regulations of this part by 
testing engines selected from normal production runs of that engine 
family. When both

[[Page 666]]

of these requirements are met, the Administrator shall reissue the 
certificate or issue a new certificate, as the case may be, to include 
that family. If this subsequent testing reveals failing data the 
revocation remains in effect.
    (j) At any time subsequent to an initial suspension of a certificate 
of conformity for a test engine pursuant to paragraph (a) of this 
section, but not later than 30 days (or such other period as may be 
allowed by the Administrator) after notification of the Administrator's 
decision to suspend or revoke a certificate of conformity in whole or in 
part pursuant to paragraph (b), (c), or (f) of this section, a 
manufacturer may request a hearing as to whether the tests have been 
properly conducted 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 concerned has been 
offered an opportunity for a hearing conducted in accordance with 
Sec. Sec. 94.513, 94.514, and 94.515; and
    (2) Need not apply to engines no longer in the possession of the 
manufacturer.
    (l) After the Administrator suspends or revokes a certificate of 
conformity pursuant to this section or voids a certificate of conformity 
under paragraph Sec. 94.215, and prior to the commencement of a hearing 
under Sec. 94.513, if the manufacturer demonstrates to 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 engines while 
conducting subsequent testing of the noncomplying family, a manufacturer 
may request that the Administrator conditionally reinstate the 
certificate for that family. The Administrator may reinstate the 
certificate subject to the following condition: the manufacturer must 
commit to recall all engines of that family produced from the time the 
certificate is conditionally reinstated if the family fails subsequent 
testing and must commit to remedy any nonconformity at no expense to the 
owner.



Sec. 94.513  Request for public hearing.

    (a) If the manufacturer disagrees with the Administrator's decision 
to suspend or revoke a certificate or disputes the basis for an 
automatic suspension pursuant to Sec. 94.512(a), the manufacturer may 
request a public hearing.
    (b) The manufacturer's request shall be filed with the Administrator 
not later than 30 days after the Administrator's notification of his or 
her decision to suspend or revoke, unless otherwise specified by the 
Administrator. The manufacturer shall simultaneously serve two copies of 
this request upon the Designated Officer and file two copies with the 
Hearing Clerk of the Agency. Failure of the manufacturer to request a 
hearing within the time provided constitutes a waiver of the right to a 
hearing. Subsequent to the expiration of the period for requesting a 
hearing as of right, the Administrator may, in his or her discretion and 
for good cause shown, grant the manufacturer a hearing to contest the 
suspension or revocation.
    (c) A manufacturer shall include in the request for a public 
hearing:
    (1) A statement as to which configuration(s) within a family is to 
be the subject of the hearing;
    (2) A concise statement of the issues to be raised by the 
manufacturer at the hearing, except that in the case of the hearing 
requested under Sec. 94.512(j), the hearing is restricted to the 
following issues:
    (i) Whether tests have been properly conducted (specifically, 
whether the tests were conducted in accordance with applicable 
regulations under this part and whether test equipment was properly 
calibrated and functioning);
    (ii) Whether there exists a basis for distinguishing engines 
produced at plants other than the one from which engines were selected 
for testing which would invalidate the Administrator's decision under 
Sec. 94.512(c));
    (3) A statement specifying reasons why the manufacturer believes it 
will prevail on the merits of each of the issues raised; and

[[Page 667]]

    (4) A summary of the evidence which supports the manufacturer's 
position on each of the issues raised.
    (d) A copy of all requests for public hearings will be kept on file 
in the Office of the Hearing Clerk and will be made available to the 
public during Agency business hours.



Sec. 94.514  Administrative procedures for public hearing.

    (a) The Presiding Officer shall be an Administrative Law Judge 
appointed pursuant to 5 U.S.C. 3105 (see also 5 CFR part 930).
    (b) The Judicial Officer shall be an officer or employee of the 
Agency appointed as a Judicial Officer by the Administrator, pursuant to 
this section, who shall meet the qualifications and perform functions as 
follows:
    (1) Qualifications. A Judicial Officer may be a permanent or 
temporary employee of the Agency who performs other duties for the 
Agency. The Judicial Officer shall not be employed by the Office of 
Enforcement or have any connection with the preparation or presentation 
of evidence for a hearing held pursuant to this subpart. The Judicial 
Officer shall be a graduate of an accredited law school and a member in 
good standing of a recognized Bar Association of any state or the 
District of Columbia.
    (2) Functions. The Administrator may consult with the Judicial 
Officer or delegate all or part of the Administrator's authority to act 
in a given case under this section to a Judicial Officer, provided that 
this delegation does not preclude the Judicial Officer from referring 
any motion or case to the Administrator when the Judicial Officer 
determines such referral to be appropriate.
    (c) For the purposes of this section, one or more Judicial Officers 
may be designated by the Administrator. As work requires, a Judicial 
Officer may be designated to act for the purposes of a particular case.
    (d)(1) In the case of a hearing requested under Sec. 94.512(j), 
when it clearly appears from the data and other information contained in 
the request for a hearing that no genuine and substantial question of 
fact or law exists with respect to the issues specified in Sec. 
94.513(c)(2), the Administrator may enter an order denying the request 
for a hearing and reaffirming the original decision to suspend or revoke 
a certificate of conformity.
    (2) In the case of a hearing requested under Sec. 94.513 to 
challenge a suspension of a certificate of conformity for the reason(s) 
specified in Sec. 94.512(d), when it clearly appears from the data and 
other information contained in the request for the hearing that no 
genuine and substantial question of fact or law exists with respect to 
the issue of whether the refusal to comply with this subpart was caused 
by conditions and circumstances outside the control of the manufacturer, 
the Administrator may enter an order denying the request for a hearing 
and suspending the certificate of conformity.
    (3) Any order issued under paragraph (d)(1) or (d)(2) of this 
section has the force and effect of a final decision of the 
Administrator, as issued pursuant to Sec. 94.516.
    (4) If the Administrator determines that a genuine and substantial 
question of fact or law does exist with respect to any of the issues 
referred to in paragraphs (d)(1) and (d)(2) of this section, the 
Administrator shall grant the request for a hearing and publish a notice 
of public hearing in the Federal Register or by such other means as the 
Administrator finds appropriate to provide notice to the public.
    (e) Filing and service. (1) An original and two copies of all 
documents or papers required or permitted to be filed pursuant to this 
section and Sec. 94.513(c) must be filed with the Hearing Clerk of the 
Agency. Filing is considered timely if mailed, as determined by the 
postmark, to the Hearing Clerk within the time allowed by this section 
and Sec. 94.513(b). If filing is to be accomplished by mailing, the 
documents must be sent to the address set 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 in 
written form. Copies of written testimony will be served upon all 
parties as soon as practicable prior to the start of the hearing. A 
certificate of service will be provided on or accompany each document or 
paper filed with the Hearing

[[Page 668]]

Clerk. Documents to be served upon the Director of the Engine Programs 
and Compliance Division must be sent by registered mail to: Director, 
Engine Programs and Compliance Division 6403-J, U.S. Environmental 
Protection Agency, 401 M St. SW., Washington, DC 20460. Service by 
registered mail is complete upon mailing.
    (f) Computation of time. (1) In computing any period of time 
prescribed or allowed by this section, except as otherwise provided, the 
day of the act or event from which the designated period of time begins 
to run is not included. Saturdays, Sundays, and federal legal holidays 
are included in computing the period allowed for the filing of any 
document or paper, except that when the period expires on a Saturday, 
Sunday, or federal legal holiday, the period is extended to include the 
next following business day.
    (2) A prescribed period of time within which a party is required or 
permitted to do an act is computed from the time of service, except that 
when service is accomplished by mail, three days will be added to the 
prescribed period.
    (g) Consolidation. The Administrator or the Presiding Officer in his 
or her discretion may consolidate two or more proceedings to be held 
under this section for the purpose of resolving one or more issues 
whenever it appears that consolidation will expedite or simplify 
consideration of these issues. Consolidation does not affect the right 
of any party to raise issues that could have been raised if 
consolidation had not occurred.
    (h) Hearing date. To the extent possible hearings under Sec. 94.513 
will be scheduled to commence within 14 days of receipt 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. 94.513 regarding suspension, 
revocation, or voiding of a certificate of conformity.



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 to Sec. 
94.515.



Sec. 94.517  Treatment of confidential information.

    Except for information required by Sec. 94.508(e)(2) and quarterly 
emission test results described in Sec. 94.508(e), information 
submitted pursuant to this subpart shall be made available to the public 
by EPA, notwithstanding any claim of confidentiality made by the 
submitter. The provisions for treatment of confidential information 
described in Sec. 94.4 apply to the information required by Sec. 
94.508(e)(2) and quarterly emission test results described in Sec. 
94.508(e).

Subpart G [Reserved]



                      Subpart H_Recall Regulations



Sec. 94.701  Applicability.

    The requirements of this subpart are applicable to all engines 
subject 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 to recall 
regulations specified in 40 CFR part 85, subpart S, except for the 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, rather 
than 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 94 promulgated under section 
213 of the Act applies, rather than the reference to ``family 
particulate emission limits as defined in 40 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''.

[[Page 669]]



             Subpart I_Importation of Nonconforming Engines



Sec. 94.801  Applicability.

    (a) Except where otherwise indicated, this subpart is applicable to 
importers of engines (and vessels containing engines) for which the 
Administrator has promulgated regulations under this part prescribing 
emission standards, that are offered for importation or imported into 
the United States, but which engines, at the time of importation or 
being offered for importation, are not covered by certificates of 
conformity issued under section 213 and section 206(a) of the Clean Air 
Act (that is, which are nonconforming engines as defined in Sec. 94.2), 
and this part. Compliance with regulations under this subpart does not 
relieve any person or entity from compliance with other applicable 
provisions of the Clean Air Act.
    (b) Regulations prescribing further procedures for the importation 
of engines into the Customs territory of the United States are set forth 
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 admitted 
into the United States pursuant to the provisions of this subpart. 
Subpart C of this part, including Sec. 94.222, describes how to certify 
engines installed on vessels before they are imported.
    (b) To obtain admission, the importer must submit to the 
Administrator a written request for approval containing the following:
    (1) Identification of the importer of the engine and the importer's 
address, telephone number, and taxpayer identification number;
    (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 under which 
the engine is to be imported, including a demonstration of how it 
qualifies for the requested exemption;
    (5) Identification of the place(s) where the engine is to be stored 
until EPA approval of the importer's application to the Administrator 
for final admission;
    (6) Authorization for EPA enforcement officers to conduct 
inspections or testing otherwise permitted by the Act or regulations 
thereunder; and
    (7) Such other information as is deemed necessary by the 
Administrator.



Sec. 94.804  Exemptions.

    (a) General provisions. (1) Unless otherwise specified, any person 
may apply for the exemptions allowed by this section.
    (2) Paragraph (b) of this section describes the provisions that 
apply to temporary exemptions. Paragraph (c) of this section describes 
provisions that apply to permanent exemptions.
    (3) Applications for exemption under this section shall be mailed to 
the Designated Officer.
    (b) Notwithstanding other requirements of this subpart, a 
nonconforming engine that qualifies for a temporary exemption under this 
paragraph (b) may be conditionally admitted into the United States if 
prior written approval for the conditional admission is obtained from 
the Administrator. Conditional admission is to be under bond. The 
Administrator may request that the U.S. Customs Service require a 
specific bond amount to ensure compliance with the requirements of the 
Act and this subpart. A written request for a temporary exemption from 
the Administrator shall contain the information required in Sec. 
94.803. Noncompliance with the provisions of this paragraph (b) will be 
considered unlawful importation and may result in the forfeiture of the 
total amount of the bond, exportation of the engine, and/or imposition 
of civil penalties.
    (1) Exemption for repairs or alterations. A person may conditionally 
import

[[Page 670]]

under bond a nonconforming engine solely for purpose of repair(s) or 
alteration(s). The engine may not be operated in the United States other 
than for the sole purpose of repair or alteration or shipment to the 
point of repair or alteration and to the port of export. It may not be 
sold or leased in the United States and is to be exported upon 
completion of the repair(s) or alteration(s).
    (2) Testing exemption. A person may conditionally import under bond 
a nonconforming engine for testing, subject to the requirements of Sec. 
94.905. A test engine may be operated in the United States provided that 
the operation is an integral part of the test. This exemption is limited 
to a period not exceeding one year from the date of importation unless a 
request is made by the appropriate importer, and subsequently granted by 
EPA, concerning the engine in accordance with Sec. 94.905 for a 
subsequent one-year period.
    (3) Display exemptions. A person may conditionally import under bond 
a nonconforming engine solely for display purposes, subject to both of 
the following requirements:
    (i) A display engine may be imported by any person for purposes 
related to a business or the public interest. Such purposes do not 
include collections normally inaccessible or unavailable to the public 
on a daily basis, display of an engine at a dealership, private use, or 
other purpose that the Administrator determines is not appropriate for 
display exemptions. A display engine may not be sold or leased in the 
United States and may not be operated in the United States except for 
the operation incident and necessary to the display purpose.
    (ii) A display exemption is granted for 12 months or for the 
duration of the display purpose, whichever is shorter. Extensions of up 
to 12 months each are available upon approval by the Administrator. In 
no circumstances, however, may the total period of exemption exceed 36 
months.
    (c) A nonconforming engine that qualifies for a permanent exemption 
under this paragraph (c) may be admitted into the United States if prior 
written approval is obtained from the Administrator. A written request 
for a permanent exemption from the Administrator shall contain the 
information required in Sec. 94.803. Noncompliance with the provisions 
of this paragraph (c) will be considered unlawful importation and may 
result in the exportation of the engine and/or imposition of civil 
penalties.
    (1) National security exemption. Notwithstanding any other 
requirement of this subpart, an engine may be permanently imported into 
the United States under the national security exemption found in Sec. 
94.908.
    (2) Competition exemption. Notwithstanding any other requirement of 
this subpart, an engine may be permanently imported into the United 
States under the competition exemption found in Sec. 94.906(c).
    (3) Incomplete marine engine exemption. An engine that is intended 
to be modified prior to being placed into service as a marine engine may 
be imported in a nonconforming configuration, subject to the following 
provisions:
    (i) The modified engine must be covered by a valid marine engine 
certificate issued under this part prior to importation and held by a 
post-manufacture marinizer. (Note: Prior to certification, manufacturers 
and post-manufacture marinizers may import uncertified engines for 
testing, as specified in paragraph (b)(2) of this section.)
    (ii) The engine may not be placed into non-marine service prior to 
being installed in a vessel.
    (iii) The importer must obtain written approval from the 
Administrator prior to admission.
    (iv) The engine and engine container must be labeled as specified by 
the Administrator.
    (v) A manufacturer importing an engine under this exemption must 
modify 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 incorporated 
in an imported marine vessel) which is not covered by a certificate of 
conformity other than in accordance with this subpart and the entry 
regulations of the U.S. Customs Service is prohibited. Failure to comply 
with this section is

[[Page 671]]

a violation of section 213(d) and section 203 of the Act.
    (b) Unless otherwise permitted by this subpart, during a period of 
conditional 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 to Sec. 94.804 and 
not otherwise permanently exempted or excluded by the end of the period 
of conditional admission, or within such additional time as the 
Administrator and the U.S. Customs Service may allow, is deemed to be 
unlawfully imported into the United States in violation of section 
213(d) and section 203 of the Act, unless the engine has been delivered 
to the U.S. Customs Service for export or other disposition under 
applicable Customs laws and regulations by the end of the period of 
conditional admission. An engine not so delivered is subject to seizure 
by the U.S. Customs Service.
    (d) An importer who violates section 213(d) and section 203 of the 
Act is subject to a civil penalty under section 205 of the Act and Sec. 
94.1106. In addition to the penalty provided in the Act and Sec. 
94.1106, where applicable, a person or entity who imports an engine 
under the exemption provisions of Sec. 94.804 and, who fails to deliver 
the engine to the U.S. Customs Service by the end of the period of 
conditional admission is liable for liquidated damages in the amount of 
the bond required by applicable Customs laws and regulations.



              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 engines 
from certain provisions of this part. The applicability of the 
exclusions is described in Sec. 94.903, and the applicability of the 
exemption allowances is described in Sec. 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 will 
make written determinations as to whether certain engines are excluded 
from applicability of this part. Any engines that are determined to be 
excluded are not subject to the regulations under this part. Requests to 
determine whether certain engines are excluded should be sent to the 
Designated Officer.
    (b) EPA will maintain a list of models of engines that have been 
determined to be excluded from coverage under this part. This list will 
be available to the public and may be obtained by writing to the address 
in paragraph (a) of this section.
    (c) In addition to the engines excluded in paragraph (a) of this 
section, certain engines are not subject to the requirements and 
prohibitions of this part because they are excluded from the definitions 
of ``marine engine'' in Sec. 94.2.



Sec. 94.904  Exemptions.

    (a) Except as specified otherwise in this subpart, the provisions of 
Sec. Sec. 94.904 through 94.913 exempt certain new engines from the 
standards, other requirements, and prohibitions of this part, except for 
the requirements of this subpart and the requirements of Sec. 94.1104. 
Additional requirements may apply for imported engines; these are 
described in subpart I of this part.
    (b)(1) Any person may request a testing exemption subject to the 
provisions of Sec. 94.905.
    (2) Any engine manufacturer may request a national security 
exemption subject to the provisions of Sec. 94.908.
    (3) Engines manufactured for export purposes are exempt without 
application, 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 the 
provisions of Sec. 94.906(b). This does not apply to imported engines 
(see Sec. 94.804).
    (6) Engines used solely for competition are exempt, subject to the 
provisions of Sec. 94.906(c).

[[Page 672]]

    (c) If you want to take an action with respect to an exempted or 
excluded engine that is prohibited by the exemption or exclusion, such 
as selling it, you need to certify the engine. We will issue a 
certificate of conformity if you send us an application for 
certification showing that you meet all the applicable requirements from 
this part 94 and pay the appropriate fee. Also, in some cases, we may 
allow manufacturers to modify the engine as needed to make it identical 
to engines already covered by a certificate. We would base such an 
approval on our review of any appropriate documentation. These engines 
must have emission control information labels that accurately describe 
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/or other 
requirements and prohibitions of this part new engines that are being 
used solely for the purpose of conducting a test program. Any person 
requesting an exemption for the purpose of conducting a test program 
must demonstrate the following:
    (i) That the proposed test program has a purpose which constitutes 
an appropriate basis for an exemption in accordance this section;
    (ii) That the proposed test program necessitates the granting of an 
exemption;
    (iii) That the proposed test program exhibits reasonableness in 
scope; and
    (iv) That the proposed test program exhibits a degree of oversight 
and control consonant with the purpose of the test program and EPA's 
monitoring requirements.
    (2) Paragraphs (b), (c), (d), and (e) of this section describe what 
constitutes a sufficient demonstration for each of the four elements 
identified in paragraphs (a)(1)(i) through (iv) of this section.
    (b) With respect to the purpose of the proposed test program, an 
appropriate purpose would be research, investigations, studies, 
demonstrations, technology development, or training, but not national 
security. A concise statement 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 a 
practicable manner without performing or causing to be performed one or 
more of the prohibited acts under Sec. 94.1103. In appropriate 
circumstances, time constraints may be a sufficient basis for necessity, 
but the cost of certification alone, in the absence of extraordinary 
circumstances, is not a basis for necessity.
    (d) With respect to reasonableness, a test program must exhibit a 
duration of reasonable length and affect a reasonable number of engines. 
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 incorporate 
procedures consistent with the purpose of the test and be capable of 
affording EPA monitoring capability. As a minimum, required items of 
information 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 involved in 
the testing;
    (5) The intended final disposition of the engines;
    (6) The manner in which the engine identification numbers will be 
identified, 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 exemption to 
cover engines intended for use in test programs planned or anticipated 
over the course of a subsequent two-year period. Unless otherwise 
required by the Director, Engine Programs and Compliance Division, a 
manufacturer requesting such an exemption need only furnish the 
information required by paragraphs (a)(1) and (d)(2) of this section 
along with a description of the recordkeeping and control procedures 
that

[[Page 673]]

will be employed to assure that the engines are used for purposes 
consistent with paragraph (a) of this section.
    (g) For engines being used for the purpose of developing a 
fundamentally new emission control technology related either to an 
alternative fuel or an aftertreatment device, the Administrator may 
exempt the engine from some or all of the applicable standards of this 
part for the full useful life of the engine, subject to the provisions 
of paragraphs (a) through (f) of this section.



Sec. 94.906  Manufacturer-owned exemption, display exemption, and competition 

exemption.

    (a) Manufacturer-owned exemption. Any manufacturer-owned engine, as 
defined by Sec. 94.2, is exempt from Sec. 94.1103, without 
application, if the manufacturer complies with the following terms and 
conditions:
    (1) The manufacturer must establish, maintain, and retain the 
following adequately organized and indexed information on each exempted 
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 to these 
records to EPA Enforcement Officers as outlined in Sec. 94.208.
    (3) The manufacturer must permanently affix a label to each engine 
on exempt status, unless the requirement is waived or an alternate 
procedure is approved by the Director, Engine Programs and Compliance 
Division. 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 without 
destruction or defacement;
    (iii) State in the English language and in block letters and 
numerals of a color that contrasts with the background of the label, the 
following information:
    (A) The label heading ``Emission Control Information'';
    (B) Full corporate name and trademark of manufacturer;
    (C) Engine displacement, engine family identification, and model 
year of engine; or person of office to be contacted for further 
information about the engine;
    (D) The statement ``This engine is exempt from the prohibitions of 
40 CFR 94.1103.''
    (4) No provision of paragraph (a)(3) of this section prevents a 
manufacturer from including any other information it desires on the 
label.
    (5) The engine is not used in revenue-generating service, or sold.
    (b) Display exemption. An uncertified engine that is to be used 
solely for display purposes, and that will only be operated incident and 
necessary to the display purpose, and will not be sold unless an 
applicable certificate of conformity has been obtained for the 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 used solely 
for competition. Engines that are modified after they have been placed 
into service and are used solely for competition are exempt without 
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 commerce if they 
are already certified to the requirements that apply to compression-
ignition engines under 40 CFR parts 85 and 86 or 40 CFR part 89, 92 or 
1039 for the appropriate model year. If you comply with all the 
provisions of this section, we consider the certificate issued under 40 
CFR part 86, 89, 92, or 1039 for each engine to also be a valid 
certificate of conformity under this part 94 for its model year, without 
a separate application for certification under the requirements of this 
part 94.
    (b) Boat-builder provisions. If you are not an engine manufacturer, 
you may install an engine certified for the appropriate model year under 
40 CFR part 86, 89, 92, or 1039 in a marine vessel

[[Page 674]]

as long as you do not make any of the changes described in paragraph 
(d)(3) of this section and you meet the requirements of paragraph (e) of 
this section. If you modify the non-marine engine in any of the ways 
described in paragraph (d)(3) of this section, we will consider you a 
manufacturer of a new marine engine. Such engine modifications prevent 
you from using the provisions of this section.
    (c) Liability. Engines for which you meet the requirements of this 
section are exempt from all the requirements and prohibitions of this 
part, except for those specified in this section. Engines exempted under 
this section must meet all the applicable requirements from 40 CFR parts 
85 and 86 or 40 CFR part 89, 92, or 1039. This paragraph (c) applies to 
engine manufacturers, boat builders who use such an engine, and all 
other persons as if the engine were used in its originally intended 
application. The prohibited acts of Sec. 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 of conformity under this part 94 for its model year. If we 
make a determination that these engines do not conform to the 
regulations during their useful life, we may require you to recall them 
under this part 94 or under 40 CFR part 85, 89, 92, or 1039.
    (d) Specific requirements. If you are an engine manufacturer and 
meet all the following criteria and requirements regarding your new 
marine engine, the engine is eligible for an exemption under this 
section:
    (1) You must produce it by marinizing an engine covered by a valid 
certificate of conformity from one of the following programs:
    (i) Heavy-duty highway engines (40 CFR part 86).
    (ii) Land-based 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 that could 
reasonably be expected to increase its emissions. For example, if you 
make any of the following changes to one of these engines, you do not 
qualify for the engine dressing exemption:
    (i) Change any fuel system parameters from the certified 
configuration, or change, remove, or fail to properly install any other 
component, element of design, or calibration specified in the engine 
manufacturer's application for certification. This includes 
aftertreatment devices and all related components.
    (ii) Replacing an original turbocharger, except that small-volume 
manufacturers of recreational engines may replace an original 
turbocharger with one that matches the performance of the original 
turbocharger.
    (iii) Modify or design the marine engine cooling or aftercooling 
system so that temperatures or heat rejection rates are outside the 
original engine manufacturer's specified ranges.
    (4) You must show that fewer than 50 percent of the engine family's 
total sales in the United States are used in marine applications. This 
includes engines used in any application, without regard to which 
company manufactures the vessel or equipment. Show this as follows:
    (i) If you are the original manufacturer of the engine, base this 
showing on your sales information.
    (ii) In all other cases, you must get the original manufacturer of 
the engine to confirm this based on its sales information.
    (e) If you are an engine manufacturer or boat builder using this 
exemption, you must do all of the following:
    (1) Make sure the original engine label will remain clearly visible 
after installation in the vessel.
    (2) Add a permanent supplemental label to the engine in a position 
where it will remain clearly visible after installation in the vessel. 
In your engine label, do the following:
    (i) Include the heading: ``Marine Engine Emission Control 
Information''.
    (ii) Include your full corporate name and trademark.
    (iii) State: ``This engine was marinized without affecting its 
emission controls.''
    (iv) State the date you finished marinizing the engine (month and 
year).

[[Page 675]]

    (3) Send a signed letter to the Designated Officer by the end of 
each calendar year (or less often if we tell you) with all the following 
information:
    (i) Identify your full corporate name, address, and telephone 
number.
    (ii) List the engine models for which you expect to use this 
exemption in the coming year and describe your basis for meeting the 
sales restrictions of paragraph (d)(4) of this section.
    (iii) State: ``We prepare each listed engine model for marine 
application without making any changes that could increase its certified 
emission levels, as described in 40 CFR 94.907.''
    (f) Engine inventories. In general you may use up your inventory of 
engines that are not certified to new marine emission standards if they 
were originally manufactured before the date of the new standards. 
However, stockpiling these engines is a violation of Sec. 
94.1103(a)(1)(i)(A).
    (g) Failure to comply. If your engines do not meet the criteria 
listed in paragraph (d) of this section, they will be subject to the 
standards, requirements, and prohibitions of this part 94 and the 
certificate issued under 40 CFR part 86, 89, 92, or 1039 will not be 
deemed to also be a certificate issued under this part 94. Introducing 
these engines into commerce without a valid exemption or certificate of 
conformity under this part violates the prohibitions in 40 CFR 
94.1103(a)(1).
    (h) Data submission. (1) If you are the original manufacturer and 
marinizer of an exempted engine, you must send us emission test data on 
the appropriate marine duty cycles. You can include the data in your 
application for certification or in the letter described in paragraph 
(e)(3) of this section.
    (2) If you are the original manufacturer of an exempted engine that 
is marinized by a post-manufacture marinizer, you may be required to 
send us emission test data on the appropriate marine duty cycles. If 
such data are requested you will be allowed a reasonable amount of time 
to collect the data.
    (i) Participation in averaging, banking and trading. Engines adapted 
for marine use under this section may not generate or use emission 
credits under this part 94. These engines may generate credits under the 
ABT provisions in 40 CFR part 86, 89, 92, or 1039, as applicable. These 
engines must use emission credits under 40 CFR part 86, 89, 92, or 1039 
as applicable if they are certified to an FEL that exceeds an applicable 
standard.
    (j) Operator requirements. The requirements for vessel 
manufacturers, owners, and operators in subpart K of this part apply to 
these engines whether they are certified under this part 94 or another 
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 is 
used in a vessel that exhibits substantial features ordinarily 
associated with military combat such as armor, permanently affixed 
weaponry, specialized electronic warfare systems, unique stealth 
performance requirements, and/or unique combat maneuverability 
requirements and which will be owned and/or used by an agency of the 
federal government with the responsibility for national defense, will be 
exempt from the regulations in this subpart for reasons of national 
security. No request for this exemption is necessary.
    (2) Manufacturers may request a national security exemption for any 
marine engine, otherwise subject to this part, which does not meet the 
conditions described in paragraph (a)(1) of this section. A manufacturer 
requesting a national security exemption must state the purpose for 
which the exemption is required and the request must be endorsed by an 
agency of the federal government charged with responsibility for 
national defense.
    (b) EPA will maintain a list of models of marine engines (and the 
vessels which use them) that have been granted a national security 
exemption under paragraph (a)(2) of this section. This list will be 
available to the public and may be obtained by writing to the Designated 
Officer.
    (c) Manufacturers must add a legible label, written in block letters 
in English, to each engine exempted under this section. The label must 
be

[[Page 676]]

permanently secured to a readily visible part of the engine needed for 
normal operation and not normally requiring replacement, such as the 
engine block. This label must include at least the following items:
    (1) The label heading ``EMISSION CONTROL INFORMATION''.
    (2) Your corporate name and trademark.
    (3) Engine displacement, engine family identification (as 
applicable), and model year of the engine or whom to contact for further 
information.
    (4) The statement ``THIS ENGINE HAS AN EXEMPTION FOR NATIONAL 
SECURITY UNDER 40 CFR 94.908.''.

[64 FR 73331, Dec. 29, 1999, as amended at 69 FR 39213, June 29, 2004]



Sec. 94.909  Export exemptions.

    (a) A new engine intended solely for export, and so labeled or 
tagged on the outside of any container and on the engine, is subject to 
the provisions of Sec. 94.1103, unless the importing country has new 
marine engine emission standards which differ from EPA standards.
    (b) For the purpose of paragraph (a) of this section, a country 
having no standards whatsoever is deemed to be a country having emission 
standards which differ from EPA standards.
    (c) It is a condition of any exemption for the purpose of export 
under paragraph (a) of this section, that such exemption is void ab 
initio with respect to a new engine intended solely for export, where 
such engine is sold, or offered for sale, to an ultimate purchaser or 
otherwise distributed or introduced into commerce in the United States 
for purposes other than export.



Sec. 94.910  Granting of exemptions.

    (a) If upon completion of the review of an exemption request made 
pursuant to Sec. 94.905 or Sec. 94.908, EPA determines it is 
appropriate to grant such an exemption, a memorandum of exemption is to 
be prepared and submitted to the person requesting the exemption. The 
memorandum is to set forth the basis for the exemption, its scope, and 
such terms and conditions as are deemed necessary. Such terms and 
conditions generally include, but are not limited to, agreements by the 
applicant to conduct the exempt activity in the manner described to EPA, 
create and maintain adequate records accessible to EPA at reasonable 
times, employ labels for the exempt engines setting forth the nature of 
the exemption, take appropriate measures to assure that the terms of the 
exemption are met, and advise EPA of the termination of the activity and 
the ultimate disposition of the engines.
    (b) Any exemption granted pursuant to paragraph (a) of this section 
is deemed to cover any subject engine only to the extent that the 
specified terms and conditions are complied with. A breach of any term 
or condition causes the exemption to be void ab initio with respect to 
any engine. Consequently, the causing or the performing of an act 
prohibited under Sec. 94.1103(a)(1) or (a)(3), other than in strict 
conformity with all terms and conditions of this exemption, renders the 
person to whom the exemption is granted, and any 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 concerning exemptions 
and/or the exemption request review procedure should be addressed to the 
Designated Officer.



Sec. 94.912  Optional certification to land-based standards for auxiliary 

marine engines.

    This section applies to auxiliary marine engines that are identical 
to certified land-based engines. See Sec. 94.907 for provisions that 
apply to propulsion marine engines or auxiliary marine 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 commerce if they 
are already certified to the requirements that apply to compression-
ignition engines under 40 CFR part 89 or 1039 for the appropriate model 
year. If you comply with all the provisions of this section, we consider 
the certificate issued under 40 CFR part 86 or 1039 for

[[Page 677]]

each engine to also be a valid certificate of conformity under this part 
94 for its model year, without a separate application for certification 
under the requirements of this part 94.
    (b) Boat builder provisions. If you are not an engine manufacturer, 
you may install an engine certified for land-based applications in a 
marine vessel as long as you meet all the qualifying criteria and 
requirements specified in paragraphs (d) and (e) of this section. If you 
modify the non-marine engine, we will consider you a manufacturer of a 
new marine engine. Such engine modifications prevent you from using the 
provisions of this section.
    (c) Liability. Engines for which you meet the requirements of this 
section are exempt from all the requirements and prohibitions of this 
part, except for those specified in this section. Engines exempted under 
this section must meet all the applicable requirements from 40 CFR part 
89 or 1039. This paragraph (c) applies to engine manufacturers, boat 
builders who use such an engine, and all other persons as if the engine 
were used in its originally intended application. The prohibited acts of 
Sec. 94.1103(a)(1) apply to these new engines and vessels; however, we 
consider the certificate issued under 40 CFR part 89 or 1039 for each 
engine to also be a valid certificate of conformity under this part 94 
for its model year. If we make a determination that these engines do not 
conform to the regulations during their useful life, we may require you 
to recall them under this part 94 or under 40 CFR part 89 or 1068.
    (d) Qualifying criteria. If you are an engine manufacturer and meet 
all the following criteria and requirements regarding your new marine 
engine, the engine is eligible for an exemption under this section:
    (1) The marine engine must be identical in all material respects to 
a land-based engine covered by a valid certificate of conformity for the 
appropriate model year showing that it meets emission standards for 
engines of that power rating under 40 CFR part 89 or 1039.
    (2) The engines may not be used as propulsion marine engines.
    (3) You must show that the number of auxiliary marine engines from 
the engine family must be smaller than the number of land-based engines 
from the engine family sold in the United States, as follows:
    (i) If you are the original manufacturer of the engine, base this 
showing on your sales information.
    (ii) In all other cases, you must get the original manufacturer of 
the engine to confirm this based on its sales information.
    (e) Specific requirements. If you are an engine manufacturer or boat 
builder using this exemption, you must do all of the following:
    (1) Make sure the original engine label will remain clearly visible 
after installation in the vessel. This label or a supplemental label 
must identify that the original certification is valid for marine 
auxiliary applications.
    (2) Send a signed letter to the Designated Officer by the end of 
each calendar year (or less often if we tell you) with all the following 
information:
    (i) Identify your full corporate name, address, and telephone 
number.
    (ii) List the engine models you expect to produce under this 
exemption in the coming year.
    (iii) State: ``We produce each listed engine model for marine 
application without making any changes that could increase its certified 
emission levels, as described in 40 CFR 94.907.''
    (3) If you are the certificate holder, you must describe in your 
application for certification how you plan to produce engines for both 
land-based and auxiliary marine applications, including projected sales 
of auxiliary marine engines to the extent this can be determined. If the 
projected marine sales are substantial, we may ask for the year-end 
report of production volumes to include actual auxiliary marine engine 
sales.
    (f) Failure to comply. If your engines do not meet the criteria 
listed in paragraph (d) of this section, they will be subject to the 
standards, requirements, and prohibitions of this part 94 and the 
certificate issued under 40 CFR part 89 or 1039 will not be deemed to 
also be a certificate issued under this part 94. Introducing these 
engines into commerce

[[Page 678]]

without a valid exemption or certificate of conformity under this part 
violates the prohibitions in 40 CFR 94.1103(a)(1).
    (g) Participation in averaging, banking and trading. Engines using 
this exemption may not generate or use emission credits under this part 
94. These engines may generate credits under the ABT provisions in 40 
CFR part 89 or 1039, as applicable. These engines must use emission 
credits under 40 CFR part 89 or 1039 as applicable if they are certified 
to an FEL that exceeds an applicable standard.
    (h) Operator requirements. The requirements for vessel 
manufacturers, owners, and operators in subpart K of this part apply to 
these engines whether they are certified under this part 94 or another 
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 to 
complete production of your engines at different facilities, as long as 
you maintain control of the engines until they are in their certified 
configuration. We may require you to take specific steps to ensure that 
such engines are in their certified configuration before reaching the 
ultimate purchaser. You may request an exemption under this section in 
your application for certification, or in a separate submission 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, the 
prohibitions in Sec. 94.1103(a)(1) do not apply to a new engine that is 
subject to Tier 2 standards according to the following provisions:
    (1) The engine must be intended for installation in a lifeboat or a 
rescue boat as specified in 40 CFR 1042.625(a)(1)(i) or (ii).
    (2) This exemption is available from the initial effective date for 
the Tier 2 standards until the engine model (or an engine of comparable 
size, weight, and performance) has been certified as complying with the 
Tier 2 standards and Coast Guard requirements. For example, this 
exemption would apply for new engine models that have not yet been 
certified to the Tier 2 standards.
    (3) The engine must meet the Tier 1 emission standards specified in 
Sec. 94.8.
    (b) If you introduce an engine into U.S. commerce under this 
section, you must meet the labeling requirements in Sec. 94.212, but 
add the following statement instead of the compliance statement in Sec. 
94.212(b)(6):

THIS ENGINE DOES NOT COMPLY WITH CURRENT U.S. EPA EMISSION STANDARDS 
UNDER 40 CFR 94.914 AND IS FOR USE SOLELY IN LIFEBOATS OR RESCUE BOATS 
(COAST GUARD APPROVAL SERIES 160.135 OR 160.156). INSTALLATION OR USE OF 
THIS ENGINE IN ANY OTHER APPLICATION MAY BE A VIOLATION OF FEDERAL LAW 
SUBJECT TO CIVIL PENALTY.

    (c) Introducing into commerce a vessel containing an engine exempted 
under this section violates the prohibitions in Sec. 94.1103(a)(1) 
where the vessel is not a lifeboat or rescue boat, unless it is exempt 
under a different provision. Similarly, using such an engine or vessel 
as something other than a lifeboat or rescue boat as specified in 
paragraph (a) of this section violates the prohibitions in Sec. 
94.1103(a)(1), unless it is exempt under a different provision.

[73 FR 37197, June 30, 2008]



 Subpart K_Requirements Applicable to Vessel Manufacturers, Owners, and 
                                Operators

    Source: 68 FR 9787, Feb. 28, 2003, unless otherwise noted.



Sec. 94.1001  Applicability.

    The requirements of this subpart are applicable to manufacturers, 
owners, and operators of marine vessels that contain Category 3 engines 
subject to the provisions of subpart A of this part, except as otherwise 
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]

[[Page 679]]

    (c) Manufacturers, owners and operators must allow emission tests 
and inspections to be conducted and must provide reasonable assistance 
to perform such tests or inspections.



Sec. 94.1004  Maintenance, repair, adjustment, and recordkeeping.

    (a) Unless otherwise approved by the Administrator, all owners and 
operators of Category 3 engines subject to the provisions of this part 
shall ensure that all emission-related maintenance is performed, as 
specified in the maintenance instructions provided by the certifying 
manufacturer in compliance with Sec. 94.211.
    (b) Unless otherwise approved by the Administrator, all maintenance, 
repair, adjustment, and alteration of Category 3 engines subject to the 
provisions of this part performed by any owner, operator or other 
maintenance provider that is not covered by paragraph (a) of this 
section shall be performed, using good engineering judgment, in such a 
manner that the engine continues (after the maintenance, repair, 
adjustment or alteration) to meet the emission standards it was 
certified as meeting prior to the need for service. Adjustments are 
limited to the range specified by the engine manufacturer in the 
approved application for certification.
    (c) A Category 3 engine may not be adjusted or altered contrary to 
the requirements of Sec. 94.11 or paragraph (b) of this section, except 
as allowed by Sec. 94.1103(b)(2). If such an adjustment or alteration 
occurs, the engine must be returned to a configuration allowed by this 
part within two hours of operation. Each two-hour period during which 
there is noncompliance is a separate violation. The following provisions 
apply to adjustments or alterations made under Sec. 94.1103(b)(2):
    (1) In the case of an engine that is adjusted or altered under Sec. 
94.1103(b)(2)(i), there is no violation under this paragraph (c) for 
engine operation before completion of the repair or replacement 
procedure. The provisions of paragraph (c) introductory text apply to 
all operation following completion of the repair or replacement 
procedure.
    (2) In the case of an engine that is adjusted or altered under Sec. 
94.1103(b)(2)(ii), there is no violation under this paragraph (c) if the 
engine operates for less than two hours following the conclusion of the 
emergency that prompted the adjustment or alteration before the 
emission-control system is restored to proper functioning. The 
provisions of paragraph (c) introductory text apply to all operation 
that occurs after this two-hour period.
    (d) The owner and operator of the engine shall maintain on board the 
vessel records of all maintenance, repair, and adjustment that could 
reasonably affect the emission performance of any Category 3 engine 
subject to the provision of this part. Owners and operators shall also 
maintain, on board the vessel, records regarding certification, 
parameter adjustment, and fuels used. For engines that are automatically 
adjusted electronically, all adjustments must be logged automatically. 
Owners and operators shall make these records available to EPA upon 
request. These records must include the following:
    (1) [Reserved]
    (2) The Technical File, Record Book of Engine Parameters, and bunker 
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 descriptions must include at 
least the date, time, and nature of the maintenance, repair, adjustment, 
or alteration and the position of the vessel when the maintenance, 
repair, adjustment, or alteration was made.
    (4) Emission-related maintenance instructions provided by the 
manufacturer.
    (e) For each marine vessel containing a Category 3 engine, the owner 
shall annually review the vessel's records and submit to EPA a signed 
statement certifying compliance during the preceding year with the 
requirements of this part that are applicable to owners and operators of 
such vessels. Alternately, if review of the vessel's records indicates 
that there has been one or more violations of the requirements of this 
part, the owner shall submit to EPA a signed statement specifying the 
noncompliance, including the nature of the noncompliance, the time of 
the

[[Page 680]]

noncompliance, and any efforts made to remedy the noncompliance. The 
statement of compliance (or noncompliance) required by this paragraph 
shall be signed by the executive with responsibility for marine 
activities of the owner. If the vessel is operated by a different 
business entity than the vessel owner, the reporting requirements of 
this paragraph (e) apply to both the owner and the operator. Compliance 
with these review and certification requirements by either the vessel 
owner or the vessel operator with respect to a compliance statement will 
be considered compliance with these requirements by both of these 
parties for that compliance statement. The executive(s) may authorize a 
captain or other primary operator to conduct this review and submit the 
certification, provided that the certification statement is accompanied 
by written authorization for that individual to submit such statements. 
The Administrator may waive the requirements of this paragraph when 
equivalent assurance of compliance is otherwise available.

[64 FR 73331, Dec. 29, 1999, as amended at 70 FR 40461, July 13, 2005]



      Subpart L_General Enforcement Provisions and Prohibited Acts



Sec. 94.1101  Applicability.

    The requirements of this subpart are applicable to all persons with 
respect to engines subject to the provisions of Subpart A of this part.



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 delivery for 
introduction into commerce, or the distribution in commerce of any new 
engine that is subject to the standards of this part, unless such engine 
is covered by a certificate of conformity issued (and in effect) under 
regulations found in this part.
    (B) The manufacture of an engine for the purpose of an act listed in 
paragraph (a)(1)(i)(A) of this section unless such engine is covered by 
a certificate of conformity issued (and in effect) under regulations 
found in this part prior to its introduction into commerce.
    (ii) In the case of any person, except as provided in Subpart I of 
this part, the importation into the United States of any engine 
manufactured on or after the implementation date of the applicable 
emission limits for the relevant 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 or copying 
of records or to fail to make reports or provide information required 
under this part.
    (ii) For a person to fail or refuse to permit entry, testing, or 
inspection authorized under this part.
    (iii) For a person to fail or refuse to perform tests, or to have 
tests performed as required by this part.
    (iv) For a person to fail to establish or maintain records as 
required under this part.
    (v) For an owner or operator of a vessel using a Category 3 engine 
to refuse to allow the in-use testing described in Sec. 94.1003 to be 
performed.
    (vi) For a manufacturer, owner or operator of a Category 3 engine to 
fail to provide maintenance instructions as required by Sec. 94.211.
    (3)(i) For a person to remove or render inoperative a device or 
element of design installed on or in an engine in compliance with 
regulations under this part, or to set any adjustable parameter to a 
setting outside of the range specified by the manufacturer, as approved 
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, or install, 
a part or component intended for use with, or as part of, an engine, 
where a principal effect of the part or component is to bypass, defeat, 
or render inoperative a device or element of design installed on

[[Page 681]]

or in an engine in compliance with regulations issued under this part, 
and where the person knows or should know that the part or component is 
being offered for sale or installed for this use or put to such use.
    (iii) for a person to deviate from the provisions of Sec. 94.11 
when rebuilding an engine (or rebuilding a portion of an engine or 
engine system).
    (4) For a manufacturer of a new engine subject to standards 
prescribed under this part:
    (i) To sell, offer for sale, or introduce or deliver for 
introduction into commerce, a new engine unless the manufacturer has 
complied with the requirements of Sec. 94.1107.
    (ii) To sell, offer for sale, or introduce or deliver for 
introduction into commerce, a new engine unless all required labels and 
tags are affixed to the engine in accordance with Sec. 94.212.
    (iii) To fail or refuse to comply with the requirements of Sec. 
94.1108.
    (iv) Except as provided in Sec. 94.211, to provide directly or 
indirectly in any communication to the ultimate purchaser or a 
subsequent purchaser that the coverage of a warranty under the Act is 
conditioned upon use of a part, component, or system manufactured by the 
manufacturer or a person acting for the manufacturer or under its 
control, or conditioned upon service performed by such persons.
    (v) To fail or refuse to comply with the terms and conditions of the 
warranty under Sec. 94.1107.
    (5) For a manufacturer of marine vessels to distribute in commerce, 
sell, offer for sale, or deliver for introduction into commerce a new 
vessel containing an engine not covered by a certificate of conformity 
applicable for an engine model year the same as or later than the 
calendar year in which the manufacture of the new vessel is initiated. 
This prohibition covers improper installation in a manner such that the 
installed engine would not be covered by the engine manufacturer's 
certificate. Improper installation would include, but is not limited to, 
failure to follow the engine manufacturer's instructions related to 
engine cooling, exhaust aftertreatment, emission sampling ports, or any 
other emission-related component, parameter, or setting. In general, you 
may use up your normal inventory of engines not certified to new 
emission standards if they were built before the date of the new 
standards. However, we consider stockpiling of these engines to be a 
violation of paragraph (a)(1)(i)(A) of this section. (Note: For the 
purpose of this paragraph (a)(5), the manufacture of a vessel is 
initiated when the keel is laid, or the vessel is at a similar stage of 
construction.)
    (6) For any person to install a recreational marine engine in a 
vessel that is manufactured on or after the implementation date of the 
applicable standards and that is not a recreational vessel.
    (7)(i) For an owner or operator of a vessel using a Category 3 
engine to fail or refuse to ensure that an engine is properly adjusted 
as set forth in Sec. 94.1004.
    (ii) For an owner or operator of a vessel using a Category 3 to fail 
to maintain or repair an engine as set forth in Sec. 94.1004.
    (iii) For an owner or operator of a vessel using a Category 3 engine 
to operate an engine in violation of the requirements of Sec. 
94.1004(c).
    (iv) For an owner or operator of a vessel using a Category 3 engine 
to fail to comply with any applicable provision in this part for 
recordkeeping, reporting, or submission of information to EPA, including 
the annual certification requirements of Sec. 94.1004.
    (8) For an owner or operator of a vessel installing a replacement 
engine under the provisions of paragraph (b)(4) of this section to make 
modifications to significantly increase the value of the vessel within 
six months after installing the replacement engine.
    (b) For the purposes of enforcement of this part, the following 
apply:
    (1) Nothing in paragraph (a)(3) of this section is to be construed 
to require the use of any manufacturer's parts in maintaining or 
repairing an engine.
    (2)(i) Actions for the purpose of repair or replacement of a device 
or element of design or any other item are not considered prohibited 
acts under paragraph (a)(3)(i) of this section if the action is a 
necessary and temporary

[[Page 682]]

procedure, the device or element is replaced upon completion of the 
procedure, and the action results in the proper functioning of the 
device or element of design.
    (ii) Actions for emergency purposes are not considered prohibited 
acts under paragraph (a)(3)(i) of this section if the action is a 
necessary and temporary procedure and the device or element is replaced 
such that the proper functioning of the device or element of design is 
restored as soon as possible.
    (3) Where the Administrator determines that no engine that is 
certified to the requirements of this part is produced by any 
manufacturer with the appropriate physical or performance 
characteristics to repower a vessel, the Administrator may allow an 
engine manufacturer to introduce into commerce a replacement engine 
without complying with all of the otherwise applicable requirements of 
this part. Such engine shall not be subject to the prohibitions of 
paragraph (a)(1) of this section, subject to all the following 
provisions:
    (i) The engine requiring replacement is not certified or is 
certified to emission standards that are less stringent than those in 
effect when the replacement engine is built.
    (ii) The engine manufacturer or its agent takes ownership and 
possession of the engine being replaced or confirms that the engine has 
been destroyed.
    (iii) If the engine being replaced was not certified to any emission 
standards under this part, the replacement engine must have a permanent 
label with your corporate name and trademark and the following language, 
or similar alternate language approved by the Administrator:

    THIS ENGINE DOES NOT COMPLY WITH U.S. EPA MARINE EMISSION 
REQUIREMENTS. SELLING OR INSTALLING THIS ENGINE FOR ANY PURPOSE OTHER 
THAN TO REPLACE A MARINE ENGINE BUILT BEFORE JANUARY 1, [Insert 
appropriate year reflecting when the earliest tier of standards began to 
apply to engines of that size and type] MAY BE A VIOLATION OF FEDERAL 
LAW SUBJECT TO CIVIL PENALTY.

    (iv) If the engine being replaced was certified to emission 
standards less stringent than those in effect when you produce the 
replacement engine, the replacement engine must have a permanent label 
with your corporate name and trademark and the following language, or 
similar alternate language approved by the Administrator:

    THIS ENGINE COMPLIES WITH U.S. EPA MARINE EMISSION REQUIREMENTS FOR 
[Insert appropriate year reflecting when the Tier 1 or Tier 2 standards 
for the replaced engine began to apply] ENGINES UNDER 40 CFR 
94.1103(b)(3). SELLING OR INSTALLING THIS ENGINE FOR ANY PURPOSE OTHER 
THAN TO REPLACE A MARINE ENGINE BUILT BEFORE JANUARY 1, [Insert 
appropriate year reflecting when the next tier of emission standards 
began to apply] MAY BE A VIOLATION OF FEDERAL LAW SUBJECT TO CIVIL 
PENALTY.

    (v) Where the replacement engine is intended to replace an engine 
that is certified to emission standards that are less stringent than 
those in effect when the replacement engine is built, the replacement 
engine shall be identical in all material respects to a certified 
configuration of the same or later model year as the engine being 
replaced.
    (vi) Engines sold pursuant to the provisions of this paragraph will 
neither generate nor use emission credits and will not be part of any 
accounting under the averaging, banking and trading program.
    (vii) In cases where an engine is to be imported for replacement 
purposes under the provisions of this paragraph (b)(3) of this section, 
the term ``engine manufacturer'' shall not apply to an individual or 
other entity that does not possess a current Certificate of Conformity 
issued by EPA under this part; and
    (viii) The provisions of this section may not be used to circumvent 
emission standards that apply to new engines under this part.
    (4) An engine manufacturer may make the determination related to 
replacement engines described in paragraph (b)(3) of this section 
instead of the Administrator, if the new engine is needed to replace an 
engine that has experienced catastrophic failure. The engine 
manufacturer must consider whether certified engines are available from 
its own product lineup or that of the manufacturer of the engine being

[[Page 683]]

replaced (if different). The engine manufacturer must keep records 
explaining why a certified engine was not available and make these 
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) Every manufacturer of 
new engines and other persons subject to the requirements of this part 
must establish and maintain records, perform tests, make reports and 
provide information the Administrator may reasonably require to 
determine whether the manufacturer or other person has acted or is 
acting in compliance with this part or to otherwise carry out the 
provisions of this part, and must, upon request of an officer or 
employee duly designated by the Administrator, permit the officer or 
employee at reasonable times to have access to and copy such records. 
The manufacturer shall comply in all respects with the requirements of 
subpart E of this part.
    (ii) Every manufacturer or owner of engines exempted from the 
standards or requirements of this part must establish and maintain 
records, perform tests, make reports and provide information the 
Administrator may reasonably require regarding the emissions of such 
engines.
    (2) For purposes of enforcement of this part, an officer or employee 
duly designated by the Administrator, upon presenting appropriate 
credentials, is authorized:
    (i) To enter, at reasonable times, any establishment of the 
manufacturer, or of any person whom the manufacturer engaged to perform 
any activity required under paragraph (a)(1) of this section, for the 
purposes of inspecting or observing any activity conducted pursuant to 
paragraph (a)(1) of this section; and
    (ii) To inspect records, files, papers, processes, controls, and 
facilities used in performing an activity required by paragraph (a)(1) 
of this section, by the manufacturer or by a person whom the 
manufacturer engaged to perform the activity.
    (b) Exemption provision. The Administrator may exempt a new engine 
from Sec. 94.1103 upon such terms and conditions as the Administrator 
may find necessary for the purpose of export, research, investigations, 
studies, demonstrations, or training, or for reasons of national 
security, or for other purposes allowed by subpart J of this part.
    (c) Importation provision. (1) A new engine, offered for importation 
or imported by a person in violation of Sec. 94.1103 is to be refused 
admission into the United States, but the Secretary of the Treasury and 
the Administrator may, by joint regulation, provide for deferring a 
final determination as to admission and authorizing the delivery of such 
an engine offered for import to the owner or consignee thereof upon such 
terms and conditions (including the furnishing of a bond) as may appear 
to them appropriate to insure that the engine will be brought into 
conformity with the standards, requirements, and limitations applicable 
to it under this part.
    (2) If an engine is finally refused admission under this paragraph 
(c), the Secretary of the Treasury shall cause disposition thereof in 
accordance with the customs laws unless it is exported, under 
regulations prescribed by the Secretary, within 90 days of the date of 
notice of the refusal or additional time as may be permitted pursuant to 
the Treasury regulations.
    (3) Disposition in accordance with the customs laws may not be made 
in such manner as may result, directly or indirectly, in the sale, to 
the ultimate consumer, of a new engine that fails to comply with 
applicable standards of the Administrator under this part.
    (d) Export provision. A new engine intended solely for export, and 
so labeled or tagged on the outside of the container if used and on the 
engine, shall be subject to the provisions of Sec. 94.1103, except that 
if the country that is to receive the engine has emission standards that 
differ from the standards prescribed under subpart A of this part, then 
the engine must comply with the standards of the country that is to 
receive the engine.
    (e) Recordkeeping. Except where specified otherwise, records 
required by this part must be kept for eight (8) years.

[[Page 684]]



Sec. 94.1105  Injunction proceedings for prohibited acts.

    (a) The district courts of the United States have jurisdiction to 
restrain 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 in any 
district may run into any other district.



Sec. 94.1106  Penalties.

    This section specifies actions that are prohibited and the maximum 
civil penalties that we can assess for each violation. The maximum 
penalty values listed in paragraphs (a) and (c) of this section are 
shown for calendar year 2004. As described in paragraph (d) of this 
section, maximum penalty limits for later years are set forth in 40 CFR 
part 19.
    (a) Violations. A violation of the requirements of this subpart is a 
violation of the applicable provisions of the Act, including sections 
213(d) and 203, and is subject to the penalty provisions 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 violates Sec. 
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 each violation.
    (2) A person other than a manufacturer or dealer who violates Sec. 
94.1103(a)(3)(i) or (iii) or Sec. 94.1103(a)(7)(i), (ii), or (iii) or 
any person who violates Sec. 94.1103(a)(3)(ii) is subject to a civil 
penalty of not more 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 separate offense 
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 to Sec. 
94.1103(a)(7)(iii) constitutes a separate offense. A violation of Sec. 
94.1103(a)(7)(iii) lasting less than two hours constitutes a single 
offense.
    (b) Civil actions. The Administrator may commence a civil action to 
assess and recover any civil penalty under paragraph (a) of this 
section.
    (1) An action under this paragraph (b) may be brought in the 
district court of the United States for the district in which the 
defendant resides or has the Administrator's principal place of 
business, and the court has jurisdiction to assess a civil penalty.
    (2) In determining the amount of a civil penalty to be assessed 
under this paragraph (b), the court is to take into account the gravity 
of the violation, the economic benefit or savings (if any) resulting 
from the violation, the size of the violator's business, the violator's 
history of compliance with Title II of the Act, action taken to remedy 
the violation, the effect of the penalty on the violator's ability to 
continue in business, and such other matters as justice may require.
    (3) In any such action, subpoenas for witnesses who are required to 
attend a district court in any district may run into any other district.
    (c) Administrative assessment of certain penalties. (1) 
Administrative penalty authority. Subject to 42 U.S.C. 7524(c), in lieu 
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 sought 
against each violator in a penalty assessment proceeding shall not 
exceed $270,000, unless the Administrator and the Attorney General 
jointly determine that a matter involving a larger penalty amount is 
appropriate for administrative penalty assessment. Any such 
determination by the Administrator and the Attorney General is not 
subject to judicial review. Assessment of a civil penalty shall be by an 
order made on the record after opportunity for a hearing held in 
accordance with the procedures found at part 22 of this chapter. The 
Administrator 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 any civil 
penalty

[[Page 685]]

assessed under this paragraph (c), the Administrator shall take into 
account the gravity of the violation, the economic benefit or savings 
(if any) resulting from the violation, the size of the violator's 
business, the violator's history of compliance with Title II of the Act, 
action taken to remedy the violation, the effect of the penalty on the 
violator's ability to continue in business, and such other matters as 
justice may require.
    (3) Effect of administrator's action. (i) Action by the 
Administrator under this paragraph (c) does not affect or limit the 
Administrator's authority to enforce any provisions of the Act; except 
that any violation with respect to which the Administrator has commenced 
and is diligently prosecuting an action under this paragraph (c), or for 
which the Administrator has issued a final order not subject to further 
judicial review and for which the violator has paid a penalty assessment 
under this paragraph shall not be the subject of a civil penalty action 
under paragraph (b) of this section.
    (ii) No action by the Administrator under this paragraph (c) shall 
affect 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 petition for 
judicial review is filed under paragraph (c)(5) of this section.
    (5) Judicial review. A person against whom a civil penalty is 
assessed in accordance with this paragraph (c) may seek review of the 
assessment in the United States District Court for the District of 
Columbia or for the district in which the violation is alleged to have 
occurred, in which such person resides, or where the person's principal 
place of business is located, within the 30-day period beginning on the 
date a civil penalty order is issued. The person shall simultaneously 
send a copy of the filing by certified mail to the Administrator and the 
Attorney General. The Administrator shall file in the court within 30 
days a certified copy, or certified index, as appropriate, of the record 
on which the order was issued. The court is not to set aside or remand 
any order issued in accordance with the requirements of this paragraph 
(c) unless substantial evidence does not exist in the record, taken as a 
whole, to support the finding of a violation or unless the 
Administrator's assessment of the penalty constitutes an abuse of 
discretion, and the court is not to impose additional civil penalties 
unless the Administrator's assessment of the penalty constitutes an 
abuse of discretion. In any proceedings, the United States may seek to 
recover civil penalties assessed under this section.
    (6) Collection. (i) If any person fails to pay an assessment of a 
civil penalty imposed by the Administrator as provided in this part 
after the order making the assessment has become final or after a court 
in an action brought under paragraph (c)(5) of this section has entered 
a final judgment in favor of the Administrator, the Administrator shall 
request that the Attorney General bring a civil action in an appropriate 
district court to recover the amount assessed (plus interest at rates 
established pursuant to section 6621(a)(2) of the Internal Revenue Code 
of 1986 (26 U.S.C. 6621(a)(2)) from the date of the final order or the 
date of final judgment, as the case may be). In such an action, the 
validity, amount, and appropriateness of the penalty is not subject to 
review.
    (ii) A person who fails to pay on a timely basis the amount of an 
assessment of a civil penalty as described in paragraph (c)(6)(i) of 
this section shall be required to pay, in addition to that amount and 
interest, the United States' enforcement expenses, including attorney's 
fees and costs for collection proceedings, and a quarterly nonpayment 
penalty for each quarter during which the failure to pay persists. The 
nonpayment penalty is an amount equal to ten percent of the aggregate 
amount of that person's penalties and nonpayment penalties which are 
unpaid as of the beginning of such quarter.
    (d) The maximum penalty values listed in paragraphs (a) and (c) of 
this section are shown for calendar year 2004. Maximum penalty limits 
for later years may be adjusted based on the Consumer Price Index. The 
specific regulatory provisions for changing the maximum penalties, 
published in 40 CFR part 19, reference the applicable

[[Page 686]]

U.S. Code citation 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 ultimate 
purchaser and each subsequent purchaser or owner that the engine is 
designed, built, and equipped so as to conform at the time of sale with 
applicable regulations under section 213 of the Act, and is free from 
defects in materials and workmanship which cause such engine to fail 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 engine 
warranted under this part is responsible for the proper maintenance of 
the engine. Proper maintenance includes replacement and/or service, as 
needed, at the owner's expense at a service establishment or facility of 
the owner's choosing, of all parts, items, or devices which were in 
general use with engines prior to 1999. For diesel engines, this would 
generally include replacement or cleaning of the fuel delivery and 
injection system.



Sec. 94.1108  In-use compliance provisions.

    (a) Effective with respect to engines subject to the requirements of 
this part:
    (1) If the Administrator determines that a substantial number of any 
class or category of engines, although properly maintained and used, do 
not conform to the regulations prescribed under section 213 of the Act 
when in actual use throughout their useful life period (as defined under 
Sec. 94.2), the Administrator shall immediately notify the manufacturer 
of such nonconformity and require the manufacturer to submit a plan for 
remedying the nonconformity of the engines with respect to which such 
notification is given.
    (i) The manufacturer's plan shall provide that the nonconformity of 
any such engines which are properly used and maintained will be remedied 
at the expense of the manufacturer.
    (ii) If the manufacturer disagrees with such determination of 
nonconformity and so advises the Administrator, the Administrator shall 
afford the manufacturer and other interested persons an opportunity to 
present their views and evidence in support thereof at a public hearing. 
Unless, as a result of such hearing, the Administrator withdraws such 
determination of nonconformity, the Administrator shall, within 60 days 
after the completion of such hearing, order the manufacturer to provide 
prompt notification of such nonconformity in accordance with paragraph 
(a)(2) of this section.
    (2) Any notification required to be given by the manufacturer under 
paragraph (a)(1) of this section with respect to any class or category 
of engines shall be given to ultimate purchasers, subsequent purchasers 
(if known), and dealers (as applicable) in such manner and containing 
such information as required in Subparts E and H of this part.
    (3)(i) The certifying manufacturer shall furnish with each new 
engine written instructions for the proper maintenance and use of the 
engine by the ultimate purchaser as required under Sec. 94.211.
    (ii) The instruction under paragraph (a)(3)(i) of this section must 
not include any condition on the ultimate purchaser's using, in 
connection with such engine, any component or service (other than a 
component or service provided without charge under the terms of the 
purchase agreement) which is identified by brand, trade, or corporate 
name. Such instructions also must not directly or indirectly distinguish 
between service performed by the franchised dealers of such 
manufacturer, or any other service establishments with which such 
manufacturer has a commercial relationship, and service performed by 
independent engine repair facilities with which such manufacturer has no 
commercial relationship.
    (iii) The prohibition of paragraph (a)(3)(ii) of this section may be 
waived by the Administrator if:
    (A) The manufacturer satisfies the Administrator that the engine 
will function properly only if the component or service so identified is 
used in connection with such engine; and

[[Page 687]]

    (B) The Administrator finds that such a waiver is in the public 
interest.
    (iv) In addition, the manufacturer shall indicate by means of a 
label or tag permanently affixed to the engine that the engine is 
covered by a certificate of conformity issued for the purpose of 
assuring achievement of emission standards prescribed under section 213 
of the Act. This label or tag shall also contain information relating to 
control of emissions as prescribed under Sec. 94.212.
    (b) The manufacturer bears all cost obligation any dealer incurs as 
a result of a requirement imposed by paragraph (a) of this section. The 
transfer of any such cost obligation from a manufacturer to a dealer 
through franchise or other agreement is prohibited.
    (c) If a manufacturer includes in an advertisement a statement 
respecting the cost or value of emission control devices or systems, the 
manufacturer shall set forth in the statement the cost or value 
attributed to these devices or systems by the Secretary of Labor 
(through the Bureau of Labor Statistics). The Secretary of Labor, and 
his or her representatives, has the same access for this purpose to the 
books, documents, papers, and records of a manufacturer as the 
Comptroller General has to those of a recipient of assistance for 
purposes 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 cooling 
system).
    c. Performance (charge air delivery temperature ([deg]F) at rated 
power and one other power level under ambient conditions of 80[deg]F and 
110[deg]F, and 3 minutes and 15 minutes after selecting rated power, and 
3 minutes and 5 minutes after selecting other power level).
    3. Temperature control system calibration.
    4. Maximum allowable inlet air restriction.
III. Fuel System.
    1. General.
    a. Engine idle speed.
    2. 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.

[[Page 688]]


    Source: 59 FR 67638, Dec. 30, 1994, unless otherwise noted.



Sec. 95.1  Definitions.

    (a) As used in this part, all terms not defined in this section 
shall 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 the Environmental 
Protection Agency.



Sec. 95.2  Petition for mandatory license.

    (a) Any party required to comply with sections 111, 112 or 202 of 
the Act (42 U.S.C. 7411, 7412 or 7521) may petition to the Administrator 
for a mandatory patent license pursuant to section 308 of the Act (42 
U.S.C. 7608), under a patent that the petitioner maintains is necessary 
to enable the petitioner to comply with Sections 111, 112 or 202 of the 
Act.
    (b)(1) Each petition shall be signed by the petitioner and shall 
state the petitioner's name and address. If the petitioner is a 
corporation, the petition shall be signed by an authorized officer of 
the corporation, and the petition shall indicate the state of 
incorporation. Where the petitioner elects to be represented by counsel, 
a signed notice to that effect shall be included with the petition at 
the time of filing.
    (2) Each petition shall include a copy of the patent under which a 
mandatory patent license is sought. The petition shall identify all 
current owners of the patent and shall include a copy of all assignment 
documents relevant to the patent that are available from the United 
States Patent and Trademark Office.
    (3) Each petition must identify any person whose interest the 
petitioner believes may be affected by the grant of the license to which 
the petition is directed.
    (4) Each petition must contain a concise statement of all of the 
essential facts upon which it is based. No particular form of statement 
is required. Each petition shall be verified by the petitioner or by the 
person having the best knowledge of such facts. In the case of facts 
stated on information and belief, the source of such information and 
grounds of belief shall be given. The statement of facts shall include 
the following:
    (i) An identification of the provisions of the Act and/or 
regulations thereunder that the petitioner maintains petitioner will be 
able to comply with if the petitioner is granted the patent license that 
is the subject of the petition;
    (ii) An identification of the nature and purpose of the petitioner's 
intended use of the patent license;
    (iii) An explanation of the relationship between the patented 
technology and the activities to which petitioner proposes to apply the 
patented technology, including an estimate of the effect on such 
activities stemming from the grant or denial of the patent license;
    (iv) A summary of facts demonstrating that the patent under which a 
mandatory patent license is sought is being used or is intended for 
public or commercial use;
    (v) An explanation of why a mandatory patent license is necessary 
for the petitioner to comply with the requirements of sections 111, 112 
or 202 of the Act, and why the patented technology is not otherwise 
available;
    (vi) An explanation of why there are no other reasonable 
alternatives for accomplishing compliance with sections 111, 112 or 202 
of the Act;
    (vii) An explanation of why the unavailability of a mandatory patent 
license may result in a substantial lessening of competition or a 
tendency to create a monopoly in any line of commerce in any section of 
the United States;
    (viii) A summary of efforts made by the petitioner to obtain a 
patent license from the owner of the patent, including the terms and 
conditions of any patent license proposed by petitioner to the patent 
owner; and
    (ix) The terms, if any, on which the owner of the patent has 
proposed to grant the petitioner a patent license.
    (5) Each petition shall include a proposed patent license that 
states all of the terms and conditions that the petitioner proposes for 
the patent license.
    (6) Petitions shall be addressed to the Assistant Administrator for 
Air and

[[Page 689]]

Radiation, Mail Code 6101, U.S. Environmental Protection Agency, 
Washington, DC 20460.
    (c) Petitions that do not include all of the information required in 
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, finds 
that the criteria in Sec. 95.3 are not met, or otherwise decides to 
deny the petition, a denial of the petition shall be sent to the 
petitioner, along with an explanation of the reasons for the denial.
    (e) If the Administrator, or the Administrator's designee, finds 
that the criteria in Sec. 95.3 are met and decides to apply to the 
Attorney General for a patent license under section 308 of the Act, 
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 to the 
Attorney General for a mandatory patent license pursuant to section 308 
of the Act (42 U.S.C. 7608) either in response to a petition under Sec. 
95.2 or on the Administrator's or designee's own initiative, only after 
expressly finding that each one of the following mandatory criteria is 
met:
    (a) The application is for a patent license covering no more than 
one patent;
    (b) The party to whom the proposed patent license is to be granted 
has presented the Administrator or designee with evidence that such 
party has made reasonable efforts to obtain a patent license from the 
patent owner with terms similar to the license terms to be proposed in 
the application to the Attorney General;
    (c) The patent under which a patent license is sought in the 
application to the Attorney General is being used or is intended for 
public or commercial use;
    (d) The mandatory patent license is necessary for a party to comply 
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 accomplishing 
compliance with sections 111, 112 or 202 of the Act (42 U.S.C. 7411, 
7412 or 7521); and
    (f) The unavailability of a mandatory patent license may result in a 
substantial lessening of competition or a tendency to create a monopoly 
in any line of commerce in any section of the United States.



Sec. 95.4  Limitations on mandatory licenses

    (a) If the Administrator, or the Administrator's designee, decides 
to apply to the Attorney General for a mandatory patent license in 
accordance with Sec. 95.3, the application shall include a proposed 
patent license with the following limitations:
    (1) The scope and duration of the patent license shall be limited to 
that necessary to permit the proposed licensee to comply with the 
requirements the Act;
    (2) The patent license shall be nonexclusive;
    (3) The patent license shall be non-assignable, except with that 
part of the enterprise or goodwill that enjoys the license;
    (4) The patent license shall be for use of the licensed technology 
in the United States only;
    (5) The patent license shall extend only to those uses necessary to 
enable the licensee to comply with sections 111, 112 or 202 of the Act 
(42 U.S.C. 7411, 7412 or 7521);
    (6) The patent license shall provide for termination, subject to 
adequate protections of the legitimate interests of the licensed party, 
when the circumstances that made the compulsory patent license necessary 
cease to exist and are unlikely to recur; and
    (7) The patent license shall provide for adequate remuneration that 
takes into account the economic value of the license.
    (b) The Administrator, or the Administrator's designee, may decide 
as appropriate to include additional conditions, terms or limitations on 
the scope of the patent license for which

[[Page 690]]

application is made to the Attorney General.



PART 96_NOX Budget Trading Program and Cair NOX and \

SO2 Trading Programs for State Implementation Plans--Table of 

Contents




         Subpart A_NOX Budget Trading Program General Provisions

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 for NOX Budget Sources

96.10 Authorization and responsibilities of the NOX 
          authorized account representative.
96.11 Alternate NOX authorized account representative.
96.12 Changing the NOX authorized account representative and 
          the alternate NOX authorized account 
          representative; changes in the owners and operators.
96.13 Account certificate of representation.
96.14 Objections concerning the NOX authorized account 
          representative.

                            Subpart C_Permits

96.20 General NOX Budget trading program permit requirements.
96.21 Submission of NOX Budget permit applications.
96.22 Information requirements for NOX Budget permit 
          applications.
96.23 NOX Budget permit contents.
96.24 Effective date of initial NOX Budget permit.
96.25 NOX Budget permit revisions.

                   Subpart D_Compliance Certification

96.30 Compliance certification report.
96.31 Permitting authority's and Administrator's action on compliance 
          certifications.

                   Subpart E_NOX Allowance Allocations

96.40 State trading program budget.
96.41 Timing requirements for NOX allowance allocations.
96.42 NOX allowance allocations.

                 Subpart F_NOX Allowance Tracking System

96.50 NOX Allowance Tracking System accounts.
96.51 Establishment of accounts.
96.52 NOX Allowance Tracking System responsibilities 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 for allocations 
          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 Trading Program.
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 Program General 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.

[[Page 691]]

     Subpart BB_CAIR Designated Representative for CAIR NOX Sources

96.110 Authorization and responsibilities of CAIR designated 
          representative.
96.111 Alternate CAIR designated representative.
96.112 Changing CAIR designated representative and alternate CAIR 
          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 and alternate CAIR 
          designated representative.

                           Subpart CC_Permits

96.120 General CAIR NOX Annual Trading Program permit 
          requirements.
96.121 Submission of CAIR permit applications.
96.122 Information requirements for CAIR permit applications.
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 NOX allowance 
          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 account representative.
96.153 Recordation of CAIR NOX allowance allocations.
96.154 Compliance with CAIR NOX emissions limitation.
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 allowance transfers.
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.

                    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 Trading Program.
96.187 Change in regulatory status.
96.188 CAIR NOX allowance allocations to CAIR NOX 
          opt-in units.

Subparts JJ--ZZ [Reserved]

      Subpart AAA_CAIR SO[bdi2] Trading Program General Provisions

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 CAIR SO[bdi2] Sources

96.210 Authorization and responsibilities of CAIR designated 
          representative.
96.211 Alternate CAIR designated representative.
96.212 Changing CAIR designated representative and alternate CAIR 
          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 and alternate CAIR 
          designated representative.

                           Subpart CCC_Permits

96.220 General CAIR SO2 Trading Program permit requirements.
96.221 Submission of CAIR permit applications.
96.222 Information requirements for CAIR permit applications.
96.223 CAIR permit contents and term.
96.224 CAIR permit revisions.

Subparts DDD-EEE [Reserved]

[[Page 692]]

           Subpart FFF_CAIR SO[bdi2] Allowance Tracking System

96.250 [Reserved]
96.251 Establishment of accounts.
96.252 Responsibilities of CAIR authorized account representative.
96.253 Recordation of CAIR SO2 allowances.
96.254 Compliance with CAIR SO2 emissions limitation.
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 allowance transfers.
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 CAIR SO2 
          opt-in units.

Subparts JJJ-ZZZ [Reserved]

  Subpart AAAA_CAIR NOXOzone Season Trading Program 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 CAIR NOX Ozone Season 
                                 Sources

96.310 Authorization and responsibilities of CAIR designated 
          representative.
96.311 Alternate CAIR designated representative.
96.312 Changing CAIR designated representative and alternate CAIR 
          designated representative; changes in owners and operators.
96.313 Certificate of representation.
96.314 Objections concerning CAIR designated representative.
96.315 Delegation by CAIR designated representative and alternate CAIR 
          designated representative.

                          Subpart CCCC_Permits

96.320 General CAIR NOX Ozone Season Trading Program permit 
          requirements.
96.321 Submission of CAIR permit applications.
96.322 Information requirements for CAIR permit applications.
96.323 CAIR permit contents and term.
96.324 CAIR permit revisions.

Subpart DDDD [Reserved]

        Subpart EEEE_CAIR NOX Ozone Season Allowance Allocations

96.340 State trading budgets.
96.341 Timing requirements for CAIR NOX Ozone Season 
          allowance allocations.
96.342 CAIR NOX Ozone Season allowance allocations.

      Subpart FFFF_CAIR NOX Ozone Season Allowance Tracking System

96.350 [Reserved]
96.351 Establishment of accounts.
96.352 Responsibilities of CAIR authorized account representative.
96.353 Recordation of CAIR NOX Ozone Season allowance 
          allocations.
96.354 Compliance with CAIR NOX emissions limitation.
96.355 Banking.
96.356 Account error.
96.357 Closing of general accounts.

         Subpart GGGG_CAIR NOX Ozone Season Allowance Transfers

96.360 Submission of CAIR NOX Ozone Season allowance 
          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.

[[Page 693]]

             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 Season Trading Program.
96.387 Change in regulatory status.
96.388 CAIR NOX Ozone Season allowance allocations 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 otherwise noted.



         Subpart A_NOX Budget Trading Program General Provisions



Sec. 96.1  Purpose.

    This part establishes general provisions and the applicability, 
permitting, allowance, excess emissions, monitoring, and opt-in 
provisions for the NOX Budget Trading Program for State 
implementation plans as a means of mitigating the interstate transport 
of ozone and nitrogen oxides, an ozone precursor. The owner or operator 
of a unit, or any other person, shall comply with requirements of this 
part as a matter of federal law only to the extent a State that has 
jurisdiction over the unit incorporates by reference provisions of this 
part, or otherwise adopts such requirements of this part, and requires 
compliance, the State submits to the Administrator a State 
implementation plan including such adoption and such compliance 
requirement, and the Administrator approves the portion of the State 
implementation plan including such adoption and such compliance 
requirement. To the extent a State adopts requirements of this part, 
including at a minimum the requirements of subpart A (except for Sec. 
96.4(b)), subparts B through D, subpart F (except for Sec. 96.55(c)), 
and subparts G and H of this part, the State authorizes the 
Administrator to assist the State in implementing the NOX 
Budget Trading Program by carrying out the functions set forth for the 
Administrator in such requirements.



Sec. 96.2  Definitions.

    The terms used in this part shall have the meanings set forth in 
this section as follows:
    Account certificate of representation means the completed and signed 
submission required by subpart B of this part for certifying the 
designation of a NOX authorized account representative for a 
NOX Budget source or a group of identified NOX 
Budget sources who is authorized to represent the owners and operators 
of such source or sources and of the NOX Budget units at such 
source or sources with regard to matters under the NOX Budget 
Trading Program.
    Account number means the identification number given by the 
Administrator to each NOX Allowance Tracking System account.
    Acid Rain emissions limitation means, as defined in Sec. 72.2 of 
this chapter, a limitation on emissions of sulfur dioxide or nitrogen 
oxides under the Acid Rain Program under title IV of the CAA.
    Administrator means the Administrator of the United States 
Environmental Protection Agency or the Administrator's duly authorized 
representative.
    Allocate or allocation means the determination by the permitting 
authority or the Administrator of the number of NOX 
allowances to be initially credited to a NOX Budget unit or 
an allocation set-aside.
    Automated data acquisition and handling system or DAHS means that 
component of the CEMS, or other emissions monitoring system approved for 
use under subpart H of this part, designed to interpret and convert 
individual output signals from pollutant concentration monitors, flow 
monitors, diluent gas monitors, and other component parts of the 
monitoring system to produce a continuous record of the measured 
parameters in the measurement units required by subpart H of this part.
    Boiler means an enclosed fossil or other fuel-fired combustion 
device used to produce heat and to transfer heat to recirculating water, 
steam, or other medium.

[[Page 694]]

    CAA means the CAA, 42 U.S.C. 7401, et seq., as amended by Pub. L. 
No. 101-549 (November 15, 1990).
    Combined cycle system means a system comprised of one or more 
combustion turbines, heat recovery steam generators, and steam turbines 
configured to improve overall efficiency of electricity generation or 
steam production.
    Combustion turbine means an enclosed fossil or other fuel-fired 
device that is comprised of a compressor, a combustor, and a turbine, 
and in which the flue gas resulting from the combustion of fuel in the 
combustor passes through the turbine, rotating the turbine.
    Commence commercial operation means, with regard to a unit that 
serves a generator, to have begun to produce steam, gas, or other heated 
medium used to generate electricity for sale or use, including test 
generation. Except as provided in Sec. 96.5, for a unit that is a 
NOX Budget unit under Sec. 96.4 on the date the unit 
commences commercial operation, such date shall remain the unit's date 
of commencement of commercial operation even if the unit is subsequently 
modified, reconstructed, or repowered. Except as provided in Sec. 96.5 
or subpart I of this part, for a unit that is not a NOX 
Budget unit under Sec. 96.4 on the date the unit commences commercial 
operation, the date the unit becomes a NOX Budget unit under 
Sec. 96.4 shall be 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 in Sec. 96.5, for a unit 
that is a NOX Budget unit under Sec. 96.4 on the date of 
commencement of operation, such date shall remain the unit's date of 
commencement of operation even if the unit is subsequently modified, 
reconstructed, or repowered. Except as provided in Sec. 96.5 or subpart 
I of this part, for a unit that is not a NOX Budget unit 
under Sec. 96.4 on the date of commencement of operation, the date the 
unit becomes a NOX Budget unit under Sec. 96.4 shall be the 
unit's date of commencement of operation.
    Common stack means a single flue through which emissions from two or 
more units are exhausted.
    Compliance account means a NOX Allowance Tracking System 
account, established by the Administrator for a NOX Budget 
unit under subpart F of this part, in which the NOX allowance 
allocations for the unit are initially recorded and in which are held 
NOX allowances available for use by the unit for a control 
period for the purpose of meeting the unit's NOX Budget 
emissions limitation.
    Compliance certification means a submission to the permitting 
authority or the Administrator, as appropriate, that is required under 
subpart D of this part to report a NOX Budget source's or a 
NOX Budget unit's compliance or noncompliance with this part 
and that is signed by the NOX authorized account 
representative in accordance with subpart B of this part.
    Continuous emission monitoring system or CEMS means the equipment 
required under subpart H of this part to sample, analyze, measure, and 
provide, by readings taken at least once every 15 minutes of the 
measured parameters, a permanent record of nitrogen oxides emissions, 
expressed in tons per hour for nitrogen oxides. The following systems 
are component parts included, consistent with part 75 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 such 
monitoring is required by subpart H of this part;
    (4) A continuous moisture monitor when such monitoring is required 
by subpart H of this part; and
    (5) An automated data acquisition and handling system.
    Control period means the period beginning May 1 of a year and ending 
on September 30 of the same year, inclusive.
    Emissions means air pollutants exhausted from a unit or source into 
the atmosphere, as measured, recorded, and reported to the Administrator 
by the NOX authorized account representative and as 
determined by the Administrator in accordance with subpart H of this 
part.

[[Page 695]]

    Energy Information Administration means the Energy Information 
Administration of the United States Department of Energy.
    Excess emissions means any tonnage of nitrogen oxides emitted by a 
NOX Budget unit during a control period that exceeds the 
NOX Budget emissions limitation for the unit.
    Fossil fuel means natural gas, petroleum, coal, or any form of 
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 with any 
other fuel, where fossil fuel actually combusted comprises more than 50 
percent of the annual heat input on a Btu basis during any year starting 
in 1995 or, if a unit had no heat input starting in 1995, during the 
last year of operation of the unit prior to 1995; or
    (2) The combustion of fossil fuel, alone or in combination with any 
other fuel, where fossil fuel is projected to comprise more than 50 
percent of the annual heat input on a Btu basis during any year; 
provided that the unit shall be ``fossil fuel-fired'' as of the date, 
during such year, on which the unit begins combusting fossil fuel.
    General account means a NOX Allowance Tracking System 
account, established under subpart F of this part, that is not a 
compliance account or an overdraft account.
    Generator means a device that produces electricity.
    Heat input means the product (in mmBtu/time) of the gross calorific 
value of the fuel (in Btu/lb) and the fuel feed rate into a combustion 
device (in mass of fuel/time), as measured, recorded, and reported to 
the Administrator by the NOX authorized account 
representative and as determined by the Administrator in accordance with 
subpart H of this part, and does not include the heat derived from 
preheated combustion air, recirculated flue gases, or exhaust from other 
sources.
    Life-of-the-unit, firm power contractual arrangement means a unit 
participation power sales agreement under which a utility or industrial 
customer reserves, or is entitled to receive, a specified amount or 
percentage of nameplate capacity and associated energy from any 
specified unit and pays its proportional amount of such 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, including 
contracts that permit an election for early termination; or
    (3) For a period equal to or greater than 25 years or 70 percent of 
the economic useful life of the unit determined as of the time the unit 
is built, with option rights to purchase or release some portion of the 
nameplate capacity and associated energy generated by the unit at the 
end of the period.
    Maximum design heat input means the ability of a unit to combust a 
stated maximum amount of fuel per hour on a steady state basis, as 
determined by the physical design and physical characteristics of the 
unit.
    Maximum potential hourly heat input means an hourly heat input used 
for reporting purposes when a unit lacks certified monitors to report 
heat input. If the unit intends to use appendix D of part 75 of this 
chapter to report heat input, this value should be calculated, in 
accordance with part 75 of this chapter, using the maximum fuel flow 
rate and the maximum gross calorific value. If the unit intends to use a 
flow monitor and a diluent gas monitor, this value should be reported, 
in accordance with part 75 of this chapter, using the maximum potential 
flowrate and either the maximum carbon dioxide concentration (in percent 
CO2) or the minimum oxygen concentration (in percent 
O2).
    Maximum potential NOX emission rate means the emission 
rate of nitrogen oxides (in lb/mmBtu) calculated in accordance with 
section 3 of appendix F of part 75 of this chapter, using the maximum 
potential nitrogen oxides concentration as defined in section 2 of 
appendix A of part 75 of this chapter, and either the maximum oxygen 
concentration (in percent O2) or the minimum 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-specific maximum hourly

[[Page 696]]

heat input (mmBtu) which is the higher of the manufacturer's maximum 
rated hourly heat input or the highest observed hourly heat input.
    Monitoring system means any monitoring system that meets the 
requirements of subpart H of this part, including a continuous emissions 
monitoring system, an excepted monitoring system, or an alternative 
monitoring system.
    Most stringent State or Federal NOX emissions limitation 
means, with regard to a NOX Budget opt-in source, the lowest 
NOX emissions limitation (in terms of lb/mmBtu) that is 
applicable to the unit under State or Federal law, regardless of the 
averaging period to which the emissions limitation applies.
    Nameplate capacity means the maximum electrical generating output 
(in MWe) that a generator can sustain over a specified period of time 
when not restricted by seasonal or other deratings as measured in 
accordance with the United States Department of Energy standards.
    Non-title V permit means a federally enforceable permit administered 
by the permitting authority pursuant to the CAA and regulatory authority 
under the CAA, other than title V of the CAA and part 70 or 71 of this 
chapter.
    NOX allowance means an authorization by the permitting 
authority or the Administrator under the NOX Budget Trading 
Program to emit up to one ton of nitrogen oxides during the control 
period of the specified year or of any year thereafter.
    NOX allowance deduction or deduct NOX 
allowances means the permanent withdrawal of NOX allowances 
by the Administrator from a NOX Allowance Tracking System 
compliance account or overdraft account to account for the number of 
tons of NOX emissions from a NOX Budget unit for a 
control period, determined in accordance with subpart H of this part, or 
for any other allowance surrender obligation under this part.
    NOX allowances held or hold NOX allowances 
means the NOX allowances recorded by the Administrator, or 
submitted to the Administrator for recordation, in accordance with 
subparts F and G of this part, in a NOX Allowance Tracking 
System account.
    NOX Allowance Tracking System means the system by which 
the Administrator records allocations, deductions, and transfers of 
NOX allowances under the NOX Budget Trading 
Program.
    NOX Allowance Tracking System account means an account in 
the NOX Allowance Tracking System established by the 
Administrator for purposes of recording the allocation, holding, 
transferring, or deducting of NOX allowances.
    NOX allowance transfer deadline means midnight of 
November 30 or, if November 30 is not a business day, midnight of the 
first business day thereafter and is the deadline by which 
NOX allowances may be submitted for recordation in a 
NOX Budget unit's compliance account, or the overdraft 
account of the source where the unit is located, in order to meet the 
unit's NOX Budget emissions limitation for the control period 
immediately preceding such deadline.
    NOX authorized account representative means, for a 
NOX Budget source or NOX Budget unit at the 
source, the natural person who is authorized by the owners and operators 
of the source and all NOX Budget units at the source, in 
accordance with subpart B of this part, to represent and legally bind 
each owner and operator in matters pertaining to the NOX 
Budget Trading Program or, for a general account, the natural person who 
is authorized, in accordance with subpart F of this part, to transfer or 
otherwise dispose of NOX allowances held in the general 
account.
    NOX Budget emissions limitation means, for a 
NOX Budget unit, the tonnage equivalent of the NOX 
allowances available for compliance deduction for the unit and for a 
control period under Sec. 96.54(a) and (b), adjusted by any deductions 
of such NOX allowances to account for actual utilization 
under Sec. 96.42(e) for the control period or to account for excess 
emissions for a prior control period under Sec. 96.54(d) or to account 
for withdrawal from the NOX Budget Program, or for a change 
in regulatory status, for a NOX Budget opt-in source under 
Sec. 96.86 or Sec. 96.87.
    NOX Budget opt-in permit means a NOX Budget 
permit covering a NOX Budget opt-in source.

[[Page 697]]

    NOX Budget opt-in source means a unit that has been 
elected to become a NOX Budget unit under the NOX 
Budget Trading Program and whose NOX Budget opt-in permit has 
been issued and is in effect under subpart I of this part.
    NOX Budget permit means the legally binding and federally 
enforceable written document, or portion of such document, issued by the 
permitting authority under this part, including any permit revisions, 
specifying the NOX Budget Trading Program requirements 
applicable to a NOX Budget source, to each NOX 
Budget unit at the NOX Budget source, and to the owners and 
operators and the NOX authorized account representative of 
the NOX Budget source and each NOX Budget unit.
    NOX Budget source means a source that includes one or 
more NOX Budget units.
    NOX Budget Trading Program means a multi-state nitrogen 
oxides air pollution control and emission reduction program established 
in accordance with this part and pursuant to Sec. 51.121 of this 
chapter, as a means of mitigating the interstate transport of ozone and 
nitrogen oxides, an ozone precursor.
    NOX Budget unit means a unit that is subject to the 
NOX Budget Trading Program emissions limitation under Sec. 
96.4 or Sec. 96.80.
    Operating means, with regard to a unit under Sec. Sec. 96.22(d)(2) 
and 96.80, having documented heat input for more than 876 hours in the 6 
months immediately preceding the submission of an application for an 
initial NOX Budget permit under Sec. 96.83(a).
    Operator means any person who operates, controls, or supervises a 
NOX Budget unit, a NOX Budget source, or unit for 
which an application for a NOX Budget opt-in permit under 
Sec. 96.83 is submitted and not denied or withdrawn and shall include, 
but not be limited to, any holding company, utility system, or plant 
manager of such a unit or source.
    Opt-in means to be elected to become a NOX Budget unit 
under the NOX Budget Trading Program through a final, 
effective NOX Budget opt-in permit under subpart I of this 
part.
    Overdraft account means the NOX Allowance Tracking System 
account, established by the Administrator under subpart F of this part, 
for each NOX Budget source where there 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 a 
NOX Budget unit or in a unit for which an application for a 
NOX Budget opt-in permit under Sec. 96.83 is submitted and 
not denied or withdrawn; or
    (2) Any holder of a leasehold interest in a NOX Budget 
unit or in a unit for which an application for a NOX Budget 
opt-in permit under Sec. 96.83 is submitted and not denied or 
withdrawn; or
    (3) Any purchaser of power from a NOX Budget unit or from 
a unit for which an application for a NOX Budget opt-in 
permit under Sec. 96.83 is submitted and not denied or withdrawn under 
a life-of-the-unit, firm power contractual arrangement. However, unless 
expressly provided for in a leasehold agreement, owner shall not include 
a passive lessor, or a person who has an equitable interest through such 
lessor, whose rental payments are not based, either directly or 
indirectly, upon the revenues or income from the NOX Budget 
unit or the unit for which an application for a NOX Budget 
opt-in permit under Sec. 96.83 is submitted and not denied or 
withdrawn; or
    (4) With respect to any general account, any person who has an 
ownership interest with respect to the NOX allowances held in 
the general account and who is subject to the binding agreement for the 
NOX authorized account representative to represent that 
person's ownership interest with respect to NOX allowances.
    Permitting authority means the State air pollution control agency, 
local agency, other State agency, or other agency authorized by the 
Administrator to issue or revise permits to meet the requirements of the 
NOX Budget Trading Program in accordance with subpart C of 
this part.
    Receive or receipt of means, when referring to the permitting 
authority or the Administrator, to come into possession of a document, 
information, or correspondence (whether sent in writing or by authorized 
electronic transmission), as indicated in an official

[[Page 698]]

correspondence log, or by a notation made on the document, information, 
or correspondence, by the permitting authority or the Administrator in 
the regular course of business.
    Recordation, record, or recorded means, with regard to 
NOX allowances, the movement of NOX allowances by 
the Administrator from one NOX Allowance Tracking System 
account to another, for purposes of allocation, transfer, or deduction.
    Reference method means any direct test method of sampling and 
analyzing for an air pollutant as specified in appendix A of part 60 of 
this chapter.
    Serial number means, when referring to NOX allowances, 
the unique identification number assigned to each NOX 
allowance by the Administrator, under Sec. 96.53(c).
    Source means any governmental, institutional, commercial, or 
industrial structure, installation, plant, building, or facility that 
emits or has the potential to emit any regulated air pollutant under the 
CAA. For purposes of section 502(c) of the CAA, a ``source,'' including 
a ``source'' with multiple units, shall be considered a single 
``facility.''
    State means one of the 48 contiguous States and the District of 
Columbia specified in Sec. 51.121 of this chapter, or any non-federal 
authority in or including such States or the District of Columbia 
(including local agencies, and Statewide agencies) or any eligible 
Indian tribe in an area of such State or the District of Columbia, that 
adopts a NOX Budget Trading Program pursuant to Sec. 51.121 
of this chapter. To the extent a State 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 such 
meaning is clear from the context.
    State trading program budget means the total number of 
NOX tons apportioned to all NOX Budget units in a 
given State, in accordance with the NOX Budget Trading 
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 accordance with 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 be determined by the date of dispatch, transmission, or mailing 
and not the date of receipt.
    Title V operating permit means a permit issued under title V of the 
CAA and part 70 or part 71 of this chapter.
    Title V operating permit regulations means the regulations that the 
Administrator has approved or issued as meeting the requirements 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 the NOX Budget 
emissions limitation, total tons for a control period shall be 
calculated as the sum of all recorded hourly emissions (or the tonnage 
equivalent of the recorded hourly emissions rates) in accordance with 
subpart H of this part, with any remaining fraction of a ton equal to or 
greater than 0.50 ton deemed to equal one ton and any fraction of a ton 
less than 0.50 ton deemed to equal zero tons.
    Unit means a fossil fuel-fired stationary boiler, combustion 
turbine, or combined cycle system.
    Unit load means the total (i.e., gross) output of a unit in any 
control period (or other specified time period) produced by combusting 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 other 
than electrical generation, the total steam pressure (psia) produced by 
the unit, including steam for use by the unit.
    Unit operating day means a calendar day in which a unit combusts any 
fuel.
    Unit operating hour or hour of unit operation means any hour (or 
fraction of an hour) during which a unit combusts any fuel.
    Utilization means the heat input (expressed in mmBtu/time) for a 
unit. The unit's total heat input for the control period in each year 
will be determined

[[Page 699]]

in accordance with part 75 of this chapter if the NOX Budget 
unit was otherwise subject to the requirements of part 75 of this 
chapter for the year, or will be based on the best available data 
reported to the Administrator for the unit if the unit was not otherwise 
subject to the requirements of part 75 of this chapter for the year.



Sec. 96.3  Measurements, abbreviations, and acronyms.

    Measurements, abbreviations, and acronyms used in this part are 
defined 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 Budget 
units, and any source that includes one or more such units shall be a 
NOX Budget source, subject to the requirements of this part:
    (1) Any unit that, any time on or after January 1, 1995, serves a 
generator with a nameplate capacity greater than 25 MWe and sells any 
amount of electricity; or
    (2) Any unit that is not a unit under paragraph (a) of this section 
and that has a maximum design heat input greater than 250 mmBtu/hr.
    (b) Notwithstanding paragraph (a) of this section, a unit under 
paragraph (a) of this section shall be subject only to the requirements 
of this paragraph (b) if the unit has a federally enforceable permit 
that meets the requirements of paragraph (b)(1) of this section and 
restricts the unit to burning only natural gas or fuel oil during a 
control period in 2003 or later and each control period thereafter and 
restricts the unit's operating hours during each such control period to 
the number of hours (determined in accordance with paragraph (b)(1)(ii) 
and (iii) of this section) that limits the unit's potential 
NOX mass emissions for the control period to 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.
    (ii) Restrict the unit's operating hours to the number calculated by 
dividing 25 tons of potential NOX mass emissions by the 
unit's maximum potential hourly NOX mass emissions.
    (iii) Require that the unit's potential NOX mass 
emissions shall be calculated as follows:
    (A) Select the default NOX emission rate in Table 2 of 
Sec. 75.19 of this chapter that would otherwise be applicable assuming 
that the unit burns only the type of fuel (i.e., only natural gas or 
only fuel oil) that has the highest default NOX emission 
factor of any type of fuel that the unit is allowed to burn under the 
fuel use restriction in paragraph (b)(1)(i) of this section; and
    (B) Multiply the default NOX emission rate under 
paragraph (b)(1)(iii)(A) of this section by the unit's maximum rated 
hourly heat input. The owner or operator of the unit may petition the 
permitting authority to use a lower value for the unit's maximum rated 
hourly heat input than the value as defined under Sec. 96.2. The 
permitting authority may approve such lower value if the owner or 
operator demonstrates that the maximum hourly heat input specified by 
the 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 been made to the 
unit, limiting its capacity permanently.
    (iv) Require that the owner or operator of the unit shall retain at 
the source that includes the unit, for 5 years, records demonstrating 
that the operating hours restriction, the fuel use restriction, and the 
other requirements of the permit related to these restrictions were met.
    (v) Require that the owner or operator of the unit shall report the 
unit's hours of operation (treating any partial hour of operation as a 
whole hour

[[Page 700]]

of operation) during each control period to the permitting authority by 
November 1 of each year for which the unit is subject to the federally 
enforceable permit.
    (2) The permitting authority that issues the federally enforceable 
permit with the fuel use restriction under paragraph (b)(1)(i) and the 
operating hours restriction under paragraphs (b)(1)(ii) and (iii) of 
this section will notify the Administrator in writing of each unit under 
paragraph (a) of this section whose federally enforceable permit issued 
by the permitting authority includes such restrictions. The permitting 
authority will also notify the Administrator in writing of each unit 
under paragraph (a) of this section whose federally enforceable permit 
issued by the permitting authority is revised to remove any such 
restriction, whose federally enforceable permit issued by the permitting 
authority includes any such restriction that is no longer applicable, or 
which does not comply with any such restriction.
    (3) If, for any control period under paragraph (b) of this section, 
the fuel use restriction under paragraph (b)(1)(i) of this section or 
the operating hours restriction under paragraphs (b)(1)(ii) and (iii) of 
this section is removed from the unit's federally enforceable permit or 
otherwise becomes no longer applicable or if, for any such control 
period, the unit does not comply with the fuel use restriction under 
paragraph (b)(1)(i) of this section or the operating hours restriction 
under paragraphs (b)(1)(ii) and (iii) of this section, the unit shall be 
a NOX Budget unit, subject to the requirements of this part. 
Such unit shall be treated as commencing operation and, for a unit under 
paragraph (a)(1) of this section, commencing commercial operation on 
September 30 of the control period for which the fuel use restriction or 
the operating hours restriction is no longer applicable or during which 
the unit does not comply with the fuel use restriction or the operating 
hours restriction.



Sec. 96.5  Retired unit exemption.

    (a) This section applies to any NOX Budget unit, other 
than a NOX Budget opt-in source, that is permanently retired.
    (b)(1) Any NOX Budget unit, other than a NOX 
Budget opt-in source, that is permanently retired shall 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.
    (2) The exemption under paragraph (b)(1) of this section shall 
become effective the day on which the unit is permanently retired. 
Within 30 days of permanent retirement, the NOX authorized 
account representative (authorized in accordance with subpart B of this 
part) shall submit a statement to the permitting authority otherwise 
responsible for administering any NOX Budget permit for the 
unit. A copy of the statement shall be submitted to the Administrator. 
The statement shall state (in a format prescribed by the permitting 
authority) that the unit is permanently retired and will comply with the 
requirements of paragraph (c) of this section.
    (3) After receipt of the notice under paragraph (b)(2) of this 
section, the permitting authority will amend any permit covering the 
source at which the unit is located to add the provisions and 
requirements of the exemption under paragraphs (b)(1) and (c) of this 
section.
    (c) Special provisions. (1) A unit exempt under this section shall 
not emit any nitrogen oxides, starting on the date that the exemption 
takes effect. The owners and operators of the unit will be allocated 
allowances in accordance with subpart E of this part.
    (2)(i) A unit exempt under this section and located at a source that 
is required, or but for this exemption would be required, to have a 
title V operating permit shall not resume operation unless the 
NOX authorized account representative of the source submits a 
complete NOX Budget permit application under Sec. 96.22 for 
the unit not less than 18 months (or such lesser time provided under the 
permitting authority's title V operating permits regulations for final 
action on a permit application) prior to the later of May 1, 2003 or the 
date on which the unit is to first resume operation.
    (ii) A unit exempt under this section and located at a source that 
is required, or but for this exemption would

[[Page 701]]

be required, to have a non-title V permit shall not resume operation 
unless the NOX authorized account representative of the 
source submits a complete NOX Budget permit application under 
Sec. 96.22 for the unit not less than 18 months (or such lesser time 
provided under the permitting authority's non-title V permits 
regulations for final action on a permit application) prior to the later 
of May 1, 2003 or the date on which the unit is to first resume 
operation.
    (3) The owners and operators and, to the extent applicable, the 
NOX authorized account representative of a unit exempt under 
this section shall comply with the requirements of the NOX 
Budget Trading Program concerning all periods for which 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 be a 
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 shall 
retain at the source that includes the unit, records demonstrating that 
the unit is permanently retired. The 5-year period for keeping records 
may be extended for cause, at any time prior to the end of the period, 
in writing by the permitting authority or the Administrator. The owners 
and operators bear the burden of proof that the unit is permanently 
retired.
    (6) Loss of exemption. (i) On the earlier of the following dates, a 
unit exempt under paragraph (b) of this section shall lose its 
exemption:
    (A) The date on which the NOX authorized account 
representative submits a NOX Budget permit application under 
paragraph (c)(2) of this section; or
    (B) The date on which the NOX authorized account 
representative is required under paragraph (c)(2) of this section to 
submit a NOX Budget permit application.
    (ii) For the purpose of applying monitoring requirements under 
subpart H of this part, a unit that loses its exemption under this 
section shall be treated as a unit that commences operation or 
commercial operation on the first date on which the unit resumes 
operation.



Sec. 96.6  Standard requirements.

    (a) Permit Requirements. (1) The NOX authorized account 
representative of each NOX Budget source required to have a 
federally enforceable permit and each NOX Budget unit 
required to have a federally enforceable permit at the source shall:
    (i) Submit to the permitting authority a complete NOX 
Budget permit application under Sec. 96.22 in accordance with the 
deadlines specified in Sec. 96.21(b) and (c);
    (ii) Submit in a timely manner any supplemental information that the 
permitting authority determines is necessary in order to review a 
NOX Budget permit application and issue or deny a 
NOX Budget permit.
    (2) The owners and operators of each NOX Budget source 
required to have a federally enforceable permit and each NOX 
Budget unit required to have a federally enforceable permit at the 
source shall have a NOX Budget permit issued by the 
permitting authority and operate the unit in compliance with such 
NOX Budget permit.
    (3) The owners and operators of a NOX Budget source that 
is not otherwise required to have a federally enforceable permit are not 
required to submit a NOX Budget permit application, and to 
have a NOX Budget permit, under subpart C of this part for 
such NOX Budget source.
    (b) Monitoring requirements. (1) The owners and operators and, to 
the extent applicable, the NOX authorized account 
representative of each NOX Budget source and each 
NOX Budget unit at the source shall comply with the 
monitoring requirements of subpart H of this part.
    (2) The emissions measurements recorded and reported in accordance 
with subpart H of this part shall be used to determine compliance by the 
unit with the NOX Budget emissions limitation under paragraph 
(c) of this section.
    (c) Nitrogen oxides requirements. (1) The owners and operators of 
each NOX Budget source and each NOX Budget

[[Page 702]]

unit at the source shall hold NOX allowances available for 
compliance deductions under Sec. 96.54, as of the NOX 
allowance transfer deadline, in the unit's compliance account and the 
source's overdraft account in an amount not less than the total 
NOX emissions for the control period from the unit, as 
determined in accordance with subpart H of this part, plus any amount 
necessary to account for actual utilization under Sec. 96.42(e) for the 
control period.
    (2) Each ton of nitrogen oxides emitted in excess of the 
NOX Budget emissions limitation shall constitute a separate 
violation of this part, the CAA, and applicable State law.
    (3) A NOX Budget unit shall be subject to the 
requirements under paragraph (c)(1) of this section starting on the 
later of May 1, 2003 or the date on which the unit commences operation.
    (4) NOX allowances shall be held in, deducted from, or 
transferred among NOX Allowance Tracking System accounts in 
accordance with subparts E, F, G, and I of this part.
    (5) A NOX allowance shall not be deducted, in order to 
comply with the requirements under paragraph (c)(1) of this section, for 
a control period in a year prior to the year for which the 
NOX allowance was allocated.
    (6) A NOX allowance allocated by the permitting authority 
or the Administrator under the NOX Budget Trading Program is 
a limited authorization to emit one ton of nitrogen oxides in accordance 
with the NOX Budget Trading Program. No provision of the 
NOX Budget Trading Program, the NOX Budget permit 
application, the NOX Budget permit, or an exemption under 
Sec. 96.5 and no provision of law shall be construed to limit the 
authority of the United States or the State to terminate or limit such 
authorization.
    (7) A NOX allowance allocated by the permitting authority 
or the Administrator under the NOX Budget Trading Program 
does not constitute a property right.
    (8) Upon recordation by the Administrator under subpart F, G, or I 
of this part, every allocation, transfer, or deduction of a 
NOX allowance to or from a NOX Budget unit's 
compliance account or the overdraft account of the source where the unit 
is located is deemed to amend automatically, and become a part of, any 
NOX Budget permit of the NOX Budget unit by 
operation of law without any further review.
    (d) Excess emissions requirements. (1) The owners and operators of a 
NOX Budget unit that has excess emissions in any control 
period shall:
    (i) Surrender the NOX allowances required for deduction 
under Sec. 96.54(d)(1); and
    (ii) Pay any fine, penalty, or assessment or comply with any other 
remedy imposed under Sec. 96.54(d)(3).
    (e) Recordkeeping and Reporting requirements. (1) Unless otherwise 
provided, the owners and operators of the NOX Budget source 
and each NOX Budget unit at the source shall keep on site at 
the source each of the following documents for a period of 5 years from 
the date the document is created. This period may be extended for cause, 
at any time prior to the end of 5 years, in writing by the permitting 
authority or the Administrator.
    (i) The account certificate of representation for the NOX 
authorized account representative for the source and each NOX 
Budget unit at the source and all documents that demonstrate the truth 
of the statements in the account certificate of representation, in 
accordance with Sec. 96.13; provided that the certificate and documents 
shall be retained on site at the source beyond such 5-year period until 
such documents are superseded because of the submission of a new account 
certificate of representation changing the NOX authorized 
account representative.
    (ii) All emissions monitoring information, in accordance with 
subpart H of this part; provided that to the extent that subpart H of 
this part provides for a 3-year period for recordkeeping, the 3-year 
period shall apply.
    (iii) Copies of all reports, compliance certifications, and other 
submissions and all records made or required under the NOX 
Budget Trading Program.
    (iv) Copies of all documents used to complete a NOX 
Budget permit application and any other submission under the 
NOX Budget Trading Program or to demonstrate compliance with 
the requirements of the NOX Budget Trading Program.

[[Page 703]]

    (2) The NOX authorized account representative of a 
NOX Budget source and each NOX Budget unit at the 
source shall submit the reports and compliance certifications required 
under the NOX Budget Trading Program, including those under 
subparts D, H, or I of this part.
    (f) Liability. (1) Any person who knowingly violates any requirement 
or prohibition of the NOX Budget Trading Program, a 
NOX Budget permit, or an exemption under Sec. 96.5 shall be 
subject to enforcement pursuant to applicable State or Federal law.
    (2) Any person who knowingly makes a false material statement in any 
record, submission, or report under the NOX Budget Trading 
Program shall be subject to criminal enforcement pursuant to the 
applicable State or Federal law.
    (3) No permit revision shall excuse any violation of the 
requirements of the NOX Budget Trading Program that occurs 
prior to the date that the revision takes effect.
    (4) Each NOX Budget source and each NOX Budget 
unit shall meet the requirements of the NOX Budget Trading 
Program.
    (5) Any provision of the NOX Budget Trading Program that 
applies to a NOX Budget source (including a provision 
applicable to the NOX authorized account representative of a 
NOX Budget source) shall also apply to the owners and 
operators of such source and of the NOX Budget units at the 
source.
    (6) Any provision of the NOX Budget Trading Program that 
applies to a NOX Budget unit (including a provision 
applicable to the NOX authorized account representative of a 
NOX budget unit) shall also apply to the owners and operators 
of such unit. Except with regard to the requirements applicable to units 
with a common stack under subpart H of this part, the owners and 
operators and the NOX authorized account representative of 
one NOX Budget unit shall not be liable for any violation by 
any other NOX Budget unit of which they are not owners or 
operators or the NOX authorized account representative and 
that is located at a source of which they are not owners or operators or 
the NOX authorized account representative.
    (g) Effect on other authorities. No provision of the NOX 
Budget Trading Program, a NOX Budget permit application, a 
NOX Budget permit, or an exemption under Sec. 96.5 shall be 
construed as exempting or excluding the owners and operators and, to the 
extent applicable, the NOX authorized account representative 
of a NOX Budget source or NOX Budget unit from 
compliance with any other 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 the 
NOX Budget Trading Program, to begin on the occurrence of an 
act or event shall begin on the day the act or event occurs.
    (b) Unless otherwise stated, any time period scheduled, under the 
NOX Budget Trading Program, to begin before the occurrence of 
an act or event shall be computed so that the period ends the day before 
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 weekend or a 
State or Federal holiday, the time period shall be extended to the next 
business day.



 Subpart B_NOX Authorized Account Representative for NOX Budget Sources



Sec. 96.10  Authorization and responsibilities of the NOX authorized account 

representative.

    (a) Except as provided under Sec. 96.11, each NOX Budget 
source, including all NOX Budget units at the source, shall 
have one and only one NOX authorized account representative, 
with regard to all matters under the NOX Budget Trading 
Program concerning the source or any NOX Budget unit at the 
source.
    (b) The NOX authorized account representative of the 
NOX Budget source shall be selected by an agreement binding 
on the owners and operators of the source and all NOX Budget 
units at the source.

[[Page 704]]

    (c) Upon receipt by the Administrator of a complete account 
certificate of representation under Sec. 96.13, the NOX 
authorized account representative of the source shall represent and, by 
his or her representations, actions, inactions, or submissions, legally 
bind each owner and operator of the NOX Budget source 
represented and each NOX Budget unit at the source in all 
matters pertaining to the NOX Budget Trading Program, not 
withstanding any agreement between the NOX authorized account 
representative and such owners and operators. The owners and operators 
shall be bound by any decision or order issued to the NOX 
authorized account representative by the permitting authority, the 
Administrator, or a court regarding the source or unit.
    (d) No NOX Budget permit shall be issued, and no 
NOX Allowance Tracking System account shall be established 
for a NOX Budget unit at a source, until the Administrator 
has received a complete account certificate of representation under 
Sec. 96.13 for a NOX authorized account representative of 
the source and the NOX Budget units at the source.
    (e)(1) Each submission under the NOX Budget Trading 
Program shall be submitted, signed, and certified by the NOX 
authorized account representative for each NOX Budget source 
on behalf of which the submission is made. Each such submission shall 
include the following certification statement by the NOX 
authorized account representative: ``I am authorized to make this 
submission on behalf of the owners and operators of the NOX 
Budget sources or NOX Budget units for which the submission 
is made. I certify under penalty of law that I have personally examined, 
and am familiar with, the statements and information submitted in this 
document and all its attachments. Based on my inquiry of those 
individuals with primary responsibility for obtaining the information, I 
certify that the statements and information are to the best of my 
knowledge and belief true, accurate, and complete. I am aware that there 
are significant penalties for submitting false statements and 
information or omitting required statements and information, including 
the possibility of fine or imprisonment.''
    (2) The permitting authority and the Administrator will accept or 
act on a submission made on behalf of owner or operators of a 
NOX Budget source or a NOX Budget unit only if the 
submission has been made, signed, and certified in accordance with 
paragraph (e)(1) of this section.



Sec. 96.11  Alternate NOX authorized account representative.

    (a) An account certificate of representation may designate one and 
only one alternate NOX authorized account representative who 
may act on behalf of the NOX authorized account 
representative. The agreement by which the alternate NOX 
authorized account representative is selected shall include a procedure 
for authorizing the alternate NOX authorized account 
representative to act in lieu of the NOX authorized account 
representative.
    (b) Upon receipt by the Administrator of a complete account 
certificate of representation under Sec. 96.13, any representation, 
action, inaction, or submission by the alternate NOX 
authorized account representative shall be deemed to be a 
representation, action, inaction, or submission by the NOX 
authorized account representative.
    (c) Except in this section and Sec. Sec. 96.10(a), 96.12, 96.13, 
and 96.51, whenever the term ``NOX authorized account 
representative'' is used in this part, the term shall be construed to 
include the alternate NOX authorized account representative.



Sec. 96.12  Changing the NOX authorized account representative and the 

alternate NOX authorized account representative; changes in the owners and 

operators.

    (a) Changing the NOX authorized account representative. 
The NOX authorized account representative may be changed at 
any time upon receipt by the Administrator of a superseding complete 
account certificate of representation under Sec. 96.13. Notwithstanding 
any such change, all representations, actions, inactions, and 
submissions by the previous NOX authorized account 
representative prior to the time and date when the Administrator

[[Page 705]]

receives the superseding account certificate of representation shall be 
binding on the new NOX authorized account representative and 
the owners and operators of the NOX Budget source and the 
NOX Budget units at the source.
    (b) Changing the alternate NOX authorized account 
representative. The alternate NOX authorized account 
representative may be changed at any time upon receipt by the 
Administrator of a superseding complete account certificate of 
representation under Sec. 96.13. Notwithstanding any such change, all 
representations, actions, inactions, and submissions by the previous 
alternate NOX authorized account representative prior to the 
time and date when the Administrator receives the superseding account 
certificate of representation shall be binding on the new alternate 
NOX authorized account representative and the owners and 
operators of the NOX Budget source and the NOX 
Budget units at the source.
    (c) Changes in the owners and operators. (1) In the event a new 
owner or operator of a NOX Budget source or a NOX 
Budget unit is not included in the list of owners and operators 
submitted in the account certificate of representation, such new owner 
or operator shall be deemed to be subject to and bound by the account 
certificate of representation, the representations, actions, inactions, 
and submissions of the NOX authorized account representative 
and any alternate NOX authorized account representative of 
the source or unit, and the decisions, orders, actions, and inactions of 
the permitting authority or the Administrator, as if the new owner or 
operator were included in such list.
    (2) Within 30 days following any change in the owners and operators 
of a NOX Budget source or a NOX Budget unit, 
including the addition of a new owner or operator, the NOX 
authorized account representative or alternate NOX authorized 
account representative shall submit a revision to the account 
certificate of representation amending the list of owners and operators 
to include the change.



Sec. 96.13  Account certificate of representation.

    (a) A complete account certificate of representation for a 
NOX authorized account representative or an alternate 
NOX authorized account representative shall include the 
following elements in a format prescribed by the Administrator:
    (1) Identification of the NOX Budget source and each 
NOX Budget unit at the source for which the account 
certificate of representation is submitted.
    (2) The name, address, e-mail address (if any), telephone number, 
and facsimile transmission number (if any) of the NOX 
authorized account representative and any alternate NOX 
authorized account representative.
    (3) A list of the owners and operators of the NOX Budget 
source and of each NOX Budget unit at the source.
    (4) The following certification statement by the NOX 
authorized account representative and any alternate NOX 
authorized account representative: ``I certify that I was selected as 
the NOX authorized account representative or alternate 
NOX authorized account representative, as applicable, by an 
agreement binding on the owners and operators of the NOX 
Budget source and each NOX Budget unit at the source. I 
certify that I have all the necessary authority to carry out my duties 
and responsibilities under the NOX Budget Trading Program on 
behalf of the owners and operators of the NOX Budget source 
and of each NOX Budget unit at the source and that each such 
owner and operator shall be fully bound by my representations, actions, 
inactions, or submissions and by any decision or order issued to me by 
the permitting authority, the Administrator, or a court regarding the 
source or unit.''
    (5) The signature of the NOX authorized account 
representative and any alternate NOX authorized account 
representative and the dates signed.
    (b) Unless otherwise required by the permitting authority or the 
Administrator, documents of agreement referred to in the account 
certificate of representation shall not be submitted to the permitting 
authority or the Administrator. Neither the permitting authority nor the 
Administrator shall be under any obligation to review or

[[Page 706]]

evaluate the sufficiency of such documents, if submitted.



Sec. 96.14  Objections concerning the NOX authorized account representative.

    (a) Once a complete account certificate of representation under 
Sec. 96.13 has been submitted and received, the permitting authority 
and the Administrator will rely on the account certificate of 
representation unless and until a superseding complete account 
certificate of representation under Sec. 96.13 is received by the 
Administrator.
    (b) Except as provided in Sec. 96.12(a) or (b), no objection or 
other communication submitted to the permitting authority or the 
Administrator concerning the authorization, or any representation, 
action, inaction, or submission of the NOX authorized account 
representative shall affect any representation, action, inaction, or 
submission of the NOX authorized account representative or 
the finality of any decision or order by the permitting authority or the 
Administrator under the NOX Budget Trading Program.
    (c) Neither the permitting authority nor the Administrator will 
adjudicate any private legal dispute concerning the authorization or any 
representation, action, inaction, or submission of any NOX 
authorized account representative, including private legal disputes 
concerning the proceeds of NOX allowance transfers.



                            Subpart C_Permits



Sec. 96.20  General NOX Budget trading program permit requirements.

    (a) For each NOX Budget source required to have a 
federally enforceable permit, such permit shall include a NOX 
Budget permit administered by the permitting authority.
    (1) For NOX Budget sources required to have a title V 
operating permit, the NOX Budget portion of the title V 
permit shall be administered in accordance with the permitting 
authority's title V operating permits regulations promulgated under part 
70 or 71 of this chapter, except as provided otherwise by this subpart 
or subpart I of this part. The applicable provisions of such title V 
operating permits regulations shall include, but are not limited to, 
those provisions addressing operating permit applications, operating 
permit application shield, operating permit duration, operating permit 
shield, operating permit issuance, operating permit revision and 
reopening, public participation, State review, and review by the 
Administrator.
    (2) For NOX Budget sources required to have a non-title V 
permit, the NOX Budget portion of the non-title V permit 
shall be administered in accordance with the permitting authority's 
regulations promulgated to administer non-title V permits, except as 
provided otherwise by this subpart or subpart I of this part. The 
applicable provisions of such non-title V permits regulations may 
include, but are not limited to, provisions addressing permit 
applications, permit application shield, permit duration, permit shield, 
permit issuance, permit revision and reopening, public participation, 
State review, and review by the Administrator.
    (b) Each NOX Budget permit (including a draft or proposed 
NOX Budget permit, if applicable) shall contain all 
applicable NOX Budget Trading Program requirements and shall 
be a complete and segregable portion of the permit under paragraph (a) 
of this section.



Sec. 96.21  Submission of NOX Budget permit applications.

    (a) Duty to apply. The NOX authorized account 
representative of any NOX Budget source required to have a 
federally enforceable permit shall submit to the permitting authority a 
complete NOX Budget permit application under Sec. 96.22 by 
the applicable deadline in paragraph (b) of this section.
    (b)(1) For NOX Budget sources required to have a title V 
operating permit:
    (i) For any source, with one or more NOX Budget units 
under Sec. 96.4 that commence operation before January 1, 2000, the 
NOX authorized account representative shall submit a complete 
NOX Budget permit application under Sec. 96.22 covering such 
NOX Budget units to the permitting authority at least 18 
months (or such lesser time provided under the permitting authority's 
title V operating permits regulations for final action on a permit 
application) before May 1, 2003.

[[Page 707]]

    (ii) For any source, with any NOX Budget unit under Sec. 
96.4 that commences operation on or after January 1, 2000, the 
NOX authorized account representative shall submit a complete 
NOX Budget permit application under Sec. 96.22 covering such 
NOX Budget unit to the permitting authority at least 18 
months (or such lesser time provided under the permitting authority's 
title V operating permits regulations for final action on a permit 
application) before the later of May 1, 2003 or the date 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 units 
under Sec. 96.4 that commence operation before January 1, 2000, the 
NOX authorized account representative shall submit a complete 
NOX Budget permit application under Sec. 96.22 covering such 
NOX Budget units to the permitting authority at least 18 
months (or such lesser time provided under the permitting authority's 
non-title V permits regulations for final action on a permit 
application) before May 1, 2003.
    (ii) For any source, with any NOX Budget unit under Sec. 
96.4 that commences operation on or after January 1, 2000, the 
NOX authorized account representative shall submit a complete 
NOX Budget permit application under Sec. 96.22 covering such 
NOX Budget unit to the permitting authority at least 18 
months (or such lesser time provided under the permitting authority's 
non-title V permits regulations for final action on a permit 
application) before the later of May 1, 2003 or the date on which the 
NOX Budget unit commences operation.
    (c) Duty to reapply. (1) For a NOX Budget source required 
to have a title V operating permit, the NOX authorized 
account representative shall submit a complete NOX Budget 
permit application under Sec. 96.22 for the NOX Budget 
source covering the NOX Budget units at the source in 
accordance with the permitting authority's title V operating permits 
regulations addressing operating permit renewal.
    (2) For a NOX Budget source required to have a non-title 
V permit, the NOX authorized account representative shall 
submit a complete NOX Budget permit application under Sec. 
96.22 for the NOX Budget source covering the NOX 
Budget units at the source in accordance with the permitting authority's 
non-title V permits regulations addressing permit renewal.



Sec. 96.22  Information requirements for NOX Budget permit applications.

    A complete NOX Budget permit application shall include 
the following elements concerning the NOX Budget source for 
which the application is submitted, in a format prescribed by the 
permitting authority:
    (a) Identification of the NOX Budget source, including 
plant name and the ORIS (Office of Regulatory Information Systems) or 
facility code assigned to the source by the Energy Information 
Administration, if applicable;
    (b) Identification of each NOX Budget unit at the 
NOX Budget source and whether it is a NOX Budget 
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 the NOX 
Budget source, the following certification statements by the 
NOX authorized account representative:
    (1) ``I certify that each unit for which this permit application is 
submitted under subpart I of this part is not a NOX Budget 
unit under 40 CFR 96.4 and is not covered by a retired unit exemption 
under 40 CFR 96.5 that is in effect.''
    (2) If the application is for an initial NOX Budget opt-
in permit, ``I certify that each unit for which this permit application 
is submitted under subpart I is currently operating, as that term is 
defined under 40 CFR 96.2.''



Sec. 96.23  NOX Budget permit contents.

    (a) Each NOX Budget permit (including any draft or 
proposed NOX Budget permit, if applicable) will contain, in a 
format prescribed by the permitting authority, all elements required for 
a complete NOX Budget permit application under Sec. 96.22 as 
approved or adjusted by the permitting authority.
    (b) Each NOX Budget permit is deemed to incorporate 
automatically the definitions of terms under Sec. 96.2

[[Page 708]]

and, upon recordation by the Administrator under subparts F, G, or I of 
this part, every allocation, transfer, or deduction of a NOX 
allowance to or from the compliance accounts of the NOX 
Budget units covered by the permit or the overdraft account 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 a NOX 
Budget unit for which a complete NOX Budget permit 
application is timely submitted under Sec. 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 unit 
commences operation, if the unit commences operation on or before May 1 
of that year;
    (c) The date on which the NOX Budget unit commences 
operation, if the unit commences operation during a control period; or
    (d) May 1 of the year following the year in which the NOX 
Budget unit commences operation, if the unit commences operation 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 operating 
permit, except as provided in Sec. 96.23(b), the permitting authority 
will revise the NOX Budget permit, as necessary, in 
accordance with the permitting authority's title V operating permits 
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 permitting authority will 
revise the NOX Budget permit, as necessary, in accordance 
with the permitting authority's non-title V permits regulations 
addressing permit revisions.



                   Subpart D_Compliance Certification



Sec. 96.30  Compliance certification report.

    (a) Applicability and deadline. For each control period in which one 
or more NOX Budget units at a source are subject to the 
NOX Budget emissions limitation, the NOX 
authorized account representative of the source shall submit to the 
permitting authority and the Administrator by November 30 of that year, 
a compliance certification report for each source covering all such 
units.
    (b) Contents of report. The NOX authorized account 
representative shall include in the compliance certification report 
under paragraph (a) of this section the following elements, in a format 
prescribed by the Administrator, concerning each unit at the source and 
subject to the NOX Budget emissions limitation for the 
control period covered by the report:
    (1) Identification of each NOX Budget unit;
    (2) At the NOX authorized account representative's 
option, the serial numbers of the NOX allowances that are to 
be deducted from each unit's compliance account under Sec. 96.54 for 
the control period;
    (3) At the NOX authorized account representative's 
option, for units sharing a common stack and having NOX 
emissions that are not monitored separately or apportioned in accordance 
with subpart H of this part, the percentage of allowances that is to be 
deducted from each unit's compliance account under Sec. 96.54(e); and
    (4) The compliance certification under paragraph (c) of this 
section.
    (c) Compliance certification. In the compliance certification report 
under paragraph (a) of this section, the NOX authorized 
account representative shall certify, based on reasonable inquiry of 
those persons with primary responsibility for operating the source and 
the NOX Budget units at the source in compliance with the 
NOX Budget Trading Program, whether each NOX 
Budget unit for which the compliance certification is submitted was 
operated during the calendar year covered by the report in compliance 
with the requirements of the NOX Budget Trading Program 
applicable to the unit, including:
    (1) Whether the unit was operated in compliance with the 
NOX Budget emissions limitation;
    (2) Whether the monitoring plan that governs the unit has been 
maintained to reflect the actual operation and monitoring of the unit, 
and contains

[[Page 709]]

all information necessary to attribute NOX emissions to the 
unit, in accordance with subpart H of this part;
    (3) Whether all the NOX emissions from the unit, or a 
group of units (including the unit) using a common stack, were monitored 
or accounted for through the missing data procedures and reported in the 
quarterly monitoring reports, including whether conditional data were 
reported in the quarterly reports in accordance with subpart H of this 
part. If conditional data were reported, the owner or operator shall 
indicate whether the status of all conditional data has been resolved 
and all necessary quarterly report resubmissions has been made;
    (4) Whether the facts that form the basis for certification under 
subpart 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 excepted 
monitoring method or alternative monitoring method approved under 
subpart 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 the 
change, when the change occurred, and how the unit's compliance status 
was determined subsequent to the change, including what method was used 
to determine emissions when a change mandated the need for monitor 
recertification.



Sec. 96.31  Permitting authority's and Administrator's action on compliance 

certifications.

    (a) The permitting authority or the Administrator may review and 
conduct independent audits concerning any compliance certification or 
any other submission under the NOX Budget Trading Program and 
make appropriate adjustments of the information in the compliance 
certifications or other submissions.
    (b) The Administrator may deduct NOX allowances from or 
transfer NOX allowances to a unit's compliance account or a 
source's overdraft account based on the information in the compliance 
certifications or other submissions, as adjusted under paragraph (a) of 
this section.



                   Subpart E_NOX Allowance Allocations



Sec. 96.40  State trading program budget.

    The State trading program budget allocated by the permitting 
authority under Sec. 96.42 for a control period will equal the total 
number of tons of NOX emissions apportioned to the 
NOX Budget units under Sec. 96.4 in the State for the 
control period, as determined by 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 to 
the Administrator the NOX allowance allocations, in 
accordance 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, the 
permitting authority will submit to the Administrator the NOX 
allowance allocations, in accordance with Sec. 96.42, for the control 
period in the year that is three years after the year of the applicable 
deadline for submission under this paragraph (b). If the permitting 
authority fails to submit to the Administrator the NOX 
allowance allocations in accordance with this paragraph (b), the 
Administrator will allocate, for the applicable control period, the same 
number of NOX allowances as were allocated for the preceding 
control period.
    (c) By April 1, 2004 and April 1 of each year thereafter, the 
permitting authority will submit to the Administrator the NOX 
allowance allocations, in accordance with Sec. 96.42, for any 
NOX allowances remaining in the allocation set-aside for the 
prior control period.



Sec. 96.42  NOX allowance allocations.

    (a)(1) The heat input (in mmBtu) used for calculating NOX 
allowance allocations for each NOX Budget unit under Sec. 
96.4 will be:
    (i) For a NOX allowance allocation under Sec. 96.41(a), 
the average of the two highest amounts of the unit's heat input for the 
control periods in 1995, 1996, and 1997 if the unit is under Sec. 
96.4(a)(1) or the control period in 1995 if the unit is under Sec. 
96.4(a)(2); and
    (ii) For a NOX allowance allocation under Sec. 96.41(b), 
the unit's heat input

[[Page 710]]

for the control period in the year that is four years before the year 
for which the NOX allocation is being calculated.
    (2) The unit's total heat input for the control period in each year 
specified under paragraph (a)(1) of this section will be determined in 
accordance with part 75 of this chapter if the NOX Budget 
unit was otherwise subject to the requirements of part 75 of this 
chapter for the year, or will be based on the best available data 
reported to the permitting authority for the unit if the unit was not 
otherwise subject to the requirements of part 75 of this chapter for the 
year.
    (b) For each control period under Sec. 96.41, the permitting 
authority will allocate to all NOX Budget units under Sec. 
96.4(a)(1) in the State that commenced operation before May 1 of the 
period used to calculate heat input under paragraph (a)(1) of this 
section, a total number of NOX allowances equal to 95 percent 
in 2003, 2004, and 2005, or 98 percent thereafter, of the tons of 
NOX emissions in the State trading program budget apportioned 
to electric generating units under Sec. 96.40 in accordance with the 
following procedures:
    (1) The permitting authority will allocate NOX allowances 
to each NOX Budget unit under Sec. 96.4(a)(1) in an amount 
equaling 0.15 lb/mmBtu multiplied by the heat input determined under 
paragraph (a) of this section, rounded to the nearest whole 
NOX allowance as appropriate.
    (2) If the initial total number of NOX allowances 
allocated to all NOX Budget units under Sec. 96.4(a)(1) in 
the State for a control period under paragraph (b)(1) of this section 
does not equal 95 percent in 2003, 2004, and 2005, or 98 percent 
thereafter, of the number of tons of NOX emissions in the 
State trading program budget apportioned to electric generating units, 
the permitting authority will adjust the total number of NOX 
allowances allocated to all such NOX Budget units for the 
control period under paragraph (b)(1) of this section so that the total 
number of NOX allowances allocated equals 95 percent in 2003, 
2004, and 2005, or 98 percent thereafter, of the number of tons of 
NOX emissions in the State trading program budget apportioned 
to electric generating units. This adjustment will be made by: 
multiplying each unit's allocation by 95 percent in 2003, 2004, and 
2005, or 98 percent thereafter, of the number of tons of NOX 
emissions in the State trading program budget apportioned to electric 
generating units divided by the total number of NOX 
allowances allocated under paragraph (b)(1) of this section, and 
rounding to the nearest whole NOX allowance as appropriate.
    (c) For each control period under Sec. 96.41, the permitting 
authority will allocate to all NOX Budget units under Sec. 
96.4(a)(2) in the State that commenced operation before May 1 of the 
period used to calculate heat input under paragraph (a)(1) of this 
section, a total number of NOX allowances equal to 95 percent 
in 2003, 2004, and 2005, or 98 percent thereafter, of the tons of 
NOX emissions in the State trading program budget apportioned 
to non-electric generating units under Sec. 96.40 in accordance with 
the following procedures:
    (1) The permitting authority will allocate NOX allowances 
to each NOX Budget unit under Sec. 96.4(a)(2) in an amount 
equaling 0.17 lb/mmBtu multiplied by the heat input determined under 
paragraph (a) of this section, rounded to the nearest whole 
NOX allowance as appropriate.
    (2) If the initial total number of NOX allowances 
allocated to all NOX Budget units under Sec. 96.4(a)(2) in 
the State for a control period under paragraph (c)(1) of this section 
does not equal 95 percent in 2003, 2004, and 2005, or 98 percent 
thereafter, of the number of tons of NOX emissions in the 
State trading program budget apportioned to non-electric generating 
units, the permitting authority will adjust the total number of 
NOX allowances allocated to all such NOX Budget 
units for the control period under paragraph (c)(1) of this section so 
that the total number of NOX allowances allocated equals 95 
percent in 2003, 2004, and 2005, or 98 percent thereafter, of the number 
of tons of NOX emissions in the State trading program budget 
apportioned to non-electric generating units. This adjustment will be 
made by: multiplying each unit's allocation by 95 percent in 2003, 2004, 
and 2005, or 98 percent thereafter, of the number of tons of 
NOX emissions in the State trading program

[[Page 711]]

budget apportioned to non-electric generating units divided by the total 
number of NOX allowances allocated under paragraph (c)(1) of 
this section, and rounding to the nearest whole NOX allowance 
as appropriate.
    (d) For each control period under Sec. 96.41, the permitting 
authority will allocate NOX allowances to NOX 
Budget units under Sec. 96.4 in the State that commenced operation, or 
is projected to commence operation, on or after 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 be allocated 
NOX allowances equal to 5 percent in 2003, 2004, and 2005, or 
2 percent thereafter, of the tons of NOX emissions in the 
State trading program budget under Sec. 96.40, rounded to the nearest 
whole NOX allowance as appropriate.
    (2) The NOX authorized account representative of a 
NOX Budget unit under paragraph (d) of this section may 
submit to the permitting authority a request, in writing or in a format 
specified by the permitting authority, to be allocated NOX 
allowances for no more than five consecutive control periods under Sec. 
96.41, starting with the control period during which the NOX 
Budget unit commenced, or is projected to commence, operation and ending 
with the control period preceding the control period for which it will 
receive an allocation under paragraph (b) or (c) of this section. The 
NOX allowance allocation request must be submitted prior to 
May 1 of the first control period for which the NOX allowance 
allocation is requested and after the date on which the permitting 
authority issues a permit to construct the NOX Budget unit.
    (3) In a NOX allowance allocation request under paragraph 
(d)(2) of this section, the NOX authorized account 
representative for units under Sec. 96.4(a)(1) may request for a 
control period NOX allowances in an amount that does not 
exceed 0.15 lb/mmBtu multiplied by the NOX Budget unit's 
maximum design heat input (in mmBtu/hr) multiplied by the number of 
hours remaining in the control period starting with the first day in the 
control period on which the unit operated or is projected to operate.
    (4) In a NOX allowance allocation request under paragraph 
(d)(2) of this section, the NOX authorized account 
representative for units under Sec. 96.4(a)(2) may request for a 
control period NOX allowances in an amount that does not 
exceed 0.17 lb/mmBtu multiplied by the NOX Budget unit's 
maximum design heat input (in mmBtu/hr) multiplied by the number of 
hours remaining in the control period starting with the first day in the 
control period on which the unit operated or is projected to operate.
    (5) The permitting authority will review, and allocate 
NOX allowances pursuant to, each NOX allowance 
allocation request under paragraph (d)(2) of this section in the order 
that the request is received by the permitting authority.
    (i) Upon receipt of the NOX allowance allocation request, 
the permitting authority will determine whether, and will make any 
necessary adjustments to the request to ensure that, for units under 
Sec. 96.4(a)(1), the control period and the number of allowances 
specified are consistent with the requirements of paragraphs (d)(2) and 
(3) of this section and, for units under Sec. 96.4(a)(2), the control 
period and the number of allowances specified are consistent with the 
requirements of paragraphs (d)(2) and (4) of this section.
    (ii) If the allocation set-aside for the control period for which 
NOX allowances are requested has an amount of NOX 
allowances not less than the number requested (as adjusted under 
paragraph (d)(5)(i) of this section), the permitting authority will 
allocate the amount of the NOX allowances requested (as 
adjusted under paragraph (d)(5)(i) of this section) to the 
NOX Budget unit.
    (iii) If the allocation set-aside for the control period for which 
NOX allowances are requested has a smaller amount of 
NOX allowances than the number requested (as adjusted under 
paragraph (d)(5)(i) of this section), the permitting authority will deny 
in part the request and allocate only the remaining number of 
NOX allowances in

[[Page 712]]

the allocation set-aside to the NOX Budget unit.
    (iv) Once an allocation set-aside for a control period has been 
depleted of all NOX allowances, the permitting authority will 
deny, and will not allocate any NOX allowances pursuant to, 
any NOX allowance allocation request under which 
NOX allowances have not already been allocated for the 
control period.
    (6) Within 60 days of receipt of a NOX allowance 
allocation request, the permitting authority will take appropriate 
action under paragraph (d)(5) of this section and notify the 
NOX authorized account representative that submitted the 
request and the Administrator of the number of NOX allowances 
(if any) allocated for the control period to the NOX Budget 
unit.
    (e) For a NOX Budget unit that is allocated 
NOX allowances under paragraph (d) of this section for a 
control period, the Administrator will deduct NOX allowances 
under Sec. 96.54(b) or (e) to account for the actual utilization of the 
unit during the control period. The Administrator will calculate the 
number of NOX allowances to be deducted to account for the 
unit's actual utilization using the following formulas and rounding to 
the nearest whole NOX allowance as appropriate, provided that 
the number of NOX allowances to be deducted shall be zero if 
the number calculated is less than zero:

NOX allowances deducted for actual utilization for units 
    under Sec. 96.4(a)(1) = (Unit's NOX allowances allocated 
    for control period)-(Unit's actual control period utilization x 0.15 
    lb/mmBtu); and
NOX allowances deducted for actual utilization for units 
    under Sec. 96.4(a)(2) = (Unit's NOX allowances allocated 
    for control period)-(Unit's actual control period utilization x 0.17 
    lb/mmBtu)

Where:

``Unit's NOX allowances allocated for control period'' is the 
number of NOX allowances allocated to the unit for the 
control period under paragraph (d) of this section; and
``Unit's actual control period utilization'' is the utilization (in 
mmBtu), as defined in Sec. 96.2, of the unit during the control period.

    (f) After making the deductions for compliance under Sec. 96.54(b) 
or (e) for a control period, the Administrator will notify the 
permitting authority whether any NOX allowances remain in the 
allocation set-aside for the control period. The permitting authority 
will allocate any such NOX allowances to the NOX 
Budget units in the State using the following formula and rounding to 
the nearest whole NOX allowance as appropriate:

Unit's share of NOX allowances remaining in allocation set-
    aside = Total NOX allowances remaining in allocation set-
    aside x (Unit's NOX allowance allocation / State trading 
    program budget excluding allocation set-aside)

Where:

``Total NOX allowances remaining in allocation set-aside'' is 
the total number of NOX allowances remaining in the 
allocation set-aside for the control period to which the allocation set-
aside applies;
``Unit's NOX allowance allocation'' is the number of 
NOX allowances allocated under paragraph (b) or (c) of this 
section to the unit for the control period to which the allocation set-
aside applies; and
``State trading program budget excluding allocation set-aside'' is the 
State trading program budget under Sec. 96.40 for the control period to 
which the allocation set-aside applies multiplied by 95 percent if the 
control period is in 2003, 2004, or 2005 or 98 percent if the control 
period is in any year thereafter, rounded to the nearest whole 
NOX allowance as appropriate.

[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 overdraft 
accounts. Consistent with Sec. 96.51(a), the Administrator will 
establish one compliance account for each NOX Budget unit and 
one overdraft account for each source with one or more NOX 
Budget units. Allocations of NOX allowances pursuant to 
subpart E of this part or Sec. 96.88 and deductions or transfers of 
NOX allowances pursuant to Sec. 96.31, Sec. 96.54, Sec. 
96.56, subpart G of this part, or subpart I of

[[Page 713]]

this part will be recorded in the compliance accounts or overdraft 
accounts in accordance with this subpart.
    (b) Nature and function of general accounts. Consistent with Sec. 
96.51(b), the Administrator will establish, upon request, a general 
account for any person. Transfers of allowances pursuant to subpart G of 
this part will be recorded in the general account in accordance with 
this subpart.



Sec. 96.51  Establishment of accounts.

    (a) Compliance accounts and overdraft accounts. Upon receipt of a 
complete account certificate of representation under Sec. 96.13, the 
Administrator will establish:
    (1) A compliance account for each NOX Budget unit for 
which the account certificate of representation was submitted; and
    (2) An overdraft account for each source for which the account 
certificate of representation was submitted and that has two or more 
NOX Budget units.
    (b) General accounts. (1) Any person may apply to open a general 
account for the purpose of holding and transferring allowances. A 
complete application for a general account shall be submitted to the 
Administrator and shall include the following elements in a format 
prescribed by the Administrator:
    (i) Name, mailing address, e-mail address (if any), telephone 
number, and facsimile transmission number (if any) of the NOX 
authorized account representative and any alternate NOX 
authorized account representative;
    (ii) At the option of the NOX authorized account 
representative, organization name and type of organization;
    (iii) A list of all persons subject to a binding agreement for the 
NOX authorized account representative or any alternate 
NOX authorized account representative to represent their 
ownership interest with respect to the allowances held in the general 
account;
    (iv) The following certification statement by the NOX 
authorized account representative and any alternate NOX 
authorized account representative: ``I certify that I was selected as 
the NOX authorized account representative or the 
NOX alternate authorized account representative, as 
applicable, by an agreement that is binding on all persons who have an 
ownership interest with respect to allowances held in the general 
account. I certify that I have all the necessary authority to carry out 
my duties and responsibilities under the NOX Budget Trading 
Program on behalf of such persons and that each such person shall be 
fully bound by my representations, actions, inactions, or submissions 
and by any order or decision issued to me by the Administrator or a 
court regarding the general account.''
    (v) The signature of the NOX authorized account 
representative and any alternate NOX authorized account 
representative and the dates signed.
    (vi) Unless otherwise required by the permitting authority or the 
Administrator, documents of agreement referred to in the account 
certificate of representation shall not be submitted to the permitting 
authority or the Administrator. Neither the permitting authority nor the 
Administrator shall be under any obligation to review or evaluate the 
sufficiency of such documents, if submitted.
    (2) Upon receipt by the Administrator of a complete application for 
a general account under paragraph (b)(1) of this section:
    (i) The Administrator will establish a general account for the 
person or persons for whom the application is submitted.
    (ii) The NOX authorized account representative and any 
alternate NOX authorized account representative for the 
general account shall represent and, by his or her representations, 
actions, inactions, or submissions, legally bind each person who has an 
ownership interest with respect to NOX allowances held in the 
general account in all matters pertaining to the NOX Budget 
Trading Program, not withstanding any agreement between the 
NOX authorized account representative or any alternate 
NOX authorized account representative and such person. Any 
such person shall be bound by any order or decision issued to the 
NOX authorized account representative or any alternate 
NOX authorized account representative by the Administrator or 
a court regarding the general account.

[[Page 714]]

    (iii) Each submission concerning the general account shall be 
submitted, signed, and certified by the NOX authorized 
account representative or any alternate NOX authorized 
account representative for the persons having an ownership interest with 
respect to NOX allowances held in the general account. Each 
such submission shall include the following certification statement by 
the NOX authorized account representative or any alternate 
NOX authorized account representative any: ``I am authorized 
to make this submission on behalf of the persons having an ownership 
interest with respect to the NOX allowances held in the 
general account. I certify under penalty of law that I have personally 
examined, and am familiar with, the statements and information submitted 
in this document and all its attachments. Based on my inquiry of those 
individuals with primary responsibility for obtaining the information, I 
certify that the statements and information are to the best of my 
knowledge and belief true, accurate, and complete. I am aware that there 
are significant penalties for submitting false statements and 
information or omitting required statements and information, including 
the possibility of fine or imprisonment.''
    (iv) The Administrator will accept or act on a submission concerning 
the general account only if the submission has been made, signed, and 
certified in accordance with paragraph (b)(2)(iii) of this section.
    (3)(i) An application for a general account may designate one and 
only one NOX authorized account representative and one and 
only one alternate NOX authorized account representative who 
may act on behalf of the NOX authorized account 
representative. The agreement by which the alternate NOX 
authorized account representative is selected shall include a procedure 
for authorizing the alternate NOX authorized account 
representative to act in lieu of the NOX authorized account 
representative.
    (ii) Upon receipt by the Administrator of a complete application for 
a general account under paragraph (b)(1) of this section, any 
representation, action, inaction, or submission by any alternate 
NOX authorized account representative shall be deemed to be a 
representation, action, inaction, or submission by the NOX 
authorized account representative.
    (4)(i) The NOX authorized account representative for a 
general account may be changed at any time upon receipt by the 
Administrator of a superseding complete application for a general 
account under paragraph (b)(1) of this section. Notwithstanding any such 
change, all representations, actions, inactions, and submissions by the 
previous NOX authorized account representative prior to the 
time and date when the Administrator receives the superseding 
application for a general account shall be binding on the new 
NOX authorized account representative and the persons with an 
ownership interest with respect to the allowances in the general 
account.
    (ii) The alternate NOX authorized account representative 
for a general account may be changed at any time upon receipt by the 
Administrator of a superseding complete application for a general 
account under paragraph (b)(1) of this section. Notwithstanding any such 
change, all representations, actions, inactions, and submissions by the 
previous alternate NOX authorized account representative 
prior to the time and date when the Administrator receives the 
superseding application for a general account shall be binding on the 
new alternate NOX authorized account representative and the 
persons with an ownership interest with respect to the allowances in the 
general account.
    (iii)(A) In the event a new person having an ownership interest with 
respect to NOX allowances in the general account is not 
included in the list of such persons in the account certificate of 
representation, such new person shall be deemed to be subject to and 
bound by the account certificate of representation, the representation, 
actions, inactions, and submissions of the NOX authorized 
account representative and any alternate NOX authorized 
account representative of the source or unit, and the decisions, orders, 
actions, and inactions of the Administrator, as if the new person were 
included in such list.

[[Page 715]]

    (B) Within 30 days following any change in the persons having an 
ownership interest with respect to NOX allowances in the 
general account, including the addition of persons, the NOX 
authorized account representative or any alternate NOX 
authorized account representative shall submit a revision to the 
application for a general account amending the list of persons having an 
ownership interest with respect to the NOX allowances in the 
general account to include the change.
    (5)(i) Once a complete application for a general account under 
paragraph (b)(1) of this section has been submitted and received, the 
Administrator will rely on the application unless and until a 
superseding 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, no 
objection or other communication submitted to the Administrator 
concerning the authorization, or any representation, action, inaction, 
or submission of the NOX authorized account representative or 
any alternate NOX authorized account representative for a 
general account shall affect any representation, action, inaction, or 
submission of the NOX authorized account representative or 
any alternate NOX authorized account representative or the 
finality of any decision or order by the Administrator under the 
NOX Budget Trading Program.
    (iii) The Administrator will not adjudicate any private legal 
dispute concerning the authorization or any representation, action, 
inaction, or submission of the NOX authorized account 
representative or any alternate NOX authorized account 
representative for a general account, including private legal disputes 
concerning the proceeds of NOX allowance transfers.
    (c) Account identification. The Administrator will assign a unique 
identifying number to each account established under paragraph (a) or 
(b) of this section.



Sec. 96.52  NOX Allowance Tracking System responsibilities of NOX authorized 

account representative.

    (a) Following the establishment of a NOX Allowance 
Tracking System account, all submissions to the Administrator pertaining 
to the account, including, but not limited to, submissions concerning 
the deduction or transfer of NOX allowances in the account, 
shall be made only by the NOX authorized account 
representative for the account.
    (b) Authorized account representative identification. The 
Administrator will assign a unique identifying number to each 
NOX authorized account representative.



Sec. 96.53  Recordation of NOX allowance allocations.

    (a) The Administrator will record the NOX allowances for 
2003 in the NOX Budget units' compliance accounts and the 
allocation set-asides, as allocated under subpart E of this part. The 
Administrator will also record the NOX allowances allocated 
under Sec. 96.88(a)(1) for each NOX Budget opt-in source in 
its compliance account.
    (b) Each year, after the Administrator has made all deductions from 
a NOX Budget unit's compliance account and the overdraft 
account pursuant to Sec. 96.54, the Administrator will record 
NOX allowances, as allocated to the unit under subpart E of 
this part or under Sec. 96.88(a)(2), in the compliance account for the 
year after the last year for which allowances were previously allocated 
to the compliance account. Each year, the Administrator will also record 
NOX allowances, as allocated under subpart E of this part, in 
the allocation set-aside for the year after the last year for which 
allowances were previously allocated to an allocation set-aside.
    (c) Serial numbers for allocated NOX allowances. When 
allocating NOX allowances to and recording them in an 
account, the Administrator will assign each NOX allowance a 
unique identification number that will include digits identifying the 
year for which the NOX allowance is allocated.

[[Page 716]]



Sec. 96.54  Compliance.

    (a) NOX allowance transfer deadline. The NOX 
allowances are available to be deducted for compliance with a unit's 
NOX Budget emissions limitation for a control period in a 
given year only if the NOX allowances:
    (1) Were allocated for a control period in a prior year or the same 
year; and
    (2) Are held in the unit's compliance account, or the overdraft 
account of the source where the unit is located, as of the 
NOX allowance transfer deadline for that control period or 
are transferred into the compliance account or overdraft account by a 
NOX allowance transfer correctly submitted for recordation 
under Sec. 96.60 by the NOX allowance transfer deadline for 
that control period.
    (b) Deductions for compliance. (1) Following the recordation, in 
accordance with Sec. 96.61, of NOX allowance transfers 
submitted for recordation in the unit's compliance account or the 
overdraft account of the source where the unit is located by the 
NOX allowance transfer deadline for a control period, the 
Administrator will deduct NOX allowances available under 
paragraph (a) of this section to cover the unit's NOX 
emissions (as determined in accordance with subpart H of this part), or 
to account for actual utilization under Sec. 96.42(e), for the control 
period:
    (i) From the compliance account; and
    (ii) Only if no more NOX allowances available under 
paragraph (a) of this section remain in the compliance account, from the 
overdraft account. In deducting allowances for units at the source from 
the overdraft account, the Administrator will begin with the unit having 
the compliance account with the lowest NOX Allowance Tracking 
System account number and end with the unit having the compliance 
account with the highest NOX Allowance Tracking System 
account number (with account numbers sorted beginning with the left-most 
character and ending with the right-most character and the letter 
characters assigned values in alphabetical order and less than all 
numeric characters).
    (2) The Administrator will deduct NOX allowances first 
under 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 for the 
control period equals the number of tons of NOX emissions, 
determined in accordance with subpart H of this part, from the unit for 
the control period for which compliance is being determined, plus the 
number of NOX allowances required for deduction to account 
for actual utilization under Sec. 96.42(e) for the control period; or
    (ii) Until no more NOX allowances available under 
paragraph (a) of this section remain in the respective account.
    (c)(1) Identification of NOX allowances by serial number. 
The NOX authorized account representative for each compliance 
account may identify by serial number the NOX allowances to 
be deducted from the unit's compliance account under paragraph (b), (d), 
or (e) of this section. Such identification shall be made in the 
compliance certification report submitted in accordance with Sec. 
96.30.
    (2) First-in, first-out. The Administrator will deduct 
NOX allowances for a control period from the compliance 
account, in the absence of an identification or in the case of a partial 
identification of NOX allowances by serial number under 
paragraph (c)(1) of this section, or the overdraft account on a first-
in, first-out (FIFO) accounting basis in the following order:
    (i) Those NOX allowances that were allocated for the 
control period to the unit under subpart E or I of this part;
    (ii) Those NOX allowances that were allocated for the 
control period to any unit and transferred and recorded in the account 
pursuant to subpart G of this part, in order of their date of 
recordation;
    (iii) Those NOX allowances that were allocated for a 
prior control period to the unit under subpart E or I of this part; and
    (iv) Those NOX allowances that were allocated for a prior 
control period to any unit and transferred and recorded in the account 
pursuant to subpart G of this part, in order of their date of 
recordation.

[[Page 717]]

    (d) Deductions for excess emissions. (1) After making the deductions 
for compliance under paragraph (b) of this section, the Administrator 
will deduct from the unit's compliance account or the overdraft account 
of the source where the unit is located a number of NOX 
allowances, allocated for a control period after the control period in 
which the unit has excess emissions, equal to three times the number of 
the unit's excess emissions.
    (2) If the compliance account or overdraft account does not contain 
sufficient NOX allowances, the Administrator will deduct the 
required number of NOX allowances, regardless of the control 
period for which they were allocated, whenever NOX allowances 
are recorded in either account.
    (3) Any allowance deduction required under paragraph (d) of this 
section shall not affect the liability of the owners and operators of 
the NOX Budget unit for any fine, penalty, or assessment, or 
their obligation to comply with any other remedy, for the same 
violation, as ordered under the CAA 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 control period, 
each day in the control period (153 days) constitutes a day in violation 
unless the owners and operators of the unit demonstrate that a 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 case of 
units sharing a common stack and having emissions that are not 
separately monitored or apportioned in accordance with subpart H of this 
part:
    (1) The NOX authorized account representative of the 
units may identify the percentage of NOX allowances to be 
deducted from each such unit's compliance account to cover the unit's 
share of NOX emissions from the common stack for a control 
period. Such identification shall be made in the compliance 
certification report submitted in accordance with Sec. 96.30.
    (2) Notwithstanding paragraph (b)(2)(i) of this section, the 
Administrator will deduct NOX allowances for each such unit 
until the number of NOX allowances deducted equals the unit's 
identified percentage (under paragraph (e)(1) of this section) of the 
number of tons of NOX emissions, as determined in accordance 
with subpart H of this part, from the common stack for the control 
period for which compliance is being determined or, if no percentage is 
identified, an equal percentage for each such unit, plus the number of 
allowances required for deduction to account for actual utilization 
under Sec. 96.42(e) for the control period.
    (f) The Administrator will record in the appropriate compliance 
account or overdraft account all deductions from such an account 
pursuant to paragraphs (b), (d), or (e) of this section.



Sec. 96.55  Banking.

    (a) NOX allowances may be banked for future use or 
transfer in a compliance account, an overdraft account, or a general 
account, as follows:
    (1) Any NOX allowance that is held in a compliance 
account, an overdraft account, or a general account will remain in such 
account unless and until the NOX allowance is deducted or 
transferred under Sec. 96.31, Sec. 96.54, Sec. 96.56, subpart G of 
this part, or subpart I of this part.
    (2) The Administrator will designate, as a ``banked'' NOX 
allowance, any NOX allowance that remains in a compliance 
account, an overdraft account, or a general account after the 
Administrator has made all deductions for a given control period from 
the compliance account or overdraft account pursuant to Sec. 96.54.
    (b) Each year starting in 2004, after the Administrator has 
completed the designation of banked NOX allowances under 
paragraph (a)(2) of this section and before May 1 of the year, the 
Administrator will determine the extent to which banked NOX 
allowances may be used for compliance in the control period for the 
current year, as follows:
    (1) The Administrator will determine the total number of banked 
NOX allowances held in compliance accounts, overdraft 
accounts, or general accounts.

[[Page 718]]

    (2) If the total number of banked NOX allowances 
determined, under paragraph (b)(1) of this section, to be held in 
compliance accounts, overdraft accounts, or general accounts is less 
than or equal to 10% of the sum of the State trading program budgets for 
the control period for the States in which NOX Budget units 
are located, any banked NOX allowance may be deducted for 
compliance in accordance with Sec. 96.54.
    (3) If the total number of banked NOX allowances 
determined, under paragraph (b)(1) of this section, to be held in 
compliance accounts, overdraft accounts, or general accounts exceeds 10% 
of the sum of the State trading program budgets for the control period 
for the States in which NOX Budget units are located, any 
banked allowance may be deducted for compliance in accordance with Sec. 
96.54, except as follows:
    (i) The Administrator will determine the following ratio: 0.10 
multiplied by the sum of the State trading program budgets for the 
control period for the States in which NOX Budget units are 
located and divided by the total number of banked NOX 
allowances determined, under paragraph (b)(1) of this section, to be 
held in compliance accounts, overdraft accounts, or general accounts.
    (ii) The Administrator will multiply the number of banked 
NOX allowances in each compliance account or overdraft 
account. The resulting product is the number of banked NOX 
allowances in the account that may be deducted for compliance in 
accordance with Sec. 96.54. Any banked NOX allowances in 
excess of the resulting product may be deducted for compliance in 
accordance with Sec. 96.54, except that, if such NOX 
allowances are used to make a deduction, two such NOX 
allowances must be deducted for each deduction of one NOX 
allowance required under Sec. 96.54.
    (c) Any NOX Budget unit may reduce its NOX 
emission rate in the 2001 or 2002 control period, the owner or operator 
of the unit may request early reduction credits, and the permitting 
authority may allocate NOX allowances in 2003 to the unit in 
accordance with the following requirements.
    (1) Each NOX Budget unit for which the owner or operator 
requests any early reduction credits under paragraph (c)(4) of this 
section shall monitor NOX emissions in accordance with 
subpart H of this part starting in the 2000 control period and for each 
control period for which such early reduction credits are requested. The 
unit's monitoring system availability shall be not less than 90 percent 
during the 2000 control period, and the unit must be in compliance with 
any applicable State or Federal emissions or emissions-related 
requirements.
    (2) NOX emission rate and heat input under paragraphs 
(c)(3) through (5) of this section shall be determined in accordance 
with subpart H of this part.
    (3) Each NOX Budget unit for which the owner or operator 
requests any early reduction credits under paragraph (c)(4) of this 
section shall reduce its NOX emission rate, for each control 
period for which early reduction credits are requested, to less than 
both 0.25 lb/mmBtu and 80 percent of the unit's NOX emission 
rate in the 2000 control period.
    (4) The NOX authorized account representative of a 
NOX Budget unit that meets the requirements of paragraphs 
(c)(1)and (3) of this section may submit to the permitting authority a 
request for early reduction credits for the unit based on NOX 
emission rate reductions made by the unit in the control period for 2001 
or 2002 in accordance with paragraph (c)(3) of this section.
    (i) In the early reduction credit request, the NOX 
authorized account may request early reduction credits for such control 
period in an amount equal to the unit's heat input for such control 
period multiplied by the difference between 0.25 lb/mmBtu and the 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 a 
format specified by the permitting authority, by October 31 of the year 
in which the NOX emission rate reductions on which the 
request is based are made or such later date approved by the permitting 
authority.
    (5) The permitting authority will allocate NOX 
allowances, to NOX Budget units meeting the requirements of 
paragraphs (c)(1) and (3) of this section

[[Page 719]]

and covered by early reduction requests meeting the requirements of 
paragraph (c)(4)(ii) of this section, in accordance with the following 
procedures:
    (i) Upon receipt of each early reduction credit request, the 
permitting authority will accept the request only if the requirements of 
paragraphs (c)(1), (c)(3), and (c)(4)(ii) of this section are met and, 
if the request is accepted, will make any necessary adjustments to the 
request to ensure that the amount of the early reduction credits 
requested meets the requirement of paragraphs (c)(2) and (4) of this 
section.
    (ii) If the State's compliance supplement pool has an amount of 
NOX allowances not less than the number of early reduction 
credits in all accepted early reduction credit requests for 2001 and 
2002 (as adjusted under paragraph (c)(5)(i) of this section), the 
permitting authority will allocate to each NOX Budget unit 
covered by such accepted requests one allowance for each early reduction 
credit requested (as adjusted under paragraph (c)(5)(i) of this 
section).
    (iii) If the State's compliance supplement pool has a smaller amount 
of NOX allowances than the number of early reduction credits 
in all accepted early reduction credit requests for 2001 and 2002 (as 
adjusted under paragraph (c)(5)(i) of this section), the permitting 
authority will allocate NOX allowances to each NOX 
Budget unit covered by such accepted requests according to the following 
formula:

Unit's allocated early reduction credits = [(Unit's adjusted early 
    reduction credits) / (Total adjusted early reduction credits 
    requested by all units)]x(Available NOX allowances from 
    the State's compliance supplement pool)

where:

``Unit's adjusted early reduction credits'' is the number of early 
reduction credits for the unit for 2001 and 2002 in accepted early 
reduction credit requests, as adjusted under paragraph (c)(5)(i) of this 
section.
``Total adjusted early reduction credits requested by all units'' is the 
number of early reduction credits for all units for 2001 and 2002 in 
accepted early reduction credit requests, as adjusted under paragraph 
(c)(5)(i) of this section.
``Available NOX allowances from the State's compliance 
supplement pool'' is the number of NOX allowances in the 
State's compliance supplement pool and available for early reduction 
credits for 2001 and 2002.

    (6) By May 1, 2003, the permitting authority will submit to the 
Administrator the allocations of NOX allowances determined 
under paragraph (c)(5) of this section. The Administrator will record 
such allocations to the extent that they are consistent with the 
requirements of paragraphs (c)(1) through (5) of this section.
    (7) NOX allowances recorded under paragraph (c)(6) of 
this section may be deducted for compliance under Sec. 96.54 for the 
control periods in 2003 or 2004. Notwithstanding paragraph (a) of this 
section, the Administrator will deduct as retired any NOX 
allowance that is recorded under paragraph (c)(6) of this section and is 
not deducted for compliance in accordance with Sec. 96.54 for the 
control period in 2003 or 2004.
    (8) NOX allowances recorded under paragraph (c)(6) of 
this section are treated as banked allowances in 2004 for the purposes 
of paragraphs (a) and (b) of this section.



Sec. 96.56  Account error.

    The Administrator may, at his or her sole discretion and on his or 
her own motion, correct any error in any NOX Allowance 
Tracking System account. Within 10 business days of making such 
correction, the Administrator will notify the NOX authorized 
account representative for the account.



Sec. 96.57  Closing of general accounts.

    (a) The NOX authorized account representative of a 
general account may instruct the Administrator to close the account by 
submitting a statement requesting deletion of the account from the 
NOX Allowance Tracking System and by correctly submitting for 
recordation under Sec. 96.60 an allowance transfer of all 
NOX allowances in the account to one or more other 
NOX Allowance Tracking System accounts.
    (b) If a general account shows no activity for a period of a year or 
more and does not contain any NOX allowances, the 
Administrator may notify the NOX authorized account 
representative for the account that the account

[[Page 720]]

will be closed and deleted from the NOX Allowance Tracking 
System following 20 business days after the notice is sent. The account 
will be closed after the 20-day period unless before the end of the 20-
day period the Administrator receives a correctly submitted transfer of 
NOX allowances into the account under Sec. 96.60 or a 
statement submitted by the NOX authorized account 
representative demonstrating to the satisfaction of the Administrator 
good 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 seeking 
recordation of a NOX allowance transfer shall submit the 
transfer to the Administrator. To be considered correctly submitted, the 
NOX allowance transfer shall include the following elements 
in a format specified by the Administrator:
    (a) The numbers identifying both the transferor and transferee 
accounts;
    (b) A specification by serial number of each NOX 
allowance to be transferred; and
    (c) The printed name and signature of the NOX authorized 
account representative of the transferor account and the date signed.



Sec. 96.61  EPA recordation.

    (a) Within 5 business days of receiving a NOX allowance 
transfer, except as provided in paragraph (b) of this section, the 
Administrator will record a NOX allowance transfer by moving 
each NOX allowance from the transferor account to the 
transferee account as specified by the request, provided that:
    (1) The transfer is correctly submitted under Sec. 96.60;
    (2) The transferor account includes each NOX allowance 
identified 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 for 
recordation following the NOX allowance transfer deadline and 
that includes any NOX allowances allocated for a control 
period prior to or the same as the control period to which the 
NOX allowance transfer deadline applies will not be recorded 
until after completion of the process of recordation of NOX 
allowance allocations in Sec. 96.53(b).
    (c) Where a NOX allowance transfer submitted for 
recordation fails to meet the requirements of paragraph (a) of this 
section, the Administrator will not record such transfer.



Sec. 96.62  Notification.

    (a) Notification of recordation. Within 5 business days of 
recordation of a NOX allowance transfer under Sec. 96.61, 
the Administrator will notify each party to the transfer. Notice will be 
given to the NOX authorized account representatives of both 
the transferror and transferee accounts.
    (b) Notification of non-recordation. Within 10 business days of 
receipt of a NOX allowance transfer that fails to meet the 
requirements of Sec. 96.61(a), the Administrator will notify the 
NOX authorized account representatives of 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 a 
NOX allowance transfer for recordation following notification 
of non-recordation.



                   Subpart H_Monitoring and Reporting



Sec. 96.70  General requirements.

    The owners and operators, and to the extent applicable, the 
NOX authorized account representative of a NOX 
Budget unit, shall comply with the monitoring and reporting requirements 
as provided in this subpart and in subpart H of part 75 of this chapter. 
For purposes of complying with such requirements, the definitions in 
Sec. 96.2 and in Sec. 72.2 of this chapter shall apply, and the terms 
``affected unit,'' ``designated representative,'' and ``continuous 
emission monitoring system'' (or ``CEMS'') in part 75 of this chapter 
shall be replaced by the terms ``NOX Budget

[[Page 721]]

unit,'' ``NOX authorized account representative,'' and 
``continuous emission monitoring system'' (or ``CEMS''), respectively, 
as defined in Sec. 96.2.
    (a) Requirements for installation, certification, and data 
accounting. The owner or operator of each NOX Budget unit 
must meet the following requirements. These provisions also apply to a 
unit for which an application for a NOX Budget opt-in permit 
is submitted and not denied or withdrawn, as provided in subpart I of 
this part:
    (1) Install all monitoring systems required under this subpart for 
monitoring NOX mass. This includes all systems required to 
monitor NOX emission rate, NOX concentration, heat 
input, and flow, in accordance with Sec. Sec. 75.72 and 75.76.
    (2) Install all monitoring systems for monitoring heat input, if 
required under Sec. 96.76 for developing NOX allowance 
allocations.
    (3) Successfully complete all certification tests required under 
Sec. 96.71 and meet all other provisions of this subpart and part 75 of 
this chapter applicable to the monitoring systems under paragraphs 
(a)(1) and (2) of this section.
    (4) Record, and report data from the monitoring systems under 
paragraphs (a)(1) and (2) of this section.
    (b) Compliance dates. The owner or operator must meet the 
requirements of paragraphs (a)(1) through (a)(3) of this section on or 
before the following dates and must record and report data on and after 
the following dates:
    (1) NOX Budget units for which the owner or operator 
intends to apply for early reduction credits under Sec. 96.55(d) must 
comply with the requirements of this subpart by May 1, 2000.
    (2) Except for NOX Budget units under paragraph (b)(1) of 
this section, NOX Budget units under Sec. 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 that commence 
operation on or after January 1, 2002 and that report on an annual basis 
under Sec. 96.74(d) must comply with the requirements 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 operation 
or, (B) For units under Sec. 96.4(a)(1), 90 days after the date on 
which the unit commences commercial operation.
    (4) NOX Budget units under Sec. 96.4 that commence 
operation on or after January 1, 2002 and that report on a control 
season basis under Sec. 96.74(d) must comply with the 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 operation 
or,
    (B) For units under Sec. 96.4(a)(1), 90 days after the date on 
which the unit commences commercial operation.
    (ii) However, if the applicable deadline under paragraph (b)(4)(i) 
section 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 for 
which construction is completed after the applicable deadline under 
paragraph ( b)(1), (b)(2) or (b)(3) of this section or subpart I of this 
part:
    (i) 90 days after the date on which emissions first exit to the 
atmosphere through the new stack or flue;
    (ii) However, if the unit reports on a control season basis under 
Sec. 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 NOX Budget 
opt in permit is submitted and not denied or withdrawn, the compliance 
dates specified under subpart I of this part.
    (c) Reporting data prior to initial certification. (1) The owner or 
operator of a NOX Budget unit that misses the certification 
deadline under paragraph (b)(1) of this section is not eligible to apply 
for early reduction credits. The owner or operator of the unit becomes 
subject to the certification deadline under paragraph (b)(2) of this 
section.
    (2) The owner or operator of a NOX Budget under 
paragraphs (b)(3) or (b)(4) of this section must determine, record and 
report NOX mass, heat input (if required for purposes of 
allocations) and any other values required to determine

[[Page 722]]

NOX Mass (e.g. NOX emission rate and heat input or 
NOX concentration and stack flow) using the provisions of 
Sec. 75.70(g) of this chapter, from the date and hour that the unit 
starts operating until all required certification tests are successfully 
completed.
    (d) Prohibitions. (1) No owner or operator of a NOX 
Budget unit or a non-NOX Budget unit monitored under Sec. 
75.72(b)(2)(ii) shall use any alternative monitoring system, alternative 
reference method, or any other alternative for the required continuous 
emission monitoring system without having obtained prior written 
approval in accordance with Sec. 96.75.
    (2) No owner or operator of a NOX Budget unit or a non-
NOX Budget unit monitored under Sec. 75.72(b)(2)(ii) shall 
operate the unit so as to discharge, or allow to be discharged, 
NOX emissions to the atmosphere without accounting for all 
such emissions in accordance with the applicable provisions of this 
subpart and part 75 of this chapter except as provided for in Sec. 
75.74 of this chapter.
    (3) No owner or operator of a NOX Budget unit or a non-
NOX Budget unit monitored under Sec. 75.72(b)(2)(ii) shall 
disrupt the continuous emission monitoring system, any portion thereof, 
or any other approved emission monitoring method, and thereby avoid 
monitoring and recording NOX mass emissions discharged into 
the atmosphere, except for periods of recertification or periods when 
calibration, quality assurance testing, or maintenance is performed in 
accordance with the applicable provisions of this subpart and part 75 of 
this chapter except as provided for in Sec. 75.74 of this chapter.
    (4) No owner or operator of a NOX Budget unit or a non-
NOX Budget unit monitored under Sec. 75.72(b)(2)(ii) shall 
retire or permanently discontinue use of the continuous emission 
monitoring system, any component thereof, or any other approved emission 
monitoring system under this subpart, except under any one of the 
following circumstances:
    (i) During the period that the unit is covered by a retired unit 
exemption under Sec. 96.5 that is in effect;
    (ii) The owner or operator is monitoring emissions from the unit 
with another certified monitoring system approved, in accordance with 
the applicable provisions of this subpart and part 75 of this chapter, 
by the permitting authority for use at that unit that provides emission 
data for the same pollutant or parameter as the retired or discontinued 
monitoring system; or
    (iii) The NOX authorized account representative submits 
notification of the date of certification testing of a replacement 
monitoring system in accordance with Sec. 96.71(b)(2).



Sec. 96.71  Initial certification and recertification procedures

    (a) The owner or operator of a NOX Budget unit that is 
subject to an Acid Rain emissions limitation shall comply with the 
initial certification and recertification procedures of part 75 of this 
chapter, except that:
    (1) If, prior to January 1, 1998, the Administrator approved a 
petition under Sec. 75.17(a) or (b) of this chapter for apportioning 
the NOX emission rate measured in a common stack or a 
petition under Sec. 75.66 of this chapter for an alternative to a 
requirement in Sec. 75.17 of this chapter, the NOX 
authorized account representative shall resubmit the petition to the 
Administrator under Sec. 96.75(a) to determine if the approval applies 
under the NOX Budget Trading Program.
    (2) For any additional CEMS required under the common stack 
provisions in Sec. 75.72 of this chapter, or for any NOX 
concentration CEMS used under the provisions of Sec. 75.71(a)(2) of 
this chapter, the owner or operator shall meet the requirements of 
paragraph (b) of this section.
    (b) The owner or operator of a NOX Budget unit that is 
not subject to an Acid Rain emissions limitation shall comply with the 
following initial certification and recertification procedures, except 
that the owner or operator of a unit that qualifies to use the low mass 
emissions excepted monitoring methodology under Sec. 75.19 shall also 
meet the requirements of paragraph (c) of this section and the owner or 
operator of a unit that qualifies to use an alternative monitoring 
system under subpart E of part 75 of this chapter shall also meet the 
requirements of paragraph (d) of this section. The

[[Page 723]]

owner or operator of a NOX Budget unit that is subject to an 
Acid Rain emissions limitation, but requires additional CEMS under the 
common stack provisions in Sec. 75.72 of this chapter, or that uses a 
NOX concentration CEMS under Sec. 75.71(a)(2) of this 
chapter also shall comply with the following initial certification and 
recertification procedures.
    (1) Requirements for initial certification. The owner or operator 
shall ensure that each monitoring system required by subpart H of part 
75 of this chapter (which includes the automated data acquisition and 
handling system) successfully completes all of the initial certification 
testing required under Sec. 75.20 of this chapter. The owner or 
operator shall ensure that all applicable certification tests are 
successfully completed by the deadlines specified in Sec. 96.70(b). In 
addition, whenever the owner or operator installs a monitoring system in 
order to meet the requirements of this part in a location where no such 
monitoring system was previously installed, initial certification 
according to Sec. 75.20 is required.
    (2) Requirements for recertification. Whenever the owner or operator 
makes a replacement, modification, or change in a certified monitoring 
system that the Administrator or the permitting authority determines 
significantly affects the ability of the system to accurately measure or 
record NOX mass emissions or heat input or to meet the 
requirements of Sec. 75.21 of this chapter or appendix B to part 75 of 
this chapter, the owner or operator shall recertify the monitoring 
system according to 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's operation that the 
Administrator or the permitting authority determines to significantly 
change the flow or concentration profile, the owner or operator shall 
recertify the continuous emissions monitoring system according to Sec. 
75.20(b) of this chapter. Examples of changes which require 
recertification include: replacement of the analyzer, change in location 
or orientation of the sampling probe or site, or changing of flow rate 
monitor polynomial coefficients.
    (3) Certification approval process for initial certifications and 
recertification. (i) Notification of certification. The NOX 
authorized account representative shall submit to the permitting 
authority, the appropriate EPA Regional Office and the permitting 
authority a written notice of the dates of certification in accordance 
with Sec. 96.73.
    (ii) Certification application. The NOX authorized 
account representative shall submit to the permitting authority a 
certification application for each monitoring system required under 
subpart H of part 75 of this chapter. A complete certification 
application shall include the information specified in subpart H of part 
75 of this chapter.
    (iii) Except for units using the low mass emission excepted 
methodology under Sec. 75.19 of this chapter, the provisional 
certification date for a monitor shall be determined using the 
procedures set forth in Sec. 75.20(a)(3) of this chapter. A 
provisionally certified monitor may be used under the NOX 
Budget Trading Program for a period not to exceed 120 days after receipt 
by the permitting authority of the complete certification application 
for the monitoring system or component thereof under paragraph 
(b)(3)(ii) of this section. Data measured and recorded by the 
provisionally certified monitoring system or component thereof, in 
accordance with the requirements of part 75 of this chapter, will be 
considered valid quality-assured data (retroactive to the date and time 
of provisional certification), provided that the permitting authority 
does not invalidate the provisional certification by issuing a notice of 
disapproval within 120 days of receipt of the complete certification 
application by the permitting authority.
    (iv) Certification application formal approval process. The 
permitting authority will issue a written notice of approval or 
disapproval of the certification application to the owner or operator 
within 120 days of receipt of the complete certification application 
under paragraph (b)(3)(ii) of this section. In the event the permitting 
authority does not issue such a notice within such 120-day period, each 
monitoring system which meets the applicable performance requirements of 
part

[[Page 724]]

75 of this chapter and is included in the certification application will 
be deemed certified for use under the NOX Budget Trading 
Program.
    (A) Approval notice. If the certification application is complete 
and shows that each monitoring system meets the applicable performance 
requirements of part 75 of this chapter, then the permitting authority 
will issue a written notice of approval of the certification application 
within 120 days of receipt.
    (B) Incomplete application notice. A certification application will 
be considered complete when all of the applicable information required 
to be submitted under paragraph (b)(3)(ii) of this section has been 
received by the permitting authority. If the certification application 
is not complete, then the permitting authority will issue a written 
notice of incompleteness that sets a reasonable date by which the 
NOX authorized account representative must submit the 
additional information required to complete the certification 
application. If the NOX authorized account representative 
does not comply with the notice of incompleteness by the specified date, 
then the permitting authority may issue a notice of disapproval under 
paragraph (b)(3)(iv)(C) of this section.
    (C) Disapproval notice. If the certification application shows that 
any monitoring system or component thereof does not meet the performance 
requirements of this part, or if the certification application is 
incomplete and the requirement for disapproval under paragraph 
(b)(3)(iv)(B) of this section has been met, the permitting authority 
will issue a written notice of disapproval of the certification 
application. Upon issuance of such notice of disapproval, the 
provisional certification is invalidated by the permitting authority and 
the data measured and recorded by each uncertified monitoring system or 
component thereof shall not be considered valid quality-assured data 
beginning with the date and hour of provisional certification. The owner 
or operator shall follow the procedures for loss of certification in 
paragraph (b)(3)(v) of this section for each monitoring system or 
component thereof which is disapproved for initial certification.
    (D) Audit decertification. The permitting authority may issue a 
notice of disapproval of the certification status of a monitor in 
accordance with Sec. 96.72(b).
    (v) Procedures for loss of certification. If the permitting 
authority issues a notice of disapproval of a certification application 
under paragraph (b)(3)(iv)(C) of this section or a notice of 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 data beginning 
with the date and hour of provisional certification and continuing until 
the time, date, and hour specified under Sec. 75.20(a)(5)(i) of this 
chapter:
    (1) For units using or intending to monitor for NOX 
emission rate and heat input or for units using the low mass emission 
excepted methodology under Sec. 75.19 of this chapter, the maximum 
potential NOX emission rate and the maximum potential hourly 
heat input of the unit.
    (2) For units intending to monitor for NOX mass emissions 
using a NOX pollutant concentration monitor and a flow 
monitor, the maximum potential concentration of NOX and the 
maximum potential flow rate of the unit under section 2.1 of appendix A 
of part 75 of this chapter;
    (B) The NOX authorized account representative shall 
submit a notification of certification retest dates and a new 
certification application in accordance with paragraphs (b)(3)(i) and 
(ii) of this section; and
    (C) The owner or operator shall repeat all certification tests or 
other requirements that were failed by the monitoring system, as 
indicated in the permitting authority's notice of disapproval, no later 
than 30 unit operating days after the date of issuance of the notice of 
disapproval.
    (c) Initial certification and recertification procedures for low 
mass emission units using the excepted methodologies under Sec. 75.19 
of this chapter. The owner or operator of a gas-fired or oil-fired

[[Page 725]]

unit using the low mass emissions excepted methodology under Sec. 75.19 
of this chapter shall meet the applicable general operating requirements 
of Sec. 75.10 of this chapter, the applicable requirements of Sec. 
75.19 of this chapter, and the applicable certification requirements of 
Sec. 96.71 of this chapter, except that the excepted methodology shall 
be deemed provisionally certified for use under the NOX 
Budget Trading Program, as of the following dates:
    (1) For units that are reporting on an annual basis under Sec. 
96.74(d);
    (i) For a unit that has commences operation before its compliance 
deadline under Sec. 96.71(b), from January 1 of the year following 
submission of the certification application for approval to use the low 
mass emissions excepted methodology under Sec. 75.19 of this chapter 
until the completion of the period for the permitting authority review; 
or
    (ii) For a unit that commences operation after its compliance 
deadline under Sec. 96.71(b), the date of submission of the 
certification application for approval to use the low mass emissions 
excepted methodology under Sec. 75.19 of this chapter until the 
completion of the period for permitting authority review, or
    (2) For units that are reporting on a control period basis under 
Sec. 96.74(b)(3)(ii) of this part:
    (i) For a unit that commenced operation before its compliance 
deadline under Sec. 96.71(b), where the certification application is 
submitted before May 1, from May 1 of the year of the submission of the 
certification application for approval to use the low mass emissions 
excepted methodology under Sec. 75.19 of this chapter until the 
completion of the period for the permitting authority review; or
    (ii) For a unit that commenced operation before its compliance 
deadline under Sec. 96.71(b), where the certification application is 
submitted after May 1, from May 1 of the year following submission of 
the certification application for approval to use the low mass emissions 
excepted methodology under Sec. 75.19 of this chapter until the 
completion of the period for the permitting authority review; or
    (iii) For a unit that commences operation after its compliance 
deadline under Sec. 96.71(b), where the unit commences operation before 
May 1, from May 1 of the year that the unit commenced operation, until 
the completion of the period for the permitting authority's review.
    (iv) For a unit that has not operated after its compliance deadline 
under Sec. 96.71(b), where the certification application is submitted 
after May 1, but before October 1st, from the date of submission of a 
certification application for approval to use the low mass emissions 
excepted methodology under Sec. 75.19 of this chapter until the 
completion of the period for the permitting authority's review.
    (d) Certification/recertification procedures for alternative 
monitoring systems. The NOX authorized account representative 
representing the owner or operator of each unit applying to monitor 
using an alternative monitoring system approved by the Administrator 
and, if applicable, the permitting authority under subpart E of part 75 
of this chapter shall apply for certification to the permitting 
authority prior to use of the system under the NOX Trading 
Program. The NOX authorized account representative shall 
apply for recertification following a replacement, modification or 
change according to the procedures in paragraph (b) of this section. The 
owner or operator of an alternative monitoring system shall comply with 
the notification and application requirements for certification 
according to the procedures specified in paragraph (b)(3) of this 
section and Sec. 75.20(f) of this chapter .



Sec. 96.72  Out of control periods.

    (a) Whenever any monitoring system fails to meet the quality 
assurance requirements of appendix B of part 75 of this chapter, data 
shall 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 a monitoring 
system and a review of the initial certification or recertification 
application reveal that any system or component should not have been 
certified or recertified because it did not meet a particular

[[Page 726]]

performance specification or other requirement under Sec. 96.71 or the 
applicable provisions of part 75 of this chapter, both at the time of 
the initial certification or recertification application submission and 
at the time of the audit, the permitting authority will issue a notice 
of disapproval of the certification status of such system or component. 
For the purposes of this paragraph, an audit shall be either a field 
audit or an audit of any information submitted to the permitting 
authority or the Administrator. By issuing the notice of disapproval, 
the permitting authority revokes prospectively the certification status 
of the system or component. The data measured and recorded by the system 
or component shall not be considered valid quality-assured data from the 
date of issuance of the notification of the revoked certification status 
until the date and time that the owner or operator completes 
subsequently approved initial certification or recertification tests. 
The owner or operator shall follow the initial certification or 
recertification procedures in Sec. 96.71 for each disapproved system.



Sec. 96.73  Notifications.

    The NOX authorized account representative for a 
NOX Budget unit shall submit written notice to the permitting 
authority and the Administrator in accordance with Sec. 75.61 of this 
chapter, except that if the unit is not subject to an Acid Rain 
emissions limitation, the notification is only required to be sent to 
the permitting authority.



Sec. 96.74  Recordkeeping and reporting.

    (a) General provisions. (1) The NOX authorized account 
representative shall comply with all recordkeeping and reporting 
requirements in this section and with the requirements of Sec. 
96.10(e).
    (2) If the NOX authorized account representative for a 
NOX Budget unit subject to an Acid Rain Emission limitation 
who signed and certified any submission that is made under subpart F or 
G of part 75 of this chapter and which includes data and information 
required under this subpart or subpart H of part 75 of this chapter is 
not the same person as the designated representative or the alternative 
designated representative for the unit under part 72 of this chapter, 
the submission must also be signed by the designated representative or 
the alternative designated representative.
    (b) Monitoring plans. (1) The owner or operator of a unit subject to 
an Acid Rain emissions limitation shall comply with requirements of 
Sec. 75.62 of this chapter, except that the monitoring plan shall also 
include all of the information required by subpart H of part 75 of this 
chapter.
    (2) The owner or operator of a unit that is not subject to an Acid 
Rain emissions limitation shall comply with requirements of Sec. 75.62 
of this chapter, except that the monitoring plan is only required to 
include the information required by subpart H of part 75 of this 
chapter.
    (c) Certification applications. The NOX authorized 
account representative shall submit an application to the permitting 
authority within 45 days after completing all initial certification or 
recertification tests required under Sec. 96.71 including the 
information required under subpart H of part 75 of this chapter.
    (d) Quarterly reports. The NOX authorized account 
representative shall submit quarterly reports, as follows:
    (1) If a unit is subject to an Acid Rain emission limitation or if 
the owner or operator of the NOX budget unit chooses to meet 
the annual reporting requirements of this subpart H, the NOX 
authorized account representative shall submit a quarterly report for 
each calendar quarter beginning with:
    (i) For units that elect to comply with the early reduction credit 
provisions under Sec. 96.55 of this part, the calender quarter that 
includes the date of initial provisional certification under Sec. 
96.71(b)(3)(iii). Data shall be reported from the date and hour 
corresponding to the date and hour of provisional certification; or
    (ii) For units commencing operation prior to May 1, 2002 that are 
not required to certify monitors by May 1, 2000 under Sec. 96.70(b)(1), 
the earlier of the calender quarter that includes the date of initial 
provisional certification under Sec. 96.71(b)(3)(iii) or, if the 
certification tests are not completed by May 1, 2002, the partial 
calender quarter

[[Page 727]]

from May 1, 2002 through June 30, 2002. Data shall be recorded and 
reported from the earlier of the date and hour corresponding to the date 
and hour of provisional certification or the first hour on May 1, 2002; 
or
    (iii) For a unit that commences operation after May 1, 2002, the 
calendar quarter in which the unit commences operation, Data shall be 
reported from the date and hour corresponding to when the unit commenced 
operation.
    (2) If a NOX budget unit is not subject to an Acid Rain 
emission limitation, then the NOX authorized account 
representative shall either:
    (i) Meet all of the requirements of part 75 related to monitoring 
and reporting NOX mass emissions during the entire year and 
meet the reporting deadlines specified in paragraph (d)(1) of this 
section; or
    (ii) Submit quarterly reports only for the periods from the earlier 
of May 1 or the date and hour that the owner or operator successfully 
completes all of the recertification tests required under Sec. 
75.74(d)(3) through September 30 of each year in accordance with the 
provisions of Sec. 75.74(b) of this chapter. The NOX 
authorized account representative shall submit a quarterly report for 
each calendar quarter, beginning with:
    (A) For units that elect to comply with the early reduction credit 
provisions under Sec. 96.55, the calender quarter that includes the 
date of initial provisional certification under Sec. 96.71(b)(3)(iii). 
Data shall be reported from the date and hour corresponding to the date 
and hour of provisional certification; or
    (B) For units commencing operation prior to May 1, 2002 that are not 
required to certify monitors by May 1, 2000 under Sec. 96.70(b)(1), the 
earlier of the calender quarter that includes the date of initial 
provisional certification under Sec. 96.71(b)(3)(iii), or if the 
certification tests are not completed by May 1, 2002, the partial 
calender quarter from May 1, 2002 through June 30, 2002. Data shall be 
reported from the earlier of the date and hour corresponding to the date 
and hour of provisional certification or the first hour of May 1, 2002; 
or
    (C) For units that commence operation after May 1, 2002 during the 
control period, the calender quarter in which the unit commences 
operation. Data shall be reported from the date and hour corresponding 
to when the unit commenced operation; or
    (D) For units that commence operation after May 1, 2002 and before 
May 1 of the year in which the unit commences operation, the earlier of 
the calender quarter that includes the date of initial provisional 
certification under Sec. 96.71(b)(3)(iii) or, if the certification 
tests are not completed by May 1 of the year in which the unit commences 
operation, May 1 of the year in which the unit commences operation. Data 
shall be reported from the earlier of the date and hour corresponding to 
the date and hour of provisional certification or the first hour of May 
1 of the year after the unit commences operation.
    (E) For units that commence operation after May 1, 2002 and after 
September 30 of the year in which the unit commences operation, the 
earlier of the calender quarter that includes the date of initial 
provisional certification under Sec. 96.71(b)(3)(iii) or, if the 
certification tests are not completed by May 1 of the year after the 
unit commences operation, May 1 of the year after the unit commences 
operation. Data shall be reported from the earlier of the date and hour 
corresponding to the date and hour of provisional certification or the 
first hour of May 1 of the year after the unit commences operation.
    (3) The NOX authorized account representative shall 
submit each quarterly report to the Administrator within 30 days 
following the end of the calendar quarter covered by the report. 
Quarterly reports shall be submitted in the manner specified in subpart 
H of part 75 of this chapter and Sec. 75.64 of this chapter.
    (i) For units subject to an Acid Rain Emissions limitation, 
quarterly reports shall include all of the data and information required 
in subpart H of part 75 of this chapter for each NOX Budget 
unit (or group of units using a common stack) as well as information 
required in subpart G of part 75 of this chapter.
    (ii) For units not subject to an Acid Rain Emissions limitation, 
quarterly reports are only required to include all of the data and 
information required in

[[Page 728]]

subpart H of part 75 of this chapter for each NOX Budget unit 
(or group of units using a common stack).
    (4) Compliance certification. The NOX authorized account 
representative shall submit to the Administrator a compliance 
certification in support of each quarterly report based on reasonable 
inquiry of those persons with primary responsibility for ensuring that 
all of the unit's emissions are correctly and fully monitored. The 
certification shall state that:
    (i) The monitoring data submitted were recorded in accordance with 
the applicable requirements of this subpart and part 75 of this chapter, 
including the quality assurance procedures and specifications; and
    (ii) For a unit with add-on NOX emission controls and for 
all hours where data are substituted in accordance with Sec. 
75.34(a)(1) of this chapter, the add-on emission controls were operating 
within the range of parameters listed in the monitoring plan and the 
substitute values do not systematically underestimate NOX 
emissions; and
    (iii) For a unit that is reporting on a control period basis under 
Sec. 96.74(d) the NOX emission rate and NOX 
concentration values substituted for missing data under subpart D of 
part 75 of this chapter are calculated using only values from a control 
period and do not systematically underestimate NOX emissions.



Sec. 96.75  Petitions.

    (a) The NOX authorized account representative of a 
NOX Budget unit that is subject to an Acid Rain emissions 
limitation may submit a petition under Sec. 75.66 of this chapter to 
the Administrator requesting approval to apply an alternative to any 
requirement of this subpart.
    (1) Application of an alternative to any requirement of this subpart 
is in accordance with this subpart only to the extent that the petition 
is approved by the Administrator, in consultation with the permitting 
authority.
    (2) Notwithstanding paragraph (a)(1) of this section, if the 
petition requests approval to apply an alternative to a requirement 
concerning any additional CEMS required under the common stack 
provisions of Sec. 75.72 of this chapter, the petition is governed by 
paragraph (b) of this section.
    (b) The NOX authorized account representative of a 
NOX Budget unit that is not subject to an Acid Rain emissions 
limitation may submit a petition under Sec. 75.66 of this chapter to 
the permitting authority and the Administrator requesting approval to 
apply an alternative to any requirement of this subpart.
    (1) The NOX authorized account representative of a 
NOX Budget unit that is subject to an Acid Rain emissions 
limitation may submit a petition under Sec. 75.66 of this chapter to 
the permitting authority and the Administrator requesting approval to 
apply an alternative to a requirement concerning any additional CEMS 
required under the common stack provisions of Sec. 75.72 of this 
chapter or a NOX concentration CEMS used under 75.71(a)(2) of 
this chapter.
    (2) Application of an alternative to any requirement of this subpart 
is in accordance with this subpart only to the extent the petition under 
paragraph (b) of this section is approved by both the permitting 
authority and the Administrator.



Sec. 96.76  Additional requirements to provide heat input data for allocations 

purposes.

    (a) The owner or operator of a unit that elects to monitor and 
report NOX Mass emissions using a NOX 
concentration system and a flow system shall also monitor and report 
heat input at the unit level using the procedures set forth in part 75 
of this chapter for any source located in a state developing source 
allocations based upon heat input.
    (b) The owner or operator of a unit that monitor and report 
NOX Mass emissions using a NOX concentration 
system and a flow system shall also monitor and report heat input at the 
unit level using the procedures set forth in part 75 of this chapter for 
any source that is applying for early reduction credits under Sec. 
96.55.

[[Page 729]]



                    Subpart I_Individual Unit Opt-ins



Sec. 96.80  Applicability.

    A unit that is in the State, is not a NOX Budget unit 
under Sec. 96.4, vents all of its emissions to a stack, and is 
operating, may qualify, under this subpart, to become a NOX 
Budget opt-in source. A unit that is a NOX Budget unit, is 
covered by a retired unit exemption under Sec. 96.5 that is in effect, 
or is not operating is not eligible to become a NOX Budget 
opt-in source.



Sec. 96.81  General.

    Except otherwise as provided in this part, a NOX Budget 
opt-in source shall be treated as a NOX Budget unit for 
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 a NOX 
Budget opt-in source, located at the same source as one or more 
NOX Budget units, shall have the same NOX 
authorized account representative as such NOX Budget units.



Sec. 96.83  Applying for NOX Budget opt-in permit.

    (a) Applying for initial NOX Budget opt-in permit. In 
order to apply for an initial NOX Budget opt-in permit, the 
NOX authorized account representative of a unit qualified 
under Sec. 96.80 may submit to the permitting authority at any time, 
except as provided under Sec. 96.86(g):
    (1) A complete NOX Budget permit application under Sec. 
96.22;
    (2) A monitoring plan submitted in accordance with subpart H of this 
part; and
    (3) A complete account certificate of representation under Sec. 
96.13, if no NOX authorized account representative has been 
previously designated for the unit.
    (b) Duty to reapply. The NOX authorized account 
representative of a NOX Budget opt-in source shall submit a 
complete NOX Budget permit application under Sec. 96.22 to 
renew the NOX Budget opt-in permit in accordance with Sec. 
96.21(c) and, if applicable, an updated monitoring plan in accordance 
with subpart H of this part.



Sec. 96.84  Opt-in process.

    The permitting authority will issue or deny a NOX Budget 
opt-in permit for a unit for which an initial application for a 
NOX Budget opt-in permit under Sec. 96.83 is submitted, in 
accordance with Sec. 96.20 and the following:
    (a) Interim review of monitoring plan. The permitting authority will 
determine, on an interim basis, the sufficiency of the monitoring plan 
accompanying the initial application for a NOX Budget opt-in 
permit under Sec. 96.83. A monitoring plan is sufficient, for purposes 
of interim review, if the plan appears to contain information 
demonstrating that the NOX emissions rate and heat input of 
the unit are monitored and reported in accordance with subpart H of this 
part. A determination of sufficiency shall not be construed as 
acceptance or approval of the unit's monitoring plan.
    (b) If the permitting authority determines that the unit's 
monitoring plan is sufficient under paragraph (a) of this section and 
after completion of monitoring system certification under subpart H of 
this part, the NOX emissions rate and the heat input of the 
unit shall be monitored and reported in accordance with subpart H of 
this part for one full control period during which monitoring system 
availability is not less than 90 percent and during which the unit is in 
full compliance with any applicable State or Federal emissions or 
emissions-related requirements. Solely for purposes of applying the 
requirements in the prior sentence, the unit shall be treated as a 
``NOX Budget unit'' prior to issuance of a NOX 
Budget opt-in permit covering the unit.
    (c) Based on the information monitored and reported under paragraph 
(b) of this section, the unit's baseline heat rate shall be calculated 
as the unit's total heat input (in mmBtu) for the control period and the 
unit's baseline NOX emissions rate shall be calculated as the 
unit's total NOX emissions (in lb) for the control period 
divided by the unit's baseline heat rate.
    (d) After calculating the baseline heat input and the baseline 
NOX emissions rate for the unit under paragraph

[[Page 730]]

(c) of this section, the permitting authority will serve a draft 
NOX Budget opt-in permit on the NOX authorized 
account representative of the unit.
    (e) Confirmation of intention to opt-in. Within 20 days after the 
issuance of the draft NOX Budget opt-in permit, the 
NOX authorized account representative of the unit must submit 
to the permitting authority a confirmation of the intention to opt in 
the unit or a withdrawal of the application for a NOX Budget 
opt-in permit under Sec. 96.83. The permitting authority will treat the 
failure to make a timely submission as a withdrawal of the 
NOX Budget opt-in permit application.
    (f) Issuance of draft NOX Budget opt-in permit. If the 
NOX authorized account representative confirms the intention 
to opt-in the unit under paragraph (e) of this section, the permitting 
authority will issue the draft NOX Budget opt-in permit in 
accordance with Sec. 96.20.
    (g) Notwithstanding paragraphs (a) through (f) of this section, if 
at any time before issuance of a draft NOX Budget opt-in 
permit for the unit, the permitting authority determines that the unit 
does not qualify as a NOX Budget opt-in source under Sec. 
96.80, the permitting authority will issue a draft denial of a 
NOX Budget opt-in permit for the unit in accordance with 
Sec. 96.20.
    (h) Withdrawal of application for NOX Budget opt-in 
permit. A NOX authorized account representative of a unit may 
withdraw its application for a NOX Budget opt-in permit under 
Sec. 96.83 at any time prior to the issuance of the final 
NOX Budget opt-in permit. Once the application for a 
NOX Budget opt-in permit is withdrawn, a NOX 
authorized account representative wanting to reapply must submit a new 
application for a NOX Budget permit under Sec. 96.83.
    (i) Effective date. The effective date of the initial NOX 
Budget opt-in permit shall be May 1 of the first control period starting 
after the issuance of the initial NOX Budget opt-in permit by 
the permitting authority. The unit shall be a NOX Budget opt-
in source and a NOX Budget unit as of the effective date of 
the initial NOX Budget opt-in permit.



Sec. 96.85  NOX Budget opt-in permit contents.

    (a) Each NOX Budget opt-in permit (including any draft or 
proposed NOX Budget opt-in permit, if applicable) will 
contain all elements required for a complete NOX Budget opt-
in permit application under Sec. 96.22 as approved or adjusted by the 
permitting authority.
    (b) Each NOX Budget opt-in permit is deemed to 
incorporate automatically the definitions of terms under Sec. 96.2 and, 
upon recordation by the Administrator under subpart F, G, or I of this 
part, every allocation, transfer, or deduction of NOX 
allowances to or from the compliance accounts of each NOX 
Budget opt-in source covered by the NOX Budget opt-in permit 
or the overdraft account of the NOX Budget source where the 
NOX Budget opt-in source is located.



Sec. 96.86  Withdrawal from NOX Budget Trading Program.

    (a) Requesting withdrawal. To withdraw from the NOX 
Budget Trading Program, the NOX authorized account 
representative of a NOX Budget opt-in source shall submit to 
the permitting authority a request to withdraw effective as of a 
specified date prior to May 1 or after September 30. The submission 
shall be made no later than 90 days prior to the requested effective 
date of withdrawal.
    (b) Conditions for withdrawal. Before a NOX Budget opt-in 
source covered by a request under paragraph (a) of this section may 
withdraw from the NOX Budget Trading Program and the 
NOX Budget opt-in permit may be terminated under paragraph 
(e) of this section, the following conditions must be met:
    (1) For the control period immediately before the withdrawal is to 
be effective, the NOX authorized account representative must 
submit or must have submitted to the permitting authority an annual 
compliance certification report in accordance with Sec. 96.30.
    (2) If the NOX Budget opt-in source has excess emissions 
for the control period immediately before the withdrawal is to be 
effective, the Administrator will deduct or has deducted from the 
NOX Budget opt-in source's compliance account, or the 
overdraft account of the NOX Budget source where the

[[Page 731]]

NOX Budget opt-in source is located, the full amount required 
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 from the 
NOX Budget opt-in source's compliance account, or the 
overdraft account of the NOX Budget source where the 
NOX Budget opt-in source is located, NOX 
allowances equal in number to and allocated for the same or a prior 
control period as any NOX allowances allocated to that source 
under Sec. 96.88 for any control period for which the withdrawal is to 
be effective. The Administrator will close the NOX Budget 
opt-in source's compliance account and will establish, and transfer any 
remaining allowances to, a new general account for the owners and 
operators of the NOX Budget opt-in source. The NOX 
authorized account representative for the NOX Budget opt-in 
source shall become the NOX authorized account representative 
for the general account.
    (c) A NOX Budget opt-in source that withdraws from the 
NOX Budget Trading Program shall comply with all requirements 
under the NOX Budget Trading Program concerning all years for 
which such NOX Budget opt-in source was a NOX 
Budget opt-in source, even if such requirements arise or must be 
complied with after the withdrawal takes effect.
    (d) Notification. (1) After the requirements for withdrawal under 
paragraphs (a) and (b) of this section are met (including deduction of 
the full amount of NOX allowances required), the permitting 
authority will issue a notification to the NOX authorized 
account representative of the NOX Budget opt-in source of the 
acceptance of the withdrawal of the NOX Budget opt-in source 
as of a specified effective date that is after such requirements have 
been met and 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 a 
notification to the NOX authorized account representative of 
the NOX Budget opt-in source that the NOX Budget 
opt-in source's request to withdraw is denied. If the NOX 
Budget opt-in source's request to withdraw is denied, the NOX 
Budget opt-in source shall remain subject to the requirements for a 
NOX Budget opt-in source.
    (e) Permit amendment. After the permitting authority issues a 
notification under paragraph (d)(1) of this section that the 
requirements for withdrawal have been met, the permitting authority will 
revise the NOX Budget permit covering the NOX 
Budget opt-in source to terminate the NOX Budget opt-in 
permit as of the effective date specified under paragraph (d)(1) of this 
section. A NOX Budget opt-in source shall continue to be a 
NOX Budget opt-in source until the effective date of the 
termination.
    (f) Reapplication upon failure to meet conditions of withdrawal. If 
the permitting authority denies the NOX Budget opt-in 
source's request to withdraw, the NOX authorized account 
representative may submit another request to withdraw in accordance with 
paragraphs (a) and (b) of this section.
    (g) Ability to return to the NOX Budget Trading Program. 
Once a NOX Budget opt-in source withdraws from the 
NOX Budget Trading Program and its NOX Budget opt-
in permit is terminated under this section, the NOX authority 
account representative may not submit another application for a 
NOX Budget opt-in permit under Sec. 96.83 for the unit prior 
to the date that is 4 years after the date on which the terminated 
NOX Budget opt-in permit became effective.



Sec. 96.87  Change in regulatory status.

    (a) Notification. When a NOX Budget opt-in source becomes 
a NOX Budget unit under Sec. 96.4, the NOX 
authorized account representative shall notify in writing the permitting 
authority and the Administrator of such change in the NOX 
Budget opt-in source'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 a NOX Budget 
unit under Sec. 96.4, the permitting authority will revise the 
NOX Budget opt-in source's NOX Budget opt-in 
permit to meet the requirements of a NOX Budget permit under 
Sec. 96.23 as of an effective date that is the date on which

[[Page 732]]

such NOX Budget opt-in source becomes a NOX Budget 
unit under Sec. 96.4.
    (ii)(A) The Administrator will deduct from the compliance account 
for the NOX Budget unit under paragraph (b)(1)(i) of this 
section, or the overdraft account of the NOX Budget source 
where the unit is located, NOX allowances equal in number to 
and allocated for the same or a prior control period as:
    (1) Any NOX allowances allocated to the NOX 
Budget unit (as a NOX Budget opt-in source) under Sec. 96.88 
for any control period after the last control period during which the 
unit's NOX Budget opt-in permit was effective; and
    (2) If the effective date of the NOX Budget permit 
revision under paragraph (b)(1)(i) of this section is during a control 
period, the NOX allowances allocated to the NOX 
Budget unit (as a NOX Budget opt-in source) under Sec. 96.88 
for the control period multiplied by the ratio of the number of days, in 
the control period, starting with the effective date of the permit 
revision under paragraph (b)(1)(i) of this section, divided by the total 
number of days in the control period.
    (B) The NOX authorized account representative shall 
ensure that the compliance account of the NOX Budget unit 
under paragraph (b)(1)(i) of this section, or the overdraft account of 
the NOX Budget source where the unit is located, includes the 
NOX allowances necessary for completion of the deduction 
under paragraph (b)(1)(ii)(A) of this section. If the compliance account 
or overdraft account does not contain sufficient NOX 
allowances, the Administrator will deduct the required number of 
NOX allowances, regardless of the control period for which 
they were allocated, whenever NOX allowances are recorded in 
either account.
    (iii)(A) For every control period during which the NOX 
Budget permit revised under paragraph (b)(1)(i) of this section is 
effective, the NOX Budget unit under paragraph (b)(1)(i) of 
this section will be treated, solely for purposes of NOX 
allowance allocations under Sec. 96.42, as a unit that commenced 
operation on the effective date of the NOX Budget permit 
revision under paragraph (b)(1)(i) of this section and will be allocated 
NOX allowances under Sec. 96.42.
    (B) Notwithstanding paragraph (b)(1)(iii)(A) of this section, if the 
effective date of the NOX Budget permit revision under 
paragraph (b)(1)(i) of this section is during a control period, the 
following number of NOX allowances will be allocated to the 
NOX Budget unit under paragraph (b)(1)(i) of this section 
under Sec. 96.42 for the control period: the number of NOX 
allowances otherwise allocated to the NOX Budget unit under 
Sec. 96.42 for the control period multiplied by the ratio of the number 
of days, in the control period, starting with the effective date of the 
permit revision under paragraph (b)(1)(i) of this section, divided by 
the total number of days in the control period.
    (2)(i) When the NOX authorized account representative of 
a NOX Budget opt-in source does not renew its NOX 
Budget opt-in permit under Sec. 96.83(b), the Administrator will deduct 
from the NOX Budget opt-in unit's compliance account, or the 
overdraft account of the NOX Budget source where the 
NOX Budget opt-in source is located, NOX 
allowances equal in number to and allocated for the same or a prior 
control period as any NOX allowances allocated to the 
NOX Budget opt-in source under Sec. 96.88 for any control 
period after the last control period for which the NOX Budget 
opt-in permit is effective. The NOX authorized account 
representative shall ensure that the NOX Budget opt-in 
source's compliance account or the overdraft account of the 
NOX Budget source where the NOX Budget opt-in 
source is located includes the NOX allowances necessary for 
completion of such deduction. If the compliance account or overdraft 
account does not contain sufficient NOX allowances, the 
Administrator will deduct the required number of NOX 
allowances, regardless of the control period for which they were 
allocated, whenever NOX allowances are recorded in either 
account.
    (ii) After the deduction under paragraph (b)(2)(i) of this section 
is completed, the Administrator will close the NOX Budget 
opt-in source's compliance account. If any NOX allowances 
remain

[[Page 733]]

in the compliance account after completion of such deduction and any 
deduction under Sec. 96.54, the Administrator will close the 
NOX Budget opt-in source's compliance account and will 
establish, and transfer any remaining allowances to, a new general 
account for the owners and operators of the NOX Budget opt-in 
source. The NOX authorized account representative for the 
NOX Budget opt-in source shall become the NOX 
authorized account representative for the general account.



Sec. 96.88  NOX allowance allocations to opt-in units.

    (a) NOX allowance allocation. (1) By December 31 
immediately before the first control period for which the NOX 
Budget opt-in permit is effective, the permitting authority will 
allocate NOX allowances to the NOX Budget opt-in 
source and submit to the Administrator the allocation for the control 
period in accordance with paragraph (b) of this section.
    (2) By no later than December 31, after the first control period for 
which the NOX Budget opt-in permit is in effect, and December 
31 of each year thereafter, the permitting authority will allocate 
NOX allowances to the NOX Budget opt-in source, 
and submit to the Administrator allocations for the next control period, 
in accordance with paragraph (b) of this section.
    (b) For each control period for which the NOX Budget opt-
in source has an approved NOX Budget opt-in permit, the 
NOX Budget opt-in source will be allocated NOX 
allowances in accordance with the following procedures:
    (1) The heat input (in mmBtu) used for calculating NOX 
allowance allocations will be the lesser of:
    (i) The NOX Budget opt-in source's baseline heat input 
determined pursuant to Sec. 96.84(c); or
    (ii) The NOX Budget opt-in source's heat input, as 
determined in accordance with subpart H of this part, for the control 
period in the year prior to the year of the control period for which the 
NOX allocations are being calculated.
    (2) The permitting authority will allocate NOX allowances 
to the NOX Budget opt-in source in an amount equaling 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 baseline 
NOX emissions rate (in lb/mmBtu) determined pursuant to Sec. 
96.84(c); or
    (ii) The most stringent State or Federal NOX emissions 
limitation applicable to the NOX Budget opt-in source during 
the control period.

Subpart J--Mobile and Area Sources [Reserved]

Subparts K--Z [Reserved]



      Subpart AA_CAIR NOX Annual Trading Program General Provisions

    Source: 70 FR 25339, May 12, 2005, unless otherwise noted.



Sec. 96.101  Purpose.

    This subpart and subparts BB through II establish the model rule 
comprising general provisions and the designated representative, 
permitting, allowance, monitoring, and opt-in provisions for the State 
Clean Air Interstate Rule (CAIR) NOX Annual Trading Program, 
under section 110 of the Clean Air Act and Sec. 51.123 of this chapter, 
as a means of mitigating interstate transport of fine particulates and 
nitrogen oxides. The owner or operator of a unit or a source shall 
comply with the requirements of this subpart and subparts BB through II 
as a matter of federal law only if the State with jurisdiction over the 
unit and the source incorporates by reference such subparts or otherwise 
adopts the requirements of such subparts in accordance with Sec. 
51.123(o)(1) or (2) of this chapter, the State submits to the 
Administrator one or more revisions of the State implementation plan 
that include such adoption, and the Administrator approves such 
revisions. If the State adopts the requirements of such subparts in 
accordance with Sec. 51.123(o)(1) or (2) of this chapter, then the 
State authorizes the Administrator to assist the State in implementing 
the CAIR NOX Annual Trading Program by carrying out the 
functions set forth for the Administrator in such subparts.

[[Page 734]]



Sec. 96.102  Definitions.

    The terms used in this subpart and subparts BB through II shall have 
the meanings set forth in this section as follows:
    Account number means the identification number given by the 
Administrator to each CAIR NOX Allowance Tracking System 
account.
    Acid Rain emissions limitation means a limitation on emissions of 
sulfur dioxide or nitrogen oxides under the Acid Rain Program.
    Acid Rain Program means a multi-state sulfur dioxide and nitrogen 
oxides air pollution control and emission reduction program established 
by the Administrator under title IV of the CAA and parts 72 through 78 
of this chapter.
    Administrator means the Administrator of the United States 
Environmental Protection Agency or the Administrator's duly authorized 
representative.
    Allocate or allocation means, with regard to CAIR NOX 
allowances, the determination by a permitting authority or the 
Administrator of the amount of such CAIR NOX allowances to be 
initially credited to a CAIR NOX 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 the first business day 
thereafter (if March 1 is not a business day), immediately following the 
control period and is the deadline by which a CAIR NOX 
allowance transfer must be submitted for recordation in a CAIR 
NOX source's compliance account in order to be used to meet 
the source's CAIR NOX emissions limitation for such control 
period in accordance with Sec. 96.154.
    Alternate CAIR designated representative means, for a CAIR 
NOX source and each CAIR NOX unit at the source, 
the natural person who is authorized by the owners and operators of the 
source and all such units at the source, in accordance with subparts BB 
and II of this part, to act on behalf of the CAIR designated 
representative in matters pertaining to the CAIR NOX Annual 
Trading Program. If the CAIR NOX source is also a CAIR 
SO2 source, then this natural person shall be the same person 
as the alternate CAIR designated representative under the CAIR 
SO2 Trading Program. If the CAIR NOX source is 
also a CAIR NOX Ozone Season source, then this natural person 
shall be the same person as the alternate CAIR designated representative 
under the CAIR NOX Ozone Season Trading Program. If the CAIR 
NOX source is also subject to the Acid Rain Program, then 
this natural person shall be the same person as the alternate designated 
representative under the Acid Rain Program. If the CAIR NOX 
source is also subject to the Hg Budget Trading Program, then this 
natural person shall be the same person as the alternate Hg designated 
representative under the Hg Budget Trading Program.
    Automated data acquisition and handling system or DAHS means that 
component of the continuous emission monitoring system, or other 
emissions monitoring system approved for use under subpart HH of this 
part, designed to interpret and convert individual output signals from 
pollutant concentration monitors, flow monitors, diluent gas monitors, 
and other component parts of the monitoring system to produce a 
continuous record of the measured parameters in the measurement units 
required by subpart HH of this part.
    Biomass means--
    (1) Any organic material grown for the purpose of being converted to 
energy;
    (2) Any organic byproduct of agriculture that can be converted into 
energy; or
    (3) Any material that can be converted into energy and is 
nonmerchantable for other purposes, that is segregated from other 
nonmerchantable material, and that is;
    (i) A forest-related organic resource, including mill residues, 
precommercial thinnings, slash, brush, or byproduct from conversion 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-fired combustion 
device used to produce heat and to transfer heat to

[[Page 735]]

recirculating water, steam, or other medium.
    Bottoming-cycle cogeneration unit means a cogeneration unit in which 
the energy input to the unit is first used to produce useful thermal 
energy and at least some of the reject heat from the useful thermal 
energy application or process is then used for electricity production.
    CAIR authorized account representative means, with regard to a 
general account, a responsible natural person who is authorized, in 
accordance with subparts BB, FF, and II of this part, to transfer and 
otherwise dispose of CAIR NOX allowances held in the general 
account and, with regard to a compliance account, the CAIR designated 
representative of the source.
    CAIR designated representative means, for a CAIR NOX 
source and each CAIR NOX unit at the source, the natural 
person who is authorized by the owners and operators of the source and 
all such units at the source, in accordance with subparts BB and II of 
this part, to represent and legally bind each owner and operator in 
matters pertaining to the CAIR NOX Annual Trading Program. If 
the CAIR NOX source is also a CAIR SO2 source, 
then this natural person shall be the same person as the CAIR designated 
representative under the CAIR SO2 Trading Program. If the 
CAIR NOX source is also a CAIR NOX Ozone Season 
source, then this natural person shall be the same person as the CAIR 
designated representative under the CAIR NOX Ozone Season 
Trading Program. If the CAIR NOX source is also subject to 
the Acid Rain Program, then this natural person shall be the same person 
as the designated representative under the Acid Rain Program. If the 
CAIR NOX source is also subject to the Hg Budget Trading 
Program, then this natural person shall be the same person as the Hg 
designated representative under the Hg Budget Trading Program.
    CAIR NOX allowance means a limited authorization issued by a 
permitting authority or the Administrator under provisions of a State 
implementation plan that are approved under Sec. 51.123(o)(1) or (2) or 
(p) of this chapter, or under subpart EE of part 97 or Sec. 97.188 of 
this chapter, to emit one ton of nitrogen oxides during a control period 
of the specified calendar year for which the authorization is allocated 
or of any calendar year thereafter under the CAIR NOX 
Program. An authorization to emit nitrogen oxides that is not issued 
under provisions of a State implementation plan that are approved under 
Sec. 51.123(o)(1) or (2) or (p) of this chapter or subpart EE of part 
97 or Sec. 97.188 of this chapter shall not be a CAIR NOX 
allowance.
    CAIR NOX allowance deduction or deduct CAIR NOX allowances means the 
permanent withdrawal of CAIR NOX allowances by the 
Administrator from a compliance account, e.g., in order to account for a 
specified number of tons of total nitrogen oxides emissions from all 
CAIR NOX units at a CAIR NOX source for a control 
period, determined in accordance with subpart HH of this part, or to 
account for excess emissions.
    CAIR NOX Allowance Tracking System means the system by 
which the Administrator records allocations, deductions, and transfers 
of CAIR NOX allowances under the CAIR NOX Annual 
Trading Program. Such allowances will be allocated, held, deducted, or 
transferred only as whole allowances.
    CAIR NOX Allowance Tracking System account means an 
account in the CAIR NOX Allowance Tracking System established 
by the Administrator for purposes of recording the allocation, holding, 
transferring, or deducting of CAIR NOX allowances.
    CAIR NOX allowances held or hold CAIR NOX 
allowances means the CAIR NOX allowances recorded by the 
Administrator, or submitted to the Administrator for recordation, in 
accordance with subparts FF, GG, and II of this part, in a CAIR 
NOX Allowance Tracking System account.
    CAIR NOX Annual Trading Program means a multi-state 
nitrogen oxides air pollution control and emission reduction program 
approved and administered by the Administrator in accordance with 
subparts AA through II of this part and Sec. 51.123(o)(1) or (2) of 
this chapter or established by the Administrator in accordance with 
subparts AA through II of part 97 of this chapter and Sec. Sec. 
51.123(p) and 52.35 of this chapter, as

[[Page 736]]

a means of mitigating interstate transport of fine particulates and 
nitrogen oxides.
    CAIR NOX emissions limitation means, for a CAIR 
NOX source, the tonnage equivalent, in NOX 
emissions in a control period, of the CAIR NOX allowances 
available for deduction for the source under Sec. 96.154(a) and (b) for 
the control period.
    CAIR NOX Ozone Season source means a source that is 
subject to the CAIR NOX Ozone Season Trading Program.
    CAIR NOX Ozone Season Trading Program means a multi-state 
nitrogen oxides air pollution control and emission reduction program 
approved and administered by the Administrator in accordance with 
subparts AAAA through IIII of this part and Sec. 51.123(aa)(1) or (2) 
(and (bb)(1)), (bb)(2), or (dd) of this chapter or established by the 
Administrator in accordance with subparts AAAA through IIII of part 97 
of this chapter and Sec. Sec. 51.123(ee) and 52.35 of this chapter, as 
a means of mitigating interstate transport of ozone and nitrogen oxides.
    CAIR NOX source means a source that includes one or more 
CAIR NOX units.
    CAIR NOX unit means a unit that is subject to the CAIR 
NOX Annual Trading Program under Sec. 96.104 and, except for 
purposes of Sec. 96.105 and subpart EE of this part, a CAIR 
NOX opt-in unit under subpart II of this part.
    CAIR permit means the legally binding and federally enforceable 
written document, or portion of such document, issued by the permitting 
authority under subpart CC of this part, including any permit revisions, 
specifying the CAIR NOX Annual Trading Program requirements 
applicable to a CAIR NOX source, to each CAIR NOX 
unit at the source, and to the owners and operators and the CAIR 
designated representative of the source and each such unit.
    CAIR SO2 source means a source that is subject to the 
CAIR SO2 Trading Program.
    CAIR SO2 Trading Program means a multi-state sulfur 
dioxide air pollution control and emission reduction program approved 
and administered by the Administrator in accordance with subparts AAA 
through III of this part and Sec. 51.124(o)(1) or (2) of this chapter 
or established by the Administrator in accordance with subparts AAA 
through III of part 97 of this chapter and Sec. Sec. 51.124(r) and 
52.36 of this chapter, as a means of mitigating interstate transport of 
fine particulates and sulfur dioxide.
    Clean Air Act or CAA means the Clean Air Act, 42 U.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, or chemical 
processing of coal.
    Coal-fired means:
    (1) Except for purposes of subpart EE of this part, combusting any 
amount of coal or coal-derived fuel, alone or in combination with any 
amount of any other fuel, during any year; or
    (2) For purposes of subpart EE of this part, combusting any amount 
of coal or coal-derived fuel, alone or in combination with any amount of 
any other fuel, during a specified year.
    Cogeneration unit means a stationary, fossil-fuel-fired boiler or 
stationary, fossil-fuel-fired combustion turbine:
    (1) Having equipment used to produce electricity and useful thermal 
energy for industrial, commercial, heating, or cooling purposes through 
the sequential use of energy; and
    (2) Producing during the 12-month period starting on the date the 
unit first produces electricity and during any calendar year after the 
calendar 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 energy 
output; and
    (B) Useful power that, when added to one-half of useful thermal 
energy produced, is not less then 42.5 percent of total energy input, if 
useful thermal energy produced is 15 percent or more of total energy 
output, or not less than 45 percent of total energy input, if useful 
thermal energy produced is less than 15 percent of total energy output.
    (ii) For a bottoming-cycle cogeneration unit, useful power not less 
than 45 percent of total energy input;

[[Page 737]]

    (3) Provided that the total energy input under paragraphs (2)(i)(B) 
and (2)(ii) of this definition shall equal the unit's total energy input 
from all fuel except biomass if the unit is a boiler.
    Combustion turbine means:
    (1) An enclosed device comprising a compressor, a combustor, and a 
turbine and in which the flue gas resulting from the combustion of fuel 
in the combustor passes through the turbine, rotating the turbine; and
    (2) If the enclosed device under paragraph (1) of this definition is 
combined cycle, any associated duct burner, heat recovery steam 
generator, and steam turbine.
    Commence commercial operation means, with regard to a unit:
    (1) To have begun to produce steam, gas, or other heated medium used 
to generate electricity for sale or use, including test generation, 
except as provided in Sec. 96.105 and Sec. 96.184(h).
    (i) For a unit that is a CAIR NOX unit under Sec. 96.104 
on the later of November 15, 1990 or the date the unit commences 
commercial operation as defined in paragraph (1) of this 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 commercial operation of the unit, which shall 
continue to be treated as the same unit.
    (ii) For a unit that is a CAIR NOX unit under Sec. 
96.104 on the later of November 15, 1990 or the date the unit commences 
commercial operation as defined in paragraph (1) of this definition and 
that is subsequently replaced by a unit at the same source (e.g., 
repowered), such date shall remain the replaced unit's date of 
commencement of commercial operation, and the replacement unit shall be 
treated as a separate unit with a separate date 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 as 
provided in Sec. 96.105, for a unit that is not a CAIR NOX 
unit under Sec. 96.104 on the later of November 15, 1990 or the date 
the unit commences commercial operation as defined in paragraph (1) of 
this definition, the unit's date for commencement of commercial 
operation shall be the date on which the unit becomes a CAIR 
NOX unit under Sec. 96.104.
    (i) For a unit with a date for commencement of commercial operation 
as defined in paragraph (2) of this 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 commercial operation of the unit, which shall continue 
to be treated as the same unit.
    (ii) For a unit with a date for commencement of commercial operation 
as defined in paragraph (2) of this definition and that is subsequently 
replaced by a unit at the same source (e.g., repowered), such date shall 
remain the replaced unit's date of commencement of commercial operation, 
and the replacement unit shall be treated as a separate unit with a 
separate date for commencement 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 combustion 
chamber, except as provided in Sec. 96.184(h).
    (2) For a unit that undergoes a physical change (other than 
replacement of the unit by a unit at the same source) after the date the 
unit commences operation as defined in paragraph (1) of this definition, 
such date shall remain the date of commencement of operation of the 
unit, which shall continue to be treated as the same unit.
    (3) For a unit that is replaced by a unit at the same source (e.g., 
repowered) after the date the unit commences operation as defined in 
paragraph (1) of this definition, such date shall remain the replaced 
unit's date of commencement of operation, and the replacement unit shall 
be treated as a separate unit with a separate date for commencement of 
operation as defined in paragraph (1), (2), or (3) of this definition as 
appropriate, except as provided in Sec. 96.184(h).
    Compliance account means a CAIR NOX Allowance Tracking 
System account, established by the Administrator for a CAIR 
NOX source under subpart FF or II of this part, in which

[[Page 738]]

any CAIR NOX allowance allocations for the CAIR 
NOX units at the source are initially recorded and in which 
are held any CAIR NOX allowances available for use for a 
control period in order to meet the source's CAIR NOX 
emissions limitation in accordance with Sec. 96.154.
    Continuous emission monitoring system or CEMS means the equipment 
required under subpart HH of this part to sample, analyze, measure, and 
provide, by means of readings recorded at least once every 15 minutes 
(using an automated data acquisition and handling system (DAHS)), a 
permanent record of nitrogen oxides emissions, stack gas volumetric flow 
rate, stack gas moisture content, and oxygen or carbon dioxide 
concentration (as applicable), in a manner consistent with part 75 of 
this chapter. The following systems are the principal types of 
continuous emission monitoring systems required under subpart HH of this 
part:
    (1) A flow monitoring system, consisting of a stack flow rate 
monitor and an automated data acquisition and handling system and 
providing a permanent, continuous record of stack gas volumetric flow 
rate, in standard cubic feet per hour (scfh);
    (2) A nitrogen oxides concentration monitoring system, consisting of 
a NOX pollutant concentration monitor and an automated data 
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 pollutant 
concentration monitor, a diluent gas (CO2 or O2) 
monitor, and an automated data acquisition and handling system and 
providing a permanent, continuous record of NOX 
concentration, in parts per million (ppm), diluent gas concentration, in 
percent CO2 or O2; and NOX emission 
rate, in pounds per million British thermal units (lb/mmBtu);
    (4) A moisture monitoring system, as defined in Sec. 75.11(b)(2) of 
this chapter and providing a permanent, continuous record of the stack 
gas moisture content, in percent H2O;
    (5) A carbon dioxide monitoring system, consisting of a 
CO2 pollutant concentration monitor (or an oxygen monitor 
plus suitable mathematical equations from which the CO2 
concentration is derived) and an automated data acquisition and handling 
system and providing a permanent, continuous record of CO2 
emissions, in percent CO2; and
    (6) An oxygen monitoring system, consisting of an O2 
concentration monitor and an automated data acquisition and handling 
system and providing a permanent, continuous record of O2, in 
percent O2.
    Control period means the period beginning January 1 of a calendar 
year, except as provided in Sec. 96.106(c)(2), and ending on December 
31 of the same year, inclusive.
    Emissions means air pollutants exhausted from a unit or source into 
the atmosphere, as measured, recorded, and reported to the Administrator 
by the CAIR designated representative and as determined by the 
Administrator in accordance with subpart HH of this part.
    Excess emissions means any ton of nitrogen oxides emitted by the 
CAIR NOX units at a CAIR NOX source during a 
control period that exceeds the CAIR NOX emissions limitation 
for the source.
    Fossil fuel means natural gas, petroleum, coal, or any form of 
solid, liquid, or gaseous fuel derived from such material.
    Fossil-fuel-fired means, with regard to a unit, combusting any 
amount of fossil fuel in any calendar year.
    Fuel oil means any petroleum-based fuel (including diesel fuel or 
petroleum derivatives such as oil tar) and any recycled or blended 
petroleum products or petroleum by-products used as a fuel whether in a 
liquid, solid, or gaseous state.
    General account means a CAIR NOX Allowance Tracking 
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 cogeneration unit, 
electricity made available for use, including any such electricity used 
in the power production process (which process includes, but is not 
limited to, any on-site processing or treatment of fuel

[[Page 739]]

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 fuel feed 
rate into a combustion device (in lb of fuel/time), as measured, 
recorded, and reported to the Administrator by the CAIR designated 
representative and determined by the Administrator in accordance with 
subpart HH of this part and excluding 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 specific fuel, the 
amount of heat input attributed to the fuel (in mmBtu) divided by the 
unit operating time (in hr) during which the unit combusts the fuel.
    Hg Budget Trading Program means a multi-state Hg air pollution 
control and emission reduction program approved and administered by the 
Administrator in accordance subpart HHHH of part 60 of this chapter and 
Sec. 60.24(h)(6), or established by the Administrator under section 111 
of the Clean Air Act, as a means of reducing national Hg emissions.
    Life-of-the-unit, firm power contractual arrangement means a unit 
participation power sales agreement under which a utility or industrial 
customer reserves, or is entitled to receive, a specified amount or 
percentage of nameplate capacity and associated energy generated by any 
specified unit and pays its proportional amount of such 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, including 
contracts that permit an election for early termination; or
    (3) For a period no less than 25 years or 70 percent of the economic 
useful life of the unit determined as of the time the unit is built, 
with option rights to purchase or release some portion of the nameplate 
capacity and associated energy generated by the unit at the end of the 
period.
    Maximum design heat input means the maximum amount of fuel per hour 
(in Btu/hr) that a unit is capable of combusting on a steady state basis 
as of the initial installation of the unit as specified by the 
manufacturer of the unit.
    Monitoring system means any monitoring system that meets the 
requirements of subpart HH of this part, including a continuous 
emissions monitoring system, an alternative monitoring system, or an 
excepted monitoring system under part 75 of this chapter.
    Most stringent State or Federal NOX emissions limitation means, with 
regard to a unit, the lowest NOX emissions limitation (in 
terms of lb/mmBtu) that is applicable to the unit under State or Federal 
law, regardless of the averaging period to which the emissions 
limitation applies.
    Nameplate capacity means, starting from the initial installation of 
a generator, the maximum electrical generating output (in MWe) that the 
generator is capable of producing on a steady state basis and during 
continuous operation (when not restricted by seasonal or other 
deratings) as of such installation as specified by the manufacturer of 
the generator or, starting from the completion of any subsequent 
physical change in the generator resulting in an increase in the maximum 
electrical generating output (in MWe) that the generator is capable of 
producing on a steady state basis and during continuous operation (when 
not restricted by seasonal or other deratings), such increased maximum 
amount as of such completion as 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 heat input in a 
specified year and not qualifying as coal-fired.
    Operator means any person who operates, controls, or supervises a 
CAIR NOX unit or a CAIR NOX source 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:

[[Page 740]]

    (1) With regard to a CAIR NOX source or a CAIR 
NOX unit at a source, respectively:
    (i) Any holder of any portion of the legal or equitable title in a 
CAIR NOX unit at the source or the CAIR NOX unit;
    (ii) Any holder of a leasehold interest in a CAIR NOX 
unit at the source or the CAIR NOX unit; or
    (iii) Any purchaser of power from a CAIR NOX unit at the 
source or the CAIR NOX unit 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 an equitable interest through such lessor, whose 
rental payments are not based (either directly or indirectly) on the 
revenues or income from such CAIR NOX unit; or
    (2) With regard to any general account, any person who has an 
ownership interest with respect to the CAIR NOX allowances 
held in the general account and who is subject to the binding agreement 
for the CAIR authorized account representative to represent the person's 
ownership interest with respect to CAIR NOX allowances.
    Permitting authority means the State air pollution control agency, 
local agency, other State agency, or other agency authorized by the 
Administrator to issue or revise permits to meet the requirements of the 
CAIR NOX Annual Trading Program or, if no such agency has 
been so authorized, the Administrator.
    Potential electrical output capacity means 33 percent of a unit's 
maximum design heat input, divided by 3,413 Btu/kWh, divided by 1,000 
kWh/MWh, and multiplied by 8,760 hr/yr.
    Receive or receipt of means, when referring to the permitting 
authority or the Administrator, to come into possession of a document, 
information, or correspondence (whether sent in hard copy or by 
authorized electronic transmission), as indicated in an official log, or 
by a notation made on the document, information, or correspondence, by 
the permitting authority or the Administrator in the regular course of 
business.
    Recordation, record, or recorded means, with regard to CAIR 
NOX allowances, the movement of CAIR NOX 
allowances by the Administrator into or between CAIR NOX 
Allowance Tracking System accounts, for purposes of allocation, 
transfer, or deduction.
    Reference method means any direct test method of sampling and 
analyzing for an air pollutant as specified in Sec. 75.22 of this 
chapter.
    Replacement, replace, or replaced means, with regard to a unit, the 
demolishing of a unit, or the permanent shutdown and permanent disabling 
of a unit, and the construction of another unit (the replacement unit) 
to be used instead of the demolished or shutdown unit (the replaced 
unit).
    Repowered means, with regard to a unit, replacement of a coal-fired 
boiler with one of the following coal-fired technologies at the 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 the 
Secretary of Energy, a derivative of one or more of the technologies 
under paragraphs (1) through (5) of this definition and any other coal-
fired technology capable of controlling multiple combustion emissions 
simultaneously with improved boiler or generation efficiency and with 
significantly greater waste reduction relative to the performance of 
technology in widespread commercial use as of January 1, 2005.
    Serial number means, for a CAIR NOX allowance, the unique 
identification number assigned to each CAIR NOX allowance by 
the Administrator.
    Sequential use of energy means:
    (1) For a topping-cycle cogeneration unit, the use of reject heat 
from electricity production in a useful thermal energy application or 
process; or
    (2) For a bottoming-cycle cogeneration unit, the use of reject heat 
from useful thermal energy application or process in electricity 
production.
    Solid waste incineration unit means a stationary, fossil-fuel-fired 
boiler or

[[Page 741]]

stationary, fossil-fuel-fired combustion turbine that is a ``solid waste 
incineration unit'' as defined in section 129(g)(1) of the Clean Air 
Act.
    Source means all buildings, structures, or installations located in 
one or more contiguous or adjacent properties under common control 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 a single ``facility.''
    State means one of the States or the District of Columbia that 
adopts the CAIR NOX Annual Trading Program pursuant to 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 accordance with 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 of dispatch, transmission, or mailing and not the 
date of receipt.
    Title V operating permit means a permit issued under title V of the 
Clean Air Act and part 70 or part 71 of this chapter.
    Title V operating permit regulations means the regulations that the 
Administrator has approved or issued as meeting the requirements of 
title V of the Clean Air Act and part 70 or 71 of this chapter.
    Ton means 2,000 pounds. For the purpose of determining compliance 
with the CAIR NOX emissions limitation, total tons of 
nitrogen oxides emissions for a control period shall be calculated as 
the sum of all recorded hourly emissions (or the mass equivalent of the 
recorded hourly emission rates) in accordance with subpart HH of this 
part, but with any remaining fraction of a ton equal to or greater than 
0.50 tons deemed to equal one ton and any remaining fraction of a ton 
less than 0.50 tons deemed to equal zero tons.
    Topping-cycle cogeneration unit means a cogeneration unit in which 
the energy input to the unit is first used to produce useful power, 
including electricity, and at least some of the reject heat from the 
electricity production is then used to provide useful thermal energy.
    Total energy input means, with regard to a cogeneration unit, total 
energy of all forms supplied to the cogeneration unit, excluding energy 
produced by the cogeneration unit itself. Each form of energy supplied 
shall be measured by the lower heating value of that 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 cogeneration unit, the 
sum of useful power and useful thermal energy produced by the 
cogeneration unit.
    Unit means a stationary, fossil-fuel-fired boiler or combustion 
turbine or other stationary, fossil-fuel-fired combustion device.
    Unit operating day means a calendar day in which a unit combusts any 
fuel.
    Unit operating hour or hour of unit operation means an hour 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 any such energy 
used in the power production process (which process includes, but is not 
limited to, any on-site processing or treatment of fuel combusted at the 
unit and any on-site emission controls).
    Useful thermal energy means, with regard to a cogeneration unit, 
thermal energy that is:
    (1) Made available to an industrial or commercial process (not a 
power production process), excluding any heat contained in condensate 
return or makeup water;
    (2) Used in a heating application (e.g., space heating or domestic 
hot water heating); or
    (3) Used in a space cooling application (i.e., thermal energy used 
by an absorption chiller).
    Utility power distribution system means the portion of an 
electricity grid owned

[[Page 742]]

or operated by a utility and dedicated to delivering 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 and 
subparts 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 NOX 
units, and any source that includes one or more such units shall be a 
CAIR NOX source, subject to the requirements of this subpart 
and subparts BB through HH of this part: any stationary, fossil-fuel-
fired boiler or stationary, fossil-fuel-fired combustion turbine serving 
at any time, since the later of November 15, 1990 or the start-up of the 
unit's combustion chamber, a generator with nameplate 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 NOX 
unit begins to combust fossil fuel or to serve a generator with 
nameplate capacity of more than 25 MWe producing electricity for sale, 
the unit shall become a CAIR NOX unit as provided in 
paragraph (a)(1) of this section on the first date on which it both 
combusts fossil fuel and serves such generator.
    (b) The units in a State that meet the requirements set forth in 
paragraph (b)(1)(i), (b)(2)(i), or (b)(2)(ii) of this section shall not 
be CAIR NOX units:
    (1)(i) Any unit that is a CAIR NOX unit under paragraph 
(a)(1) or (2) of this section:
    (A) Qualifying as a cogeneration unit during the 12-month period 
starting on the date the unit first produces electricity and continuing 
to qualify as a cogeneration unit; and
    (B) Not serving at any time, since the later of November 15, 1990 or 
the start-up of the unit's combustion chamber, a generator with 
nameplate capacity of more than 25 MWe supplying in any calendar year 
more than one-third of the unit's potential electric output capacity or 
219,000 MWh, whichever is greater, to any utility power distribution 
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 electricity and 
meets the requirements of paragraphs (b)(1)(i) of this section for at 
least one calendar year, but subsequently no longer meets all such 
requirements, the unit shall become a CAIR NOX unit starting 
on the earlier of January 1 after the first calendar year during which 
the unit first no longer qualifies as a cogeneration unit or January 1 
after the first calendar year during which 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 unit under paragraph 
(a)(1) or (2) of this section commencing operation before January 1, 
1985:
    (A) Qualifying as a solid waste incineration unit; and
    (B) With an average annual fuel consumption of non-fossil fuel for 
1985-1987 exceeding 80 percent (on a Btu basis) and an average annual 
fuel consumption of non-fossil fuel for any 3 consecutive calendar 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 January 
1, 1985:

[[Page 743]]

    (A) Qualifying as a solid waste incineration unit; and
    (B) With an average annual fuel consumption of non-fossil fuel for 
the first 3 calendar years of operation exceeding 80 percent (on a Btu 
basis) and an average annual fuel consumption of non-fossil fuel for any 
3 consecutive calendar years after 1990 exceeding 80 percent (on a Btu 
basis).
    (iii) If a unit qualifies as a solid waste incineration unit and 
meets the requirements of paragraph (b)(2)(i) or (ii) of this section 
for at least 3 consecutive calendar years, but subsequently no longer 
meets all such requirements, the unit shall become a CAIR NOX 
unit starting on the earlier of January 1 after the first calendar year 
during which the unit first no longer qualifies as a solid waste 
incineration unit or January 1 after the first 3 consecutive calendar 
years after 1990 for which the unit has an average 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 retired and 
is not a CAIR NOX opt-in unit under subpart II of this part 
shall be exempt from the CAIR NOX Annual Trading Program, 
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 shall 
become effective the day on which the CAIR NOX unit is 
permanently retired. Within 30 days of the unit's permanent retirement, 
the CAIR designated representative shall submit a statement to the 
permitting authority otherwise responsible for administering any CAIR 
permit for the unit and shall submit a copy of the statement to the 
Administrator. The statement shall state, in a format prescribed by the 
permitting authority, that the unit was permanently retired on a 
specific date and will comply with the requirements of paragraph (b) of 
this section.
    (3) After receipt of the statement under paragraph (a)(2) of this 
section, the permitting authority will amend any permit under subpart CC 
of this part covering the source at which the unit is located to add 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 on the date 
that the exemption takes effect.
    (2) The permitting authority will allocate CAIR NOX 
allowances under subpart EE of this 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 this 
section shall retain, at the source that includes the unit, records 
demonstrating that the unit is permanently retired. The 5-year period 
for keeping records may be extended for cause, at any time before the 
end of the period, in writing by the permitting authority or the 
Administrator. The owners and operators bear the burden of proof that 
the unit is permanently retired.
    (4) The owners and operators and, to the extent applicable, the CAIR 
designated representative of a unit exempt under paragraph (a) of this 
section shall comply with the requirements of the CAIR NOX 
Annual Trading Program concerning all periods for which 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 located at 
a source that is required, or but for this exemption would be required, 
to have a title V operating permit shall not resume operation unless the 
CAIR designated representative of the source submits a complete CAIR 
permit application under Sec. 96.122 for the unit not less than 18 
months (or such lesser time provided by the permitting authority) before 
the later of January 1, 2009 or the date on which the unit resumes 
operation.
    (6) On the earlier of the following dates, a unit exempt under 
paragraph (a) of this section shall lose its exemption:
    (i) The date on which the CAIR designated representative submits a 
CAIR

[[Page 744]]

permit application for the unit under paragraph (b)(5) of this section;
    (ii) The date on which the CAIR designated representative is 
required under paragraph (b)(5) of this section to submit a CAIR permit 
application for the unit; or
    (iii) The date on which the unit resumes operation, if the CAIR 
designated representative is not required to submit a CAIR permit 
application for the unit.
    (7) For the purpose of applying monitoring, reporting, and 
recordkeeping requirements under subpart HH of this part, a unit that 
loses its exemption under paragraph (a) of this section shall be treated 
as a unit that commences commercial operation on the first date 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 designated representative of 
each CAIR NOX source required to have a title V operating 
permit and each CAIR NOX unit required to have a title V 
operating permit at the source shall:
    (i) Submit to the permitting authority a complete CAIR permit 
application under Sec. 96.122 in accordance with the deadlines 
specified in Sec. 96.121; and
    (ii) Submit in a timely manner any supplemental information that the 
permitting authority determines is necessary in order to review a CAIR 
permit application and issue or deny a CAIR permit.
    (2) The owners and operators of each CAIR NOX source 
required to have a title V operating permit and each CAIR NOX 
unit required to have a title V operating permit at the source shall 
have a CAIR permit issued by the permitting authority under subpart CC 
of this part for the source and operate the source and the unit in 
compliance with such CAIR permit.
    (3) Except as provided in subpart II of this part, the owners and 
operators of a CAIR NOX source that is not otherwise required 
to have a title V operating permit and each CAIR NOX unit 
that is not otherwise required to have a title V operating permit are 
not required to submit a CAIR permit application, and to have a CAIR 
permit, under subpart CC of this part for such CAIR NOX 
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 unit at the 
source shall comply with the monitoring, reporting, and recordkeeping 
requirements of subpart HH of this part.
    (2) The emissions measurements recorded and reported in accordance 
with subpart HH of this part shall be used to determine compliance by 
each CAIR NOX source with the CAIR NOX emissions 
limitation under paragraph (c) of this section.
    (c) Nitrogen oxides emission requirements. (1) As of the allowance 
transfer deadline for a control period, the owners and operators of each 
CAIR NOX source and each CAIR NOX unit at the 
source shall hold, in the source's compliance account, CAIR 
NOX allowances available for compliance deductions for the 
control period under Sec. 96.154(a) in an amount not less than the tons 
of total nitrogen oxides emissions for the control period from all CAIR 
NOX units at the source, as determined in accordance with 
subpart HH of this part.
    (2) A CAIR NOX unit shall be subject to the requirements 
under paragraph (c)(1) of this section for the control period starting 
on the later of January 1, 2009 or the deadline for meeting the unit's 
monitor certification requirements under Sec. 96.170(b)(1), (2), or (5) 
and for each control period thereafter.
    (3) A CAIR NOX allowance shall not be deducted, for 
compliance with the requirements under paragraph (c)(1) of this section, 
for a control period in a calendar year before the year for which the 
CAIR NOX allowance was allocated.
    (4) CAIR NOX allowances shall be held in, deducted from, 
or transferred into or among CAIR NOX Allowance Tracking 
System accounts in accordance with subparts FF, GG, and II of this part.
    (5) A CAIR NOX allowance is a limited authorization to 
emit one ton of nitrogen oxides in accordance with the CAIR 
NOX Annual Trading Program. No provision of the CAIR 
NOX Annual

[[Page 745]]

Trading Program, the CAIR permit application, the CAIR permit, or an 
exemption under Sec. 96.105 and no provision of law shall be construed 
to limit the authority of the State or the United States to terminate or 
limit such authorization.
    (6) A CAIR NOX allowance does not constitute a property 
right.
    (7) Upon recordation by the Administrator under subpart EE, FF, GG, 
or II of this part, every allocation, transfer, or deduction of a CAIR 
NOX allowance to or from a CAIR NOX source's 
compliance account is incorporated automatically in any CAIR permit of 
the source.
    (d) Excess emissions requirements. If a CAIR NOX source 
emits nitrogen oxides during any control period in excess of the CAIR 
NOX emissions limitation, then:
    (1) The owners and operators of the source and each CAIR 
NOX unit at the source shall surrender the CAIR 
NOX allowances required for deduction under Sec. 
96.154(d)(1) and pay any fine, penalty, or assessment or 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 control 
period shall constitute a separate violation of this subpart, the Clean 
Air Act, and applicable State law.
    (e) Recordkeeping and reporting requirements. (1) Unless otherwise 
provided, the owners and operators of the CAIR NOX source and 
each CAIR NOX unit at the source shall keep on site at the 
source each of the following documents for a period of 5 years from the 
date the document is created. This period may be extended for cause, at 
any time before the end of 5 years, in writing by the permitting 
authority or the Administrator.
    (i) The certificate of representation under Sec. 96.113 for the 
CAIR designated representative for the source and each CAIR 
NOX unit at the source and all documents that demonstrate the 
truth of the statements in the certificate of representation; provided 
that the certificate and documents shall be retained on site at the 
source beyond such 5-year period until such documents are superseded 
because of the submission of a new certificate of representation under 
Sec. 96.113 changing the CAIR designated representative.
    (ii) All emissions monitoring information, in accordance with 
subpart HH of this part, provided that to the extent that subpart HH of 
this part provides for a 3-year period for recordkeeping, the 3-year 
period shall apply.
    (iii) Copies of all reports, compliance certifications, and other 
submissions and all records made or required under the CAIR 
NOX Annual Trading Program.
    (iv) Copies of all documents used to complete a CAIR permit 
application and any other submission under the CAIR NOX 
Annual Trading Program or to demonstrate compliance with the 
requirements of the CAIR NOX Annual Trading Program.
    (2) The CAIR designated representative of a CAIR NOX 
source and each CAIR NOX unit at the source shall submit the 
reports required under the CAIR NOX Annual Trading Program, 
including those under subpart HH of this part.
    (f) Liability. (1) Each CAIR NOX source and each CAIR 
NOX unit shall meet the requirements of the CAIR 
NOX Annual Trading Program.
    (2) Any provision of the CAIR NOX Annual Trading Program 
that applies to a CAIR NOX source or the CAIR designated 
representative of a CAIR NOX source shall also apply to the 
owners and operators of such source and of the CAIR NOX units 
at the source.
    (3) Any provision of the CAIR NOX Annual Trading Program 
that applies to a CAIR NOX unit or the CAIR designated 
representative of a CAIR NOX unit shall also apply to the 
owners and operators of such unit.
    (g) Effect on other authorities. No provision of the CAIR 
NOX Annual Trading Program, a CAIR permit application, a CAIR 
permit, or an exemption under Sec. 96.105 shall be construed as 
exempting or excluding the owners and operators, and the CAIR designated 
representative, of a CAIR NOX source or CAIR NOX 
unit from compliance with any other provision of the applicable, 
approved State implementation plan, a federally enforceable permit, or 
the Clean Air Act.

[70 FR 25339, May 12, 2005, as amended at 71 FR 25382, Apr. 28, 2006]

[[Page 746]]



Sec. 96.107  Computation of time.

    (a) Unless otherwise stated, any time period scheduled, under the 
CAIR NOX Annual Trading Program, to begin on the occurrence 
of an act or event shall begin on the day the act or event occurs.
    (b) Unless otherwise stated, any time period scheduled, under the 
CAIR NOX Annual Trading Program, to begin before the 
occurrence of an act or event shall be computed so that the period ends 
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 a weekend 
or a State or Federal holiday, the time period shall be extended to the 
next business day.



Sec. 96.108  Appeal procedures.

    The appeal procedures for decisions of the Administrator under the 
CAIR NOX Annual Trading Program are set forth in part 78 of 
this chapter.



     Subpart BB_CAIR Designated Representative for CAIR NOX Sources

    Source: 70 FR 25339, May 12, 2005, unless otherwise noted.



Sec. 96.110  Authorization and responsibilities of CAIR designated 

representative.

    (a) Except as provided under Sec. 96.111, each CAIR NOX 
source, including all CAIR NOX units at the source, shall 
have one and only one CAIR designated representative, with regard to all 
matters under the CAIR NOX Annual Trading Program concerning 
the source or any CAIR NOX unit at the source.
    (b) The CAIR designated representative of the CAIR NOX 
source shall be selected by an agreement binding on the owners and 
operators of the source and all CAIR NOX units at the source 
and shall act in accordance with the certification statement in Sec. 
96.113(a)(4)(iv).
    (c) Upon receipt by the Administrator of a complete certificate of 
representation under Sec. 96.113, the CAIR designated representative of 
the source shall represent and, by his or her representations, actions, 
inactions, or submissions, legally bind each owner and operator of the 
CAIR NOX source represented and each CAIR NOX unit 
at the source in all matters pertaining to the CAIR NOX 
Annual Trading Program, notwithstanding any agreement between the CAIR 
designated representative and such owners and operators. The owners and 
operators shall be bound by any decision or order issued to the CAIR 
designated representative by the permitting authority, the 
Administrator, or a court regarding the source or unit.
    (d) No CAIR permit will be issued, no emissions data reports will be 
accepted, and no CAIR NOX Allowance Tracking System account 
will be established for a CAIR NOX unit at a source, until 
the Administrator has received a complete certificate of representation 
under Sec. 96.113 for a CAIR designated representative of the source 
and the CAIR NOX units at the source.
    (e)(1) Each submission under the CAIR NOX Annual Trading 
Program shall be submitted, signed, and certified by the CAIR designated 
representative for each CAIR NOX source on behalf of which 
the submission is made. Each such submission shall include the following 
certification statement by the CAIR designated representative: ``I am 
authorized to make this submission on behalf of the owners and operators 
of the source or units for which the submission is made. I certify under 
penalty of law that I have personally examined, and am familiar with, 
the statements and information submitted in this document and all its 
attachments. Based on my inquiry of those individuals with primary 
responsibility for obtaining the information, I certify that the 
statements and information are to the best of my knowledge and belief 
true, accurate, and complete. I am aware that there are significant 
penalties for submitting false statements and information or omitting 
required statements and information, including the possibility of fine 
or imprisonment.''
    (2) The permitting authority and the Administrator will accept or 
act on a submission made on behalf of owner or operators of a CAIR 
NOX source or a CAIR NOX unit only if the 
submission

[[Page 747]]

has been made, signed, and certified in accordance with paragraph (e)(1) 
of this section.



Sec. 96.111  Alternate CAIR designated representative.

    (a) A certificate of representation under Sec. 96.113 may designate 
one and only one alternate CAIR designated representative, who may act 
on behalf of the CAIR designated representative. The agreement by which 
the alternate CAIR designated representative is selected shall include a 
procedure for authorizing the alternate CAIR designated representative 
to act in lieu of the CAIR designated representative.
    (b) Upon receipt by the Administrator of a complete certificate of 
representation under Sec. 96.113, any representation, action, inaction, 
or submission by the alternate CAIR designated representative 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'' is used in subparts AA through II of this 
part, the term shall be construed to include the CAIR designated 
representative or any alternate 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 CAIR 

designated representative; changes in owners and operators.

    (a) Changing CAIR designated representative. The CAIR designated 
representative may be changed at any time upon receipt by the 
Administrator of a superseding complete certificate of representation 
under Sec. 96.113. Notwithstanding any such change, all 
representations, actions, inactions, and submissions by the previous 
CAIR designated representative before the time and date when the 
Administrator receives the superseding certificate of representation 
shall be binding on the new CAIR designated representative and the 
owners and operators of the CAIR NOX source and the CAIR 
NOX units at the source.
    (b) Changing alternate CAIR designated representative. The alternate 
CAIR designated representative may be changed at any time upon receipt 
by the Administrator of a superseding complete certificate of 
representation under Sec. 96.113. Notwithstanding any such change, all 
representations, actions, inactions, and submissions by the previous 
alternate CAIR designated representative before the time and date when 
the Administrator receives the superseding certificate of representation 
shall be binding on the new alternate CAIR designated representative and 
the owners and operators of the CAIR NOX source and the CAIR 
NOX units at the source.
    (c) Changes in owners and operators. (1) In the event an owner or 
operator of a CAIR NOX source or a CAIR NOX unit 
is not included in the list of owners and operators in the certificate 
of representation under Sec. 96.113, such owner or operator shall be 
deemed to be subject to and bound by the certificate of representation, 
the representations, actions, inactions, and submissions of the CAIR 
designated representative and any alternate CAIR designated 
representative of the source or unit, and the decisions and orders of 
the permitting authority, the Administrator, or a court, as if the owner 
or operator were included in such list.
    (2) Within 30 days following any change in the owners and operators 
of a CAIR NOX source or a CAIR NOX unit, including 
the addition of a new owner or operator, the CAIR designated 
representative or any alternate CAIR designated representative shall 
submit a revision to the certificate of representation under Sec. 
96.113 amending the list of owners and 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 designated 
representative or an alternate CAIR designated representative shall 
include the following elements in a format prescribed by the 
Administrator:
    (1) Identification of the CAIR NOX source, and each CAIR 
NOX unit at the

[[Page 748]]

source, for which the certificate of representation is submitted, 
including identification and nameplate capacity 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 designated 
representative and any alternate CAIR designated representative.
    (3) A list of the owners and operators of the CAIR NOX 
source and of each CAIR NOX unit at the source.
    (4) The following certification statements by the CAIR designated 
representative and any alternate CAIR designated representative--
    (i) ``I certify that I was selected as the CAIR designated 
representative or alternate CAIR designated representative, as 
applicable, by an agreement binding on the owners and operators of the 
source and each CAIR NOX unit at the source.''
    (ii) ``I certify that I have all the necessary authority to carry 
out my duties and responsibilities under the CAIR NOX Annual 
Trading Program on behalf of the owners and operators of the source and 
of each CAIR NOX unit at the source and that each such owner 
and operator shall be fully bound by my representations, actions, 
inactions, or submissions.''
    (iii) ``I certify that the owners and operators of the source and of 
each CAIR NOX unit at the source shall be bound by any order 
issued to me by the Administrator, the permitting authority, or a court 
regarding the source or unit.''
    (iv) ``Where there are multiple holders of a legal or equitable 
title to, or a leasehold interest in, a CAIR NOX unit, or 
where a utility or industrial customer purchases power from a CAIR 
NOX unit under a life-of-the-unit, firm power contractual 
arrangement, I certify that: I have given a written notice of my 
selection as the `CAIR designated representative' or `alternate CAIR 
designated representative', as applicable, and of the agreement by which 
I was selected to each owner and operator of the source and of each CAIR 
NOX unit at the source; and CAIR NOX allowances 
and proceeds of transactions involving CAIR NOX allowances 
will be deemed 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 a 
different distribution of CAIR NOX allowances by contract, 
CAIR NOX allowances and proceeds of transactions involving 
CAIR NOX allowances will be deemed to be held or distributed 
in accordance with the contract.''
    (5) The signature of the CAIR designated representative and any 
alternate CAIR designated representative and the dates signed.
    (b) Unless otherwise required by the permitting authority or the 
Administrator, documents of agreement referred to in the certificate of 
representation shall not be submitted to the permitting authority or the 
Administrator. Neither the permitting authority nor the Administrator 
shall be under any obligation to review or evaluate the 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 under Sec. 96.113 
has been submitted and received, the permitting authority and the 
Administrator will rely on the certificate of representation unless and 
until a superseding complete certificate of representation under Sec. 
96.113 is received by the Administrator.
    (b) Except as provided in Sec. 96.112(a) or (b), no objection or 
other communication submitted to the permitting authority or the 
Administrator concerning the authorization, or any representation, 
action, inaction, or submission, of the CAIR designated representative 
shall affect any representation, action, inaction, or submission of the 
CAIR designated representative or the finality of any decision or order 
by the permitting authority or the Administrator under the CAIR 
NOX Annual Trading Program.
    (c) Neither the permitting authority nor the Administrator will 
adjudicate any private legal dispute concerning

[[Page 749]]

the authorization or any representation, action, inaction, or submission 
of any CAIR designated representative, including private legal disputes 
concerning the proceeds of CAIR NOX allowance transfers.



Sec. 96.115  Delegation by CAIR designated representative and alternate CAIR 

designated representative.

    (a) A CAIR designated representative may delegate, to one or more 
natural persons, his or her authority to make an electronic submission 
to the Administrator provided for or required under this part.
    (b) An alternate CAIR designated representative may delegate, to one 
or more natural persons, his or her authority to make an electronic 
submission to the Administrator provided for or required under this 
part.
    (c) In order to delegate authority to make an electronic submission 
to the Administrator in accordance with paragraph (a) or (b) of this 
section, the CAIR designated representative or alternate CAIR designated 
representative, as appropriate, must submit to the Administrator a 
notice of delegation, in a format prescribed by the Administrator, that 
includes the following elements:
    (1) The name, address, e-mail address, telephone number, and 
facsimile transmission number (if any) of such CAIR designated 
representative or alternate CAIR designated representative;
    (2) The name, address, e-mail address, telephone number, and 
facsimile 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 of 
electronic submissions under paragraph (a) or (b) of this section for 
which authority is delegated to him or her; and
    (4) The following certification statements by such CAIR designated 
representative or alternate CAIR designated representative:
    (i) ``I agree that any electronic submission to the Administrator 
that is by an agent identified in this notice of delegation and of a 
type listed for such agent in this notice of delegation and that is made 
when I am a CAIR designated representative or alternate CAIR designated 
representative, as appropriate, and before this notice of delegation is 
superseded by another notice of delegation under 40 CFR 96.115(d) shall 
be deemed to be an electronic submission by me.''
    (ii) ``Until this notice of delegation is superseded by another 
notice of delegation under 40 CFR 96.115(d), I agree to maintain an e-
mail account and to notify the Administrator immediately of any change 
in my e-mail address unless all delegation of authority by me under 40 
CFR 96.115 is terminated.''
    (d) A notice of delegation submitted under paragraph (c) of this 
section shall be effective, with regard to the CAIR designated 
representative or alternate CAIR designated representative identified in 
such notice, upon receipt of such notice by the Administrator and until 
receipt by the Administrator of a superseding notice of delegation 
submitted by such CAIR designated representative or alternate CAIR 
designated representative, as appropriate. The superseding notice of 
delegation may replace any previously identified agent, add a new agent, 
or eliminate entirely any delegation of authority.
    (e) Any electronic submission covered by the certification in 
paragraph (c)(4)(i) of this section and made in accordance with a notice 
of delegation effective under paragraph (d) of this section shall be 
deemed to be an electronic submission by the CAIR designated 
representative or alternate CAIR designated representative submitting 
such 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 otherwise noted.



Sec. 96.120  General CAIR NOX Annual Trading Program permit 

requirements.

    (a) For each CAIR NOX source required to have a title V 
operating permit or required, under subpart II of this part, to have a 
title V operating permit or other federally enforceable permit, such 
permit shall include a

[[Page 750]]

CAIR permit administered by the permitting authority for the title V 
operating permit or the federally enforceable permit as applicable. The 
CAIR portion of the title V permit or other federally enforceable permit 
as applicable shall be administered in accordance with the permitting 
authority's title V operating permits regulations promulgated under part 
70 or 71 of this chapter or the permitting authority's regulations for 
other federally enforceable permits as applicable, except as provided 
otherwise by Sec. 96.105, this subpart, and subpart II of this part.
    (b) Each CAIR permit shall contain, with regard to the CAIR 
NOX source and the CAIR NOX units at the source 
covered by the CAIR permit, all applicable CAIR NOX Annual 
Trading Program, CAIR NOX Ozone Season Trading Program, and 
CAIR SO2 Trading Program requirements and shall be a complete 
and separable portion of the title V operating permit or other federally 
enforceable permit under paragraph (a) of this 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 any CAIR 
NOX source required to have a title V operating permit shall 
submit to the permitting authority a complete CAIR permit application 
under Sec. 96.122 for the source covering each CAIR NOX unit 
at the source at least 18 months (or such lesser time provided by the 
permitting authority) before the later of January 1, 2009 or the date on 
which the CAIR NOX unit commences commercial operation, 
except as provided in Sec. 96.183(a).
    (b) Duty to Reapply. For a CAIR NOX source required to 
have a title V operating permit, the CAIR designated representative 
shall submit a complete CAIR permit application under Sec. 96.122 for 
the source covering each CAIR NOX unit at the source to renew 
the CAIR permit in accordance with the permitting authority's title V 
operating permits regulations addressing permit renewal, except as 
provided in Sec. 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 following 
elements concerning the CAIR NOX source for which the 
application is submitted, in a format prescribed by the permitting 
authority:
    (a) Identification of the CAIR NOX source;
    (b) Identification of each CAIR NOX unit at the CAIR 
NOX source; and
    (c) The standard requirements under Sec. 96.106.



Sec. 96.123  CAIR permit contents and term.

    (a) Each CAIR permit will contain, in a format prescribed by the 
permitting authority, all elements required for a complete CAIR permit 
application under Sec. 96.122.
    (b) Each CAIR permit is deemed to incorporate automatically the 
definitions of terms under Sec. 96.102 and, upon recordation by the 
Administrator under subpart EE, FF, GG, or II of this part, every 
allocation, transfer, or deduction of a CAIR NOX allowance to 
or from the compliance account of the CAIR NOX source covered 
by the permit.
    (c) The term of the CAIR permit will be set by the permitting 
authority, as necessary to facilitate coordination of the renewal of the 
CAIR permit with issuance, revision, or renewal of the CAIR 
NOX source's title V operating permit or other federally 
enforceable 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 permitting authority will 
revise the CAIR permit, as necessary, in accordance with the permitting 
authority's title V operating permits regulations or the permitting 
authority's regulations for other federally enforceable permits as 
applicable addressing permit revisions.

Subpart DD [Reserved]

[[Page 751]]



                Subpart EE_CAIR NOX Allowance Allocations

    Source: 70 FR 25339, May 12, 2005, unless otherwise noted.



Sec. 96.140  State trading budgets.

    The State trading budgets for annual allocations of CAIR 
NOX allowances for the control periods in 2009 through 2014 
and in 2015 and thereafter are respectively as follows:

------------------------------------------------------------------------
                                                          State trading
                                        State trading    budget for 2015
                State                 budget for 2009-   and thereafter
                                         2014 (tons)         (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 to the 
Administrator the CAIR NOX allowance allocations, in a format 
prescribed by the Administrator and in accordance with Sec. 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 CAIR 
NOX allowance allocations, in a format prescribed by the 
Administrator and in accordance with Sec. 96.142(a) and (b), for the 
control period in the sixth year after the year of the applicable 
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 CAIR 
NOX allowance allocations, in a format prescribed by the 
Administrator and in accordance with Sec. 96.142(a), (c), and (d), for 
the control period in the year of the applicable deadline for submission 
under this paragraph.

[70 FR 25339, May 12, 2005, as amended at 71 FR 25383, Apr. 28, 2006]



Sec. 96.142  CAIR NOX allowance allocations.

    (a)(1) The baseline heat input (in mmBtu) used with respect to CAIR 
NOX allowance allocations under paragraph (b) of this section 
for each CAIR NOX unit will be:
    (i) For units commencing operation before January 1, 2001 the 
average of the 3 highest amounts of the unit's adjusted control period 
heat input for 2000 through 2004, with the adjusted control period heat 
input for each year calculated as follows:
    (A) If the unit is coal-fired during the year, the unit's control 
period heat input for such year is multiplied by 100 percent;
    (B) If the unit is oil-fired during the year, the unit's control 
period 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) of 
this section, the unit's control period heat input for such year is 
multiplied by 40 percent.
    (ii) For units commencing operation on or after January 1, 2001 and 
operating each calendar year during a period of 5 or more consecutive 
calendar years, the average of the 3 highest amounts of the unit's total 
converted control period heat input over the first such 5 years.
    (2)(i) A unit's control period heat input, and a unit's status as 
coal-fired or oil-fired, for a calendar year under paragraph (a)(1)(i) 
of this section, and a unit's total tons of NOX emissions 
during a calendar year under paragraph (c)(3) of this section, will be 
determined in accordance with part 75 of this chapter, to the extent the 
unit was otherwise subject to the requirements

[[Page 752]]

of part 75 of this chapter for the year, or will be based on the best 
available data reported to the permitting authority for the unit, to the 
extent the unit was not otherwise subject to the requirements of part 75 
of this chapter for the year.
    (ii) A unit's converted control period heat input for a calendar 
year specified under paragraph (a)(1)(ii) of this section equals:
    (A) Except as provided in paragraph (a)(2)(ii)(B) or (C) of this 
section, the control period gross electrical output of the generator or 
generators served by the unit multiplied by 7,900 Btu/kWh, if the unit 
is coal-fired for the year, or 6,675 Btu/kWh, if the unit is not coal-
fired for the year, and divided by 1,000,000 Btu/mmBtu, provided that if 
a generator is served by 2 or more units, then the gross electrical 
output of the generator will be attributed to each unit in proportion to 
the unit's share of the total control period heat input of such units 
for the year;
    (B) For a unit that is a boiler and has equipment used to produce 
electricity and useful thermal energy for industrial, commercial, 
heating, or cooling purposes through the sequential use of energy, the 
total heat energy (in Btu) of the steam produced by the boiler during 
the 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 used 
to produce electricity and useful thermal energy for industrial, 
commercial, heating, or cooling purposes through the sequential use of 
energy, the control period gross electrical output of the enclosed 
device comprising the compressor, combustor, and turbine multiplied by 
3,413 Btu/kWh, plus the total heat energy (in Btu) of the steam produced 
by any associated heat recovery steam generator during the control 
period divided by 0.8, and with the sum divided by 1,000,000 Btu/mmBtu.
    (b)(1) For each control period in 2009 and thereafter, the 
permitting authority will allocate to all CAIR NOX units in 
the State that have a baseline heat input (as determined under paragraph 
(a) of this section) a total amount of CAIR NOX allowances 
equal to 95 percent for a control period during 2009 through 2014, and 
97 percent for a control period during 2015 and thereafter, of the tons 
of NOX emissions in the State trading budget under Sec. 
96.140 (except as provided in paragraph (d) of this section).
    (2) The permitting authority will allocate CAIR NOX 
allowances to each CAIR NOX unit under paragraph (b)(1) of 
this section in an amount determined by multiplying the total amount of 
CAIR NOX allowances allocated under paragraph (b)(1) of this 
section by the ratio of the baseline heat input of such CAIR 
NOX unit to the total amount of baseline heat input of all 
such CAIR NOX units in the State and rounding to the nearest 
whole allowance as appropriate.
    (c) For each control period in 2009 and thereafter, the permitting 
authority will allocate CAIR NOX allowances to CAIR 
NOX units in a State that are not allocated CAIR 
NOX allowances under paragraph (b) of this section because 
the units do not yet have a baseline heat input under paragraph (a) of 
this section or because the units have a baseline heat input but all 
CAIR NOX allowances available under paragraph (b) of this 
section for the control period are already allocated, in accordance with 
the following procedures:
    (1) The permitting authority will establish a separate new unit set-
aside for each control period. Each new unit set-aside will be allocated 
CAIR NOX allowances equal to 5 percent for a control period 
in 2009 through 2014, and 3 percent for a control period in 2015and 
thereafter, of the amount of tons of NOX emissions in the 
State trading budget under Sec. 96.140.
    (2) The CAIR designated representative of such a CAIR NOX 
unit may submit to the permitting authority a request, in a format 
specified by the permitting authority, to be allocated CAIR 
NOX allowances, starting with the later of the control period 
in 2009 or the first control period after the control period in which 
the CAIR NOX unit commences commercial operation and until 
the first control period for which the unit is allocated CAIR 
NOX allowances under paragraph (b) of this section. A 
separate CAIR NOX allowance allocation request for each 
control period for which CAIR NOX allowances are sought must 
be submitted on

[[Page 753]]

or before May 1 of such control period and after the date on which the 
CAIR NOX unit commences commercial operation.
    (3) In a CAIR NOX allowance allocation request under 
paragraph (c)(2) of this section, the CAIR designated representative may 
request for a control period CAIR NOX allowances in an amount 
not exceeding the CAIR NOX unit's total tons of 
NOX emissions during the calendar year immediately before 
such control period.
    (4) The permitting authority will review each CAIR NOX 
allowance allocation request under paragraph (c)(2) of this section and 
will allocate CAIR NOX allowances for each control period 
pursuant to such request as follows:
    (i) The permitting authority will accept an allowance allocation 
request only if the request meets, or is adjusted by the permitting 
authority 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 permitting 
authority will determine the sum of the CAIR NOX allowances 
requested (as adjusted under paragraph (c)(4)(i) of this section) 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 new 
unit set-aside for the control period is greater than or equal to the 
sum under paragraph (c)(4)(ii) of this section, then the permitting 
authority will allocate the amount of CAIR NOX allowances 
requested (as adjusted under paragraph (c)(4)(i) of this section) to 
each CAIR NOX unit covered by an allowance allocation request 
accepted under paragraph (c)(4)(i) of this section.
    (iv) If the amount of CAIR NOX allowances in the new unit 
set-aside for the control period is less than the sum under paragraph 
(c)(4)(ii) of this section, then the permitting authority will allocate 
to each CAIR NOX unit covered by an allowance allocation 
request accepted under paragraph (c)(4)(i) of this section the amount of 
the CAIR NOX allowances requested (as adjusted under 
paragraph (c)(4)(i) of this section), multiplied by the amount of CAIR 
NOX allowances in the new unit set-aside for the control 
period, divided by the sum determined under paragraph (c)(4)(ii) of this 
section, and rounded to the nearest whole allowance as appropriate.
    (v) The permitting authority will notify each CAIR designated 
representative that submitted an allowance allocation request of the 
amount of CAIR NOX allowances (if any) allocated for the 
control period to the CAIR NOX 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 CAIR NOX 
allowances remain in the new unit set-aside for the control period, the 
permitting authority will allocate to each CAIR NOX unit that 
was allocated CAIR NOX allowances under paragraph (b) of this 
section an amount of CAIR NOX allowances equal to the total 
amount of such remaining unallocated CAIR NOX allowances, 
multiplied by the unit's allocation under paragraph (b) of this section, 
divided by 95 percent for a control period during 2009 through 2014, and 
97 percent for a control period during 2015 and thereafter, of the 
amount of tons of NOX emissions in the State trading budget 
under Sec. 96.140, and rounded to the nearest whole allowance as 
appropriate.

[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 allocated 
under Sec. 96.142, the permitting authority may allocate for the 
control period in 2009 up to the following amount of CAIR NOX 
allowances to CAIR NOX units in the respective 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

[[Page 754]]

 
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 achieves 
NOX emission reductions in 2007 and 2008 that are not 
necessary to comply with any State or federal emissions limitation 
applicable during such years, the CAIR designated representative of the 
unit may request early reduction credits, and allocation of CAIR 
NOX allowances from the compliance supplement pool under 
paragraph (a) of this section for such early reduction credits, in 
accordance with the following:
    (1) The owners and operators of such CAIR NOX unit shall 
monitor and report the NOX emissions rate and the heat input 
of the unit in accordance with subpart HH of this part in each control 
period for which early reduction credit is requested.
    (2) The CAIR designated representative of such CAIR NOX 
unit shall submit to the permitting authority by May 1, 2009 a request, 
in a format specified by the permitting authority, for allocation of an 
amount of CAIR NOX allowances from the compliance supplement 
pool not exceeding the sum of the amounts (in tons) of the unit's 
NOX emission reductions in 2007 and 2008 that are not 
necessary to comply with any State or federal emissions limitation 
applicable during such years, determined in accordance with subpart HH 
of this part.
    (c) For any CAIR NOX unit in the State whose compliance 
with the CAIR NOX emissions limitation for the control period 
in 2009 would create an undue risk to the reliability of electricity 
supply during such control period, the CAIR designated representative of 
the unit may request the allocation of CAIR NOX allowances 
from the compliance supplement pool under paragraph (a) of this section, 
in accordance with the following:
    (1) The CAIR designated representative of such CAIR NOX 
unit shall submit to the permitting authority by May 1, 2009 a request, 
in a format specified by the permitting authority, for allocation of an 
amount of CAIR NOX allowances from the compliance supplement 
pool not exceeding the minimum amount of CAIR NOX allowances 
necessary to remove such undue risk to the reliability of electricity 
supply.
    (2) In the request under paragraph (c)(1) of this section, the CAIR 
designated representative of such CAIR NOX unit shall 
demonstrate that, in the absence of allocation to the unit of the amount 
of CAIR NOX allowances requested, the unit's compliance with 
the CAIR NOX emissions limitation for the control period in 
2009 would create an undue risk to the reliability of electricity supply 
during such control period. This demonstration must include a showing 
that it would not be feasible for the owners and operators of the unit 
to:
    (i) Obtain a sufficient amount of electricity from other electricity 
generation facilities, during the installation of control technology at 
the unit for compliance with the CAIR NOX emissions 
limitation, to prevent such undue risk; or
    (ii) Obtain under paragraphs (b) and (d) of this section, or 
otherwise obtain, a sufficient amount of CAIR NOX allowances 
to prevent such undue risk.
    (d) The permitting authority will review each request under 
paragraph (b) or (c) of this section submitted by May 1, 2009 and will 
allocate CAIR NOX allowances for the control period in 2009 
to CAIR NOX units in the State and covered by such request as 
follows:
    (1) Upon receipt of each such request, the permitting authority will 
make any necessary adjustments to the request to ensure that the amount 
of the CAIR NOX allowances requested meets the requirements 
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 not less 
than the total amount of CAIR NOX allowances in all such 
requests (as adjusted under paragraph (d)(1) of this section), the 
permitting authority will allocate to each

[[Page 755]]

CAIR NOX unit covered by such requests the amount of CAIR 
NOX allowances requested (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 NOX allowances than 
the total amount of CAIR NOX allowances in all such requests 
(as adjusted under paragraph (d)(1) of this section), the permitting 
authority will allocate CAIR NOX allowances to each CAIR 
NOX unit covered by such requests according to the following 
formula and rounding to the nearest whole allowance as appropriate:

Unit's allocation = Unit's adjusted allocation x (State's compliance 
    supplement pool / Total adjusted allocations for all units)

Where:

    `Unit's allocation' is the amount of CAIR NOX allowances 
allocated to the unit from the State's compliance supplement pool. 
Unit's adjusted allocation'' is the amount of CAIR NOX 
allowances requested for the unit under paragraph (b) or (c) of this 
section, as adjusted under paragraph (d)(1) of this section. ``State's 
compliance supplement pool'' is the amount of CAIR NOX 
allowances in the State's compliance supplement pool. ``Total adjusted 
allocations for all units'' is the sum of the amounts of allocations 
requested for all units under paragraph (b) or (c) of this section, as 
adjusted 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 the 
allocations under paragraph (d)(4) of this section.

[70 FR 25339, May 12, 2005, as amended at 71 FR 25302 and 25383, Apr. 
28, 2006; 71 FR 74794, Dec. 13, 2006]



              Subpart FF_CAIR NOX Allowance Tracking System

    Source: 70 FR 25339, May 12, 2005, unless otherwise noted.



Sec. 96.150  [Reserved]



Sec. 96.151  Establishment of accounts.

    (a) Compliance accounts. Except as provided in Sec. 96.184(e), upon 
receipt of a complete certificate of representation under Sec. 96.113, 
the Administrator will establish a compliance account for the CAIR 
NOX source for which the certificate of representation was 
submitted unless the source already has a compliance account.
    (b) General accounts--(1) Application for general account. (i) Any 
person may apply to open a general account for the purpose of holding 
and transferring CAIR NOX allowances. An application for a 
general account may designate one and only one CAIR authorized account 
representative and one and only one alternate CAIR authorized account 
representative who may act on behalf of the CAIR authorized account 
representative. The agreement by which the alternate CAIR authorized 
account representative is selected shall include a procedure for 
authorizing the alternate CAIR authorized account representative to act 
in lieu of the CAIR authorized account representative.
    (ii) A complete application for a general account shall be submitted 
to the Administrator and shall include the following elements in a 
format prescribed by the Administrator:
    (A) Name, mailing address, e-mail address (if any), telephone 
number, and facsimile transmission number (if any) of the CAIR 
authorized account representative and any alternate CAIR authorized 
account representative;
    (B) Organization name and type of organization, if applicable;
    (C) A list of all persons subject to a binding agreement for the 
CAIR authorized account representative and any alternate CAIR authorized 
account representative to represent their ownership interest with 
respect to the CAIR NOX allowances held in the general 
account;
    (D) The following certification statement by the CAIR authorized 
account representative and any alternate CAIR authorized account 
representative: ``I certify that I was selected as the CAIR authorized 
account representative or the alternate CAIR authorized account 
representative, as applicable, by an

[[Page 756]]

agreement that is binding on all persons who have an ownership interest 
with respect to CAIR NOX allowances held in the general 
account. I certify that I have all the necessary authority to carry out 
my duties and responsibilities under the CAIR NOX Annual 
Trading Program on behalf of such persons and that each such person 
shall be fully bound by my representations, actions, inactions, or 
submissions and by any order or decision issued to me by the 
Administrator or a court regarding the general account.''
    (E) The signature of the CAIR authorized account representative and 
any alternate CAIR authorized account representative and the dates 
signed.
    (iii) Unless otherwise required by the permitting authority or the 
Administrator, documents of agreement referred to in the application for 
a general account shall not be submitted to the permitting authority or 
the Administrator. Neither the permitting authority nor the 
Administrator shall be under any obligation to review or evaluate the 
sufficiency of such documents, if submitted.
    (2) Authorization of CAIR authorized account representative and 
alternate CAIR authorized account representative. (i) Upon receipt by 
the Administrator of a complete application for a general account under 
paragraph (b)(1) of this section:
    (A) The Administrator will establish a general account for the 
person or persons for whom the application is submitted.
    (B) The CAIR authorized account representative and any alternate 
CAIR authorized account representative for the general account shall 
represent and, by his or her representations, actions, inactions, or 
submissions, legally bind each person who has an ownership interest with 
respect to CAIR NOX allowances held in the general account in 
all matters pertaining to the CAIR NOX Annual Trading 
Program, notwithstanding any agreement between the CAIR authorized 
account representative or any alternate CAIR authorized account 
representative and such person. Any such person shall be bound by any 
order or decision issued to the CAIR authorized account representative 
or any alternate CAIR authorized account representative by the 
Administrator or a court regarding the general account.
    (C) Any representation, action, inaction, or submission by any 
alternate CAIR authorized account representative shall be deemed to be a 
representation, action, inaction, or submission by the CAIR authorized 
account representative.
    (ii) Each submission concerning the general account shall be 
submitted, signed, and certified by the CAIR authorized account 
representative or any alternate CAIR authorized account representative 
for the persons having an ownership interest with respect to CAIR 
NOX allowances held in the general account. Each such 
submission shall include the following certification statement by the 
CAIR authorized account representative or any alternate CAIR authorized 
account representative: ``I am authorized to make this submission on 
behalf of the persons having an ownership interest with respect to the 
CAIR NOX allowances held in the general account. I certify 
under penalty of law that I have personally examined, and am familiar 
with, the statements and information submitted in this document and all 
its attachments. Based on my inquiry of those individuals with primary 
responsibility for obtaining the information, I certify that the 
statements and information are to the best of my knowledge and belief 
true, accurate, and complete. I am aware that there are significant 
penalties for submitting false statements and information or omitting 
required statements and information, including the possibility of fine 
or imprisonment.''
    (iii) The Administrator will accept or act on a submission 
concerning the general account only if the submission has been made, 
signed, and certified in accordance with paragraph (b)(2)(ii) of this 
section.
    (3) Changing CAIR authorized account representative and alternate 
CAIR authorized account representative; changes in persons with 
ownership interest. (i) The CAIR authorized account representative for a 
general account may be changed at any time upon receipt by the 
Administrator of a superseding

[[Page 757]]

complete application for a general account under paragraph (b)(1) of 
this section. Notwithstanding any such change, all representations, 
actions, inactions, and submissions by the previous CAIR authorized 
account representative before the time and date when the Administrator 
receives the superseding application for a general account shall be 
binding on the new CAIR authorized account representative and the 
persons with an ownership interest with respect to the CAIR 
NOX allowances in the general account.
    (ii) The alternate CAIR authorized account representative for a 
general account may be changed at any time upon receipt by the 
Administrator of a superseding complete application for a general 
account under paragraph (b)(1) of this section. Notwithstanding any such 
change, all representations, actions, inactions, and submissions by the 
previous alternate CAIR authorized account representative before the 
time and date when the Administrator receives the superseding 
application for a general account shall be binding on the new alternate 
CAIR authorized account representative and the persons with an ownership 
interest with respect to the CAIR NOX allowances in the 
general account.
    (iii)(A) In the event a person having an ownership interest with 
respect to CAIR NOX allowances in the general account is not 
included in the list of such persons in the application for a general 
account, such person shall be deemed to be subject to and bound by the 
application for a general account, the representation, actions, 
inactions, and submissions of the CAIR authorized account representative 
and any alternate CAIR authorized account representative of the account, 
and the decisions and orders of the Administrator or a court, as if the 
person were included in such list.
    (B) Within 30 days following any change in the persons having an 
ownership interest with respect to CAIR NOX allowances in the 
general account, including the addition of a new person, the CAIR 
authorized account representative or any alternate CAIR authorized 
account representative shall submit a revision to the application for a 
general account amending the list of persons having an ownership 
interest with respect to the CAIR NOX allowances in the 
general account to include the change.
    (4) Objections concerning CAIR authorized account representative and 
alternate CAIR authorized account representative. (i) Once a complete 
application for a general account under paragraph (b)(1) of this section 
has been submitted and received, the Administrator will rely on the 
application unless and until a superseding 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)(3)(i) or (ii) of this 
section, no objection or other communication submitted to the 
Administrator concerning the authorization, or any representation, 
action, inaction, or submission of the CAIR authorized account 
representative or any alternate CAIR authorized account representative 
for a general account shall affect any representation, action, inaction, 
or submission of the CAIR authorized account representative or any 
alternate CAIR authorized account representative or the finality of any 
decision or order by the Administrator under the CAIR NOX 
Annual Trading Program.
    (iii) The Administrator will not adjudicate any private legal 
dispute concerning the authorization or any representation, action, 
inaction, or submission of the CAIR authorized account representative or 
any alternate CAIR authorized account representative for a general 
account, including private legal disputes concerning the proceeds of 
CAIR NOX allowance transfers.
    (c) Account identification. The Administrator will assign a unique 
identifying number to each account established under paragraph (a) or 
(b) of this section.
    (5) Delegation by CAIR authorized account representative and 
alternate CAIR authorized account representative. (i) A CAIR authorized 
account representative may delegate, to one or more natural persons, his 
or her authority to make an electronic submission to the Administrator 
provided for or required under subparts FF and GG of this part.

[[Page 758]]

    (ii) An alternate CAIR authorized account representative may 
delegate, to one or more natural persons, his or her authority to make 
an electronic submission to the Administrator provided for or required 
under subparts FF and GG of this part.
    (iii) In order to delegate authority to make an electronic 
submission to the Administrator in accordance with paragraph (b)(5)(i) 
or (ii) of this section, the CAIR authorized account representative or 
alternate CAIR authorized account representative, as appropriate, must 
submit to the Administrator a notice of delegation, in a format 
prescribed by the Administrator, that includes the following elements:
    (A) The name, address, e-mail address, telephone number, and 
facsimile transmission number (if any) of such CAIR authorized account 
representative 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 of 
electronic submissions under paragraph (b)(5)(i) or (ii) of this section 
for which authority is delegated to him or her;
    (D) The following certification statement by such CAIR authorized 
account representative or alternate CAIR authorized account 
representative: ``I agree that any electronic submission to the 
Administrator that is by an agent identified in this notice of 
delegation and of a type listed for such agent in this notice of 
delegation and that is made when I am a CAIR authorized account 
representative or alternate CAIR authorized representative, as 
appropriate, and before this notice of delegation is superseded by 
another notice of delegation under 40 CFR 96.151(b)(5)(iv) shall be 
deemed to be an electronic submission by me.''; and
    (E) The following certification statement by such CAIR authorized 
account representative or alternate CAIR authorized account 
representative: ``Until this notice of delegation is superseded by 
another notice of delegation under 40 CFR 96.151 (b)(5)(iv), I agree to 
maintain an e-mail account and to notify the Administrator immediately 
of any change in my e-mail address unless all delegation of 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 authorized 
account representative or alternate CAIR authorized account 
representative identified in such notice, upon receipt of such notice by 
the Administrator and until receipt by the Administrator of a 
superseding notice of delegation submitted by such CAIR authorized 
account representative or alternate CAIR authorized account 
representative, as appropriate. The superseding notice of delegation may 
replace any previously identified agent, add a new agent, or eliminate 
entirely any delegation of authority.
    (v) Any electronic submission covered by the certification in 
paragraph (b)(5)(iii)(D) of this section and made in accordance with a 
notice of delegation effective under paragraph (b)(5)(iv) of this 
section shall be deemed to be an electronic submission by the CAIR 
designated representative or alternate CAIR designated representative 
submitting 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 Allowance 
Tracking System account, all submissions to the Administrator pertaining 
to the account, including, but not limited to, submissions concerning 
the deduction or transfer of CAIR NOX allowances in the 
account, shall be made only by the CAIR authorized account 
representative for the account.



Sec. 96.153  Recordation of CAIR NOX allowance allocations.

    (a) By September 30, 2007, the Administrator will record in the CAIR 
NOX source's compliance account the CAIR NOX 
allowances allocated for the CAIR NOX units at the source, as 
submitted

[[Page 759]]

by the permitting authority in accordance with Sec. 96.141(a), for the 
control periods in 2009, 2010, 2011, 2012, 2013, and 2014.
    (b) By December 1, 2009, the Administrator will record in the CAIR 
NOX source's compliance account the CAIR NOX 
allowances allocated for the CAIR NOX units at the source, as 
submitted by the permitting authority in accordance with Sec. 
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's compliance 
account the CAIR NOX allowances allocated for the CAIR 
NOX units at the source, as submitted by the permitting 
authority in accordance with Sec. 96.141(b), for the control period in 
the sixth year after the year of the applicable deadline 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's compliance 
account the CAIR NOX allowances allocated for the CAIR 
NOX units at the source, as submitted by the permitting 
authority or determined by the Administrator in accordance with Sec. 
96.141(c), for the control period in the year of the applicable deadline 
for recordation under this paragraph.
    (e) Serial numbers for allocated CAIR NOX allowances. When recording 
the allocation of CAIR NOX allowances for a CAIR 
NOX unit in a compliance account, the Administrator will 
assign each CAIR NOX allowance a unique identification number 
that will include digits identifying the year of the control period for 
which the 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 not be incorporated due to 
inaccurate amendatory instruction.



Sec. 96.154  Compliance with CAIR NOX emissions limitation.

    (a) Allowance transfer deadline. The CAIR NOX allowances 
are available to be deducted for compliance with a source's CAIR 
NOX emissions limitation for a control period in a given 
calendar year only if the CAIR NOX allowances:
    (1) Were allocated for the control period in the year or a prior 
year; and
    (2) Are held in the compliance account as of the allowance transfer 
deadline for the control period or are transferred into the compliance 
account by a CAIR NOX allowance transfer correctly submitted 
for recordation under Sec. Sec. 96.160 and 96.161 by the allowance 
transfer deadline for the control period.
    (b) Deductions for compliance. Following the recordation, in 
accordance with Sec. 96.161, of CAIR NOX allowance transfers 
submitted for recordation in a source's compliance account by the 
allowance transfer deadline for a control period, the Administrator will 
deduct from the compliance account CAIR NOX allowances 
available under paragraph (a) of this section in order to determine 
whether the source meets the CAIR NOX emissions limitation 
for the control period, as follows:
    (1) Until the amount of CAIR NOX allowances deducted 
equals the number of tons of total nitrogen oxides emissions, determined 
in accordance with subpart HH of this part, from all CAIR NOX 
units at the source for the control period; or
    (2) If there are insufficient CAIR NOX allowances to 
complete the deductions in paragraph (b)(1) of this section, until no 
more CAIR NOX allowances available under paragraph (a) of 
this section remain in the compliance account.
    (c)(1) Identification of CAIR NOX allowances by serial number. The 
CAIR authorized account representative for a source's compliance account 
may request that specific CAIR NOX allowances, identified by 
serial number, in the compliance account be deducted for emissions or 
excess emissions for a control period in accordance with paragraph (b) 
or (d) of this section. Such request shall be submitted to the 
Administrator by the allowance transfer deadline for the control period 
and include, in a format prescribed by the Administrator, the 
identification of the CAIR NOX source and the appropriate 
serial numbers.
    (2) First-in, first-out. The Administrator will deduct CAIR 
NOX allowances under paragraph (b) or (d) of this section 
from the source's compliance

[[Page 760]]

account, in the absence of an identification or in the case of a partial 
identification of CAIR NOX allowances by serial number under 
paragraph (c)(1) of this section, on a first-in, first-out (FIFO) 
accounting basis in the following order:
    (i) Any CAIR NOX allowances that were allocated to the 
units at the source, in the order of recordation; and then
    (ii) Any CAIR NOX allowances that were allocated to any 
entity and transferred and recorded in the compliance account pursuant 
to subpart GG of this part, in the order of recordation.
    (d) Deductions for excess emissions. (1) After making the deductions 
for compliance under paragraph (b) of this section for a control period 
in a calendar year in which the CAIR NOX source has excess 
emissions, the Administrator will deduct from the source's compliance 
account an amount of CAIR NOX allowances, allocated for the 
control period in the immediately following calendar year, equal to 3 
times the number of tons of the source's excess emissions.
    (2) Any allowance deduction required under paragraph (d)(1) of this 
section shall not affect the liability of the owners and operators of 
the CAIR NOX source or the CAIR NOX units at the 
source for any fine, penalty, or assessment, or their obligation to 
comply with any other remedy, for the same violations, as ordered under 
the Clean Air Act or applicable State law.
    (e) Recordation of deductions. The Administrator will record in the 
appropriate compliance account all deductions from such an account under 
paragraphs (b) and (d) of this section and subpart II.
    (f) Administrator's action on submissions. (1) The Administrator may 
review and conduct independent audits concerning any submission under 
the CAIR NOX Annual Trading Program and make appropriate 
adjustments of the information in the submissions.
    (2) The Administrator may deduct CAIR NOX allowances from 
or transfer CAIR NOX allowances to a source's compliance 
account based on the information in the submissions, as adjusted under 
paragraph (f)(1) of this section, and record such deductions 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 use or 
transfer in a compliance account or a general account in accordance with 
paragraph (b) of this section.
    (b) Any CAIR NOX allowance that is held in a compliance 
account or a general account will remain in such account unless and 
until the CAIR NOX allowance is deducted or transferred 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 or 
her own motion, correct any error in any CAIR NOX Allowance 
Tracking System account. Within 10 business days of making such 
correction, the Administrator will notify the CAIR authorized account 
representative for the account.



Sec. 96.157  Closing of general accounts.

    (a) The CAIR authorized account representative of a general account 
may submit to the Administrator a request to close the account, which 
shall include a correctly submitted allowance transfer under Sec. Sec. 
96.160 and 96.161 for any CAIR NOX allowances in the account 
to one or more other CAIR NOX Allowance Tracking System 
accounts.
    (b) If a general account has no allowance transfers in or out of the 
account for a 12-month period or longer and does not contain any CAIR 
NOX allowances, the Administrator may notify the CAIR 
authorized account representative for the account that the account will 
be closed following 20 business days after the notice is sent. The 
account will be closed after the 20-day period unless, before the end of 
the 20-day period, the Administrator receives a correctly submitted 
transfer of CAIR NOX allowances into the account under 
Sec. Sec. 96.160 and 96.161 or a statement submitted by the CAIR 
authorized account representative demonstrating to the

[[Page 761]]

satisfaction of the Administrator good cause as to why the account 
should 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 otherwise noted.



Sec. 96.160  Submission of CAIR NOX allowance transfers.

    A CAIR authorized account representative seeking recordation of a 
CAIR NOX allowance transfer shall submit the transfer to the 
Administrator. To be considered correctly submitted, the CAIR 
NOX allowance transfer shall include the following elements, 
in a format specified by the Administrator:
    (a) The account numbers for both the transferor and transferee 
accounts;
    (b) The serial number of each CAIR NOX allowance that is 
in the transferor account and is to be transferred; and
    (c) The name and signature of the CAIR authorized account 
representative of the transferor account and the date signed.



Sec. 96.161  EPA recordation.

    (a) Within 5 business days (except as provided in paragraph (b) of 
this section) of receiving a CAIR NOX allowance transfer, the 
Administrator will record a CAIR NOX allowance transfer by 
moving each CAIR NOX allowance from the transferor account to 
the transferee account as specified by the request, provided that:
    (1) The transfer is correctly submitted under Sec. 96.160; and
    (2) The transferor account includes each CAIR NOX 
allowance identified by serial number in the transfer.
    (b) A CAIR NOX allowance transfer that is submitted for 
recordation after the allowance transfer deadline for a control period 
and that includes any CAIR NOX allowances allocated for any 
control period before such allowance transfer deadline will not be 
recorded until after the Administrator completes the deductions under 
Sec. 96.154 for the control period immediately before such allowance 
transfer deadline.
    (c) Where a CAIR NOX allowance transfer submitted for 
recordation fails to meet the requirements of paragraph (a) of this 
section, the Administrator will not record such transfer.



Sec. 96.162  Notification.

    (a) Notification of recordation. Within 5 business days of 
recordation of a CAIR NOX allowance transfer under Sec. 
96.161, the Administrator will notify the CAIR authorized account 
representatives of both the transferor and transferee accounts.
    (b) Notification of non-recordation. Within 10 business days of 
receipt of a CAIR NOX allowance transfer that fails to meet 
the requirements of Sec. 96.161(a), the Administrator will notify the 
CAIR authorized account representatives of 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 a CAIR 
NOX allowance transfer for recordation following notification 
of non-recordation.



                   Subpart HH_Monitoring and Reporting

    Source: 70 FR 25339, May 12, 2005, unless otherwise noted.



Sec. 96.170  General requirements.

    The owners and operators, and to the extent applicable, the CAIR 
designated representative, of a CAIR NOX unit, shall comply 
with the monitoring, recordkeeping, and reporting requirements as 
provided in this subpart and in subpart H of part 75 of this chapter. 
For purposes of complying with such requirements, the definitions in 
Sec. 96.102 and in Sec. 72.2 of this chapter shall apply, and the 
terms ``affected unit,'' ``designated representative,'' and ``continuous 
emission monitoring system'' (or ``CEMS'') in part 75 of this chapter 
shall be deemed to refer to the terms ``CAIR NOX unit,'' 
``CAIR designated representative,'' and ``continuous emission monitoring 
system'' (or ``CEMS'') respectively, as defined in Sec. 96.102. The 
owner or operator of a unit that is not a CAIR NOX unit but 
that is monitored

[[Page 762]]

under Sec. 75.72(b)(2)(ii) of this chapter shall comply with the same 
monitoring, recordkeeping, and reporting requirements as a CAIR 
NOX unit.
    (a) Requirements for installation, certification, and data 
accounting. The owner or operator of each CAIR NOX unit 
shall:
    (1) Install all monitoring systems required under this subpart for 
monitoring NOX mass emissions and individual unit heat input 
(including all systems required to monitor NOX emission rate, 
NOX concentration, stack gas moisture content, stack gas flow 
rate, CO2 or O2 concentration, 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 under 
Sec. 96.171 and meet all other requirements of this subpart and part 75 
of this chapter applicable to the monitoring systems under paragraph 
(a)(1) of this section; and
    (3) Record, report, and quality-assure the data from the monitoring 
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 monitoring system 
certification and other requirements of paragraphs (a)(1) and (2) of 
this section on or before the following dates. The owner or operator 
shall record, report, and quality-assure the data from the monitoring 
systems under paragraph (a)(1) of this section on and after the 
following dates.
    (1) For the owner or operator of a CAIR NOX unit that 
commences commercial operation before July 1, 2007, by January 1, 2008.
    (2) For the owner or operator of a CAIR NOX unit that 
commences commercial operation on or after July 1, 2007, by the later of 
the following dates:
    (i) January 1, 2008; or
    (ii) 90 unit operating days or 180 calendar days, whichever occurs 
first, after the date on which the unit commences commercial operation.
    (3) For the owner or operator of a CAIR NOX unit for 
which construction of a new stack or flue or installation of add-on 
NOX emission controls is completed after the applicable 
deadline under paragraph (b)(1), (2), (4), or (5) of this section, by 90 
unit operating days or 180 calendar days, whichever occurs first, after 
the date on which emissions first exit to the atmosphere through the new 
stack or flue or add-on NOX emissions controls.
    (4) Notwithstanding the dates in paragraphs (b)(1) and (2) of this 
section, for the owner or operator of a unit for which a CAIR opt-in 
permit application is submitted and not withdrawn and a CAIR opt-in 
permit is not yet issued or denied under subpart II of this part, by the 
date specified in Sec. 96.184(b).
    (5) Notwithstanding the dates in paragraphs (b)(1) and (2) of this 
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 CAIR 
NOX opt-in unit enters the CAIR NOX Annual Trading 
Program as provided in Sec. 96.184(g).
    (c) Reporting data. The owner or operator of a CAIR NOX 
unit that does not meet the applicable compliance date set forth in 
paragraph (b) of this section for any monitoring system under paragraph 
(a)(1) of this section shall, for each such monitoring system, 
determine, record, and report maximum potential (or, as appropriate, 
minimum potential) values for NOX concentration, 
NOX emission rate, stack gas flow rate, stack gas moisture 
content, fuel flow rate, and any other parameters required to determine 
NOX mass emissions and 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, as applicable.
    (d) Prohibitions. (1) No owner or operator of a CAIR NOX 
unit shall use any alternative monitoring system, alternative reference 
method, or any other alternative to any requirement of this subpart 
without having obtained prior written approval in accordance with Sec. 
96.175.
    (2) No owner or operator of a CAIR NOX unit shall operate 
the unit so as to discharge, or allow to be discharged, NOX 
emissions to the atmosphere without accounting for all such emissions in 
accordance with the applicable provisions of this subpart and part 75 of 
this chapter.

[[Page 763]]

    (3) No owner or operator of a CAIR NOX unit shall disrupt 
the continuous emission monitoring system, any portion thereof, or any 
other approved emission monitoring method, and thereby avoid monitoring 
and recording NOX mass emissions discharged into the 
atmosphere or heat input, except for periods of recertification or 
periods when calibration, quality assurance testing, or maintenance is 
performed in accordance with the applicable provisions of this subpart 
and part 75 of this chapter.
    (4) No owner or operator of a CAIR NOX unit shall retire 
or permanently discontinue use of the continuous emission monitoring 
system, any component thereof, or any other approved monitoring system 
under this subpart, except under any one of the following circumstances:
    (i) During the period that the unit is covered by an exemption under 
Sec. 96.105 that is in effect;
    (ii) The owner or operator is monitoring emissions from the unit 
with another certified monitoring system approved, in accordance with 
the applicable provisions of this subpart and part 75 of this chapter, 
by the permitting authority for use at that unit that provides emission 
data for the same pollutant or parameter as the retired or discontinued 
monitoring system; or
    (iii) The CAIR designated representative submits notification of the 
date of certification testing of a replacement monitoring system for the 
retired or discontinued monitoring system in accordance with Sec. 
96.171(d)(3)(i).
    (e) Long-term cold storage. The owner or operator of a CAIR 
NOX unit is subject to the applicable provisions of part 75 
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 be 
exempt from the initial certification requirements of this section for a 
monitoring system under Sec. 96.170(a)(1) if the following conditions 
are met:
    (1) The monitoring system has been previously certified in 
accordance with part 75 of this chapter; and
    (2) The applicable quality-assurance and quality-control 
requirements of Sec. 75.21 of this chapter and appendix B, appendix D, 
and appendix E to part 75 of this chapter are fully met for the 
certified monitoring system described in paragraph (a)(1) of this 
section.
    (b) The recertification provisions of this section shall apply to a 
monitoring system under Sec. 96.170(a)(1) exempt from initial 
certification requirements under paragraph (a) of this section.
    (c) If the Administrator has previously approved a petition under 
Sec. 75.17(a) or (b) of this chapter for apportioning the 
NOX emission rate measured in a common stack or a petition 
under Sec. 75.66 of this chapter for an alternative to a requirement in 
Sec. 75.12 or Sec. 75.17 of this chapter, the CAIR designated 
representative shall resubmit the petition to the Administrator under 
Sec. 96.175(a) to determine whether the approval applies under the CAIR 
NOX Annual Trading Program.
    (d) Except as provided in paragraph (a) of this section, the owner 
or operator of a CAIR NOX unit shall comply with the 
following initial certification and recertification procedures for a 
continuous monitoring system (i.e., a continuous emission monitoring 
system and an excepted monitoring system under appendices D and 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 mass emissions excepted 
monitoring methodology under Sec. 75.19 of this chapter or that 
qualifies to use an alternative monitoring system under subpart E of 
part 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 or operator 
shall ensure that each continuous monitoring system under Sec. 
96.170(a)(1)(including the automated data acquisition and handling 
system) successfully completes all of the initial certification testing 
required under Sec. 75.20 of this chapter by the applicable deadline in 
Sec. 96.170(b). In addition, whenever the owner or operator installs a 
monitoring system to

[[Page 764]]

meet the requirements of this subpart in a location where no such 
monitoring system was previously installed, initial certification in 
accordance with Sec. 75.20 of this chapter is required.
    (2) Requirements for recertification. Whenever the owner or operator 
makes a replacement, modification, or change in any certified continuous 
emission monitoring system under Sec. 96.170(a)(1) that may 
significantly affect the ability of the system to accurately measure or 
record NOX mass emissions or heat input rate or to meet the 
quality-assurance and quality-control requirements of Sec. 75.21 of 
this chapter or appendix B to part 75 of this chapter, the owner or 
operator shall recertify the monitoring system 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's operation that may significantly change the stack 
flow or concentration profile, the owner or operator shall recertify 
each continuous emission monitoring system whose accuracy is potentially 
affected by the change, in accordance with Sec. 75.20(b) of this 
chapter. Examples of changes to a continuous emission monitoring system 
that require recertification include replacement of the analyzer, 
complete replacement of an existing continuous emission monitoring 
system, or change in location or orientation of the sampling probe or 
site. Any fuel flowmeter system, and any excepted NOX 
monitoring system under appendix E to part 75 of this chapter, under 
Sec. 96.170(a)(1) are subject to the recertification requirements in 
Sec. 75.20(g)(6) of this chapter.
    (3) Approval process for initial certification and recertification. 
Paragraphs (d)(3)(i) through (iv) of this section apply to both initial 
certification and recertification of a continuous monitoring system 
under Sec. 96.170(a)(1). For recertifications, 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 designated 
representative shall submit to the permitting authority, the appropriate 
EPA Regional Office, and the Administrator written notice of the dates 
of certification testing, in accordance with Sec. 96.173.
    (ii) Certification application. The CAIR designated representative 
shall submit to the permitting authority a certification application for 
each monitoring system. A complete certification application shall 
include the information specified in Sec. 75.63 of this chapter.
    (iii) Provisional certification date. The provisional certification 
date for a monitoring system shall be determined in accordance with 
Sec. 75.20(a)(3) of this chapter. A provisionally certified monitoring 
system may be used under the CAIR NOX Annual Trading Program 
for a period not to exceed 120 days after receipt by the permitting 
authority of the complete certification application for the monitoring 
system under paragraph (d)(3)(ii) of this section. Data measured and 
recorded by the provisionally certified monitoring system, in accordance 
with the requirements of part 75 of this chapter, will be considered 
valid quality-assured data (retroactive to the date and time of 
provisional certification), provided that the permitting authority does 
not invalidate the provisional certification by issuing a notice of 
disapproval within 120 days of the date of receipt of the complete 
certification application by the permitting authority.
    (iv) Certification application approval process. The permitting 
authority will issue a written notice of approval or disapproval of the 
certification application to the owner or operator within 120 days of 
receipt of the complete certification application under paragraph 
(d)(3)(ii) of this section. In the event the permitting authority does 
not issue such a notice within such 120-day period, each monitoring 
system that meets the applicable performance requirements of part 75 of 
this chapter and is included in the certification application will be 
deemed certified for use under the CAIR NOX Annual Trading 
Program.
    (A) Approval notice. If the certification application is complete 
and shows that each monitoring system

[[Page 765]]

meets the applicable performance requirements of part 75 of this 
chapter, then the permitting authority will issue a written notice of 
approval of the certification application within 120 days of receipt.
    (B) Incomplete application notice. If the certification application 
is not complete, then the permitting authority will issue a written 
notice of incompleteness that sets a reasonable date by which the CAIR 
designated representative must submit the additional information 
required to complete the certification application. If the CAIR 
designated representative does not comply with the notice of 
incompleteness by the specified date, then the permitting authority may 
issue a notice of disapproval under paragraph (d)(3)(iv)(C) of this 
section. The 120-day review period shall not begin before receipt of a 
complete certification application.
    (C) Disapproval notice. If the certification application shows that 
any monitoring system does not meet the performance requirements of part 
75 of this chapter or if the certification application is incomplete and 
the requirement for disapproval under paragraph (d)(3)(iv)(B) of this 
section is met, then the permitting authority will issue a written 
notice of disapproval of the certification application. Upon issuance of 
such notice of disapproval, the provisional certification is invalidated 
by the permitting authority and the data measured and recorded by each 
uncertified monitoring system shall not be considered valid quality-
assured data beginning with the date and hour of provisional 
certification (as defined under Sec. 75.20(a)(3) of this chapter). The 
owner or operator shall follow the procedures for loss of certification 
in paragraph (d)(3)(v) of this section for each monitoring system that 
is disapproved for initial certification.
    (D) Audit decertification. The permitting authority or, for a CAIR 
NOX opt-in unit or a unit for which a CAIR opt-in permit 
application is submitted and not withdrawn and a CAIR opt-in permit is 
not yet issued or denied under subpart II of this part, the 
Administrator may issue a notice of disapproval of the certification 
status of a monitor in accordance with Sec. 96.172(b).
    (v) Procedures for loss of certification. If the permitting 
authority or the Administrator issues a notice of disapproval of a 
certification application under paragraph (d)(3)(iv)(C) of this section 
or a notice of 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 unit operation 
during the period of invalid data specified under Sec. 
75.20(a)(4)(iii), Sec. 75.20(g)(7), or Sec. 75.21(e) of this chapter 
and continuing until the applicable 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 potential NOX 
emission rate, as defined in Sec. 72.2 of this chapter.
    (2) For a disapproved NOX pollutant concentration monitor 
and disapproved flow monitor, respectively, the maximum potential 
concentration of NOX and the maximum potential flow rate, as 
defined in sections 2.1.2.1 and 2.1.4.1 of appendix A to part 75 of this 
chapter.
    (3) For a disapproved moisture monitoring system and disapproved 
diluent gas monitoring system, respectively, the minimum potential 
moisture percentage and either the maximum potential CO2 
concentration or the minimum potential O2 concentration (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 maximum potential 
fuel flow rate, as defined in section 2.4.2.1 of appendix D to part 75 
of this chapter.
    (5) For a disapproved excepted NOX monitoring system 
under appendix E to part 75 of this chapter, the fuel-specific maximum 
potential NOX emission rate, as defined in Sec. 72.2 of this 
chapter.
    (B) The CAIR designated representative shall submit a notification 
of certification retest dates and a new certification application in 
accordance with paragraphs (d)(3)(i) and (ii) of this section.
    (C) The owner or operator shall repeat all certification tests or 
other requirements that were failed by the

[[Page 766]]

monitoring system, as indicated in the permitting authority's or the 
Administrator's notice of disapproval, no later than 30 unit operating 
days after the date of issuance of the notice of disapproval.
    (e) Initial certification and recertification procedures for units 
using the low mass emission excepted methodology under Sec. 75.19 of 
this chapter. The owner or operator of a unit qualified to use the low 
mass emissions (LME) excepted methodology under Sec. 75.19 of this 
chapter shall meet the applicable certification and recertification 
requirements in Sec. Sec. 75.19(a)(2) and 75.20(h) of this chapter. If 
the owner or operator of such a unit elects to certify a fuel flowmeter 
system for heat input determination, the owner or operator shall also 
meet the certification and recertification requirements in Sec. 
75.20(g) of this chapter.
    (f) Certification/recertification procedures for alternative 
monitoring systems. The CAIR designated representative of each unit for 
which the owner or operator intends to use an alternative monitoring 
system approved by the Administrator and, if applicable, the permitting 
authority under subpart E of part 75 of this chapter shall comply with 
the applicable notification and application procedures 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 validation 
requirements of part 75 of this chapter, data shall be substituted using 
the applicable missing data procedures in subpart D or subpart H of, or 
appendix D or appendix E to, part 75 of this chapter.
    (b) Audit decertification. Whenever both an audit of a monitoring 
system and a review of the initial certification or recertification 
application reveal that any monitoring system should not have been 
certified or recertified because it did not meet a particular 
performance specification or other requirement under Sec. 96.171 or the 
applicable provisions of part 75 of this chapter, both at the time of 
the initial certification or recertification application submission and 
at the time of the audit, the permitting authority or, for a CAIR 
NOX opt-in unit or a unit for which a CAIR opt-in permit 
application is submitted and not withdrawn and a CAIR opt-in permit is 
not yet issued or denied under subpart II of this part, the 
Administrator will issue a notice of disapproval of the certification 
status of such monitoring system. For the purposes of this paragraph, an 
audit shall be either a field audit or an audit of any information 
submitted to the permitting authority or the Administrator. By issuing 
the notice of disapproval, the permitting authority or the Administrator 
revokes prospectively the certification status of the monitoring system. 
The data measured and recorded by the monitoring system shall not be 
considered valid quality-assured data from the date of issuance of the 
notification of the revoked certification status until the date and time 
that the owner or operator completes subsequently approved initial 
certification or recertification tests for the monitoring system. The 
owner or operator shall follow the applicable initial certification or 
recertification procedures in Sec. 96.171 for each disapproved 
monitoring system.



Sec. 96.173  Notifications.

    The CAIR designated representative for a CAIR NOX unit 
shall submit written notice to the permitting authority and the 
Administrator 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 representative shall 
comply with all recordkeeping and reporting requirements in this 
section, the applicable recordkeeping and reporting requirements under 
Sec. 75.73 of this chapter, and the requirements of Sec. 96.110(e)(1).
    (b) Monitoring Plans. The owner or operator of a CAIR NOX 
unit shall comply with requirements of Sec. 75.73(c) and (e) of this 
chapter and, for a unit for which a CAIR opt-in permit application is 
submitted and not withdrawn and a CAIR

[[Page 767]]

opt-in permit is not yet issued or denied under subpart II of this part, 
Sec. Sec. 96.183 and 96.184(a).
    (c) Certification Applications. The CAIR designated representative 
shall submit an application to the permitting authority within 45 days 
after completing all initial certification or recertification tests 
required under Sec. 96.171, including the information required under 
Sec. 75.63 of this chapter.
    (d) Quarterly reports. The CAIR designated representative shall 
submit quarterly reports, as follows:
    (1) The CAIR designated representative shall report the 
NOX mass emissions data and heat input data for the CAIR 
NOX unit, in an electronic quarterly report in a format 
prescribed by the Administrator, for each calendar quarter beginning 
with:
    (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 after July 
1, 2007, the calendar quarter corresponding to the earlier of the date 
of provisional certification or the applicable deadline for initial 
certification under Sec. 96.170(b), unless that quarter is the third or 
fourth quarter of 2007, in which case reporting shall commence in the 
quarter covering January 1, 2008 through March 31, 2008;
    (iii) Notwithstanding paragraphs (d)(1)(i) and (ii) of this section, 
for a unit for which a CAIR opt-in permit application is submitted and 
not withdrawn and a CAIR opt-in permit is not yet issued or denied under 
subpart II of this part, the calendar quarter corresponding to the date 
specified in Sec. 96.184(b); and
    (iv) Notwithstanding paragraphs (d)(1)(i) and (ii) of this section, 
for a CAIR NOX opt-in unit under subpart II of this part, the 
calendar quarter corresponding to the date on which the CAIR 
NOX opt-in unit enters the CAIR NOX Annual Trading 
Program as provided in Sec. 96.184(g).
    (2) The CAIR designated representative shall submit each quarterly 
report to the Administrator within 30 days following the end of the 
calendar quarter covered by the report. Quarterly reports shall be 
submitted in the manner specified in Sec. 75.73(f) of this chapter.
    (3) For CAIR NOX units that are also subject to an Acid 
Rain emissions limitation or the CAIR NOX Ozone Season 
Trading Program, CAIR SO2 Trading Program, or Hg Budget 
Trading Program, quarterly reports shall include the applicable data and 
information required by subparts F through I of part 75 of this chapter 
as applicable, in addition to the NOX mass emission data, 
heat input data, and other information required by this subpart.
    (e) Compliance certification. The CAIR designated representative 
shall submit to the Administrator a compliance certification (in a 
format prescribed by the Administrator) in support of each quarterly 
report based on reasonable inquiry of those persons with primary 
responsibility for ensuring that all of the unit's emissions are 
correctly and fully monitored. The certification shall state that:
    (1) The monitoring data submitted were recorded in accordance with 
the applicable requirements of this subpart and part 75 of this chapter, 
including the quality assurance procedures and specifications; and
    (2) For a unit with add-on NOX emission controls and for 
all hours where NOX data are substituted in accordance with 
Sec. 75.34(a)(1) of this chapter, the add-on emission controls were 
operating within the range of parameters listed in the quality 
assurance/quality control program under appendix B to part 75 of this 
chapter and the substitute data values do not systematically 
underestimate 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, the CAIR 
designated representative of a CAIR NOX unit that is subject 
to an Acid Rain emissions limitation may submit a petition under Sec. 
75.66 of this chapter to the Administrator requesting approval to apply 
an alternative to any requirement of this subpart. Application of an 
alternative to any requirement of this

[[Page 768]]

subpart is in accordance with this subpart only to the extent that the 
petition is approved in writing by the Administrator, in consultation 
with the permitting authority.
    (b)(1) The CAIR designated representative of a CAIR NOX 
unit that is not subject to an Acid Rain emissions limitation may submit 
a petition under Sec. 75.66 of this chapter to the permitting authority 
and the Administrator requesting approval to apply an alternative to any 
requirement of this subpart. Application of an alternative to any 
requirement of this subpart is in accordance with this subpart only to 
the extent that the petition is approved in writing by both the 
permitting authority and the Administrator.
    (2) The CAIR designated representative of a CAIR NOX unit 
that is subject to an Acid Rain emissions limitation may submit a 
petition under Sec. 75.66 of this chapter to the permitting authority 
and the Administrator requesting approval to apply an alternative to a 
requirement concerning any additional continuous emission monitoring 
system required under Sec. 75.72 of this chapter. Application of an 
alternative to any such requirement is in accordance with this subpart 
only to the extent that the petition is approved in writing by both the 
permitting authority and the Administrator.



                    Subpart II_CAIR NOX Opt-in Units

    Source: 70 FR 25339, May 12, 2005, unless otherwise noted.



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. 96.104 and is not 
covered by a retired unit exemption under Sec. 96.105 that is in 
effect;
    (c) Is not covered by a retired unit exemption under Sec. 72.8 of 
this chapter that is in effect;
    (d) Has or is required or qualified to have a title V operating 
permit or other federally enforceable permit; and
    (e) Vents all of its emissions to a stack and can meet the 
monitoring, recordkeeping, and reporting requirements of subpart HH of 
this part.



Sec. 96.181  General.

    (a) Except as otherwise provided in Sec. Sec. 96.101 through 
96.104, Sec. Sec. 96.106 through 96.108, and subparts BB and CC and 
subparts FF through HH of this part, a CAIR NOX opt-in unit 
shall be treated as a CAIR NOX unit 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 CAIR 
opt-in permit application is submitted and not withdrawn and a CAIR opt-
in permit is not yet issued or denied under this subpart, such unit 
shall be treated as a CAIR NOX unit before issuance of a CAIR 
opt-in permit for such unit.



Sec. 96.182  CAIR designated representative.

    Any CAIR NOX opt-in unit, and any unit for which a CAIR 
opt-in permit application is submitted and not withdrawn and a CAIR opt-
in permit is not yet issued or denied under this subpart, located at the 
same source as one or more CAIR NOX units shall have the same 
CAIR designated representative and alternate CAIR designated 
representative as such CAIR NOX units.



Sec. 96.183  Applying for CAIR opt-in permit.

    (a) Applying for initial CAIR opt-in permit. The CAIR designated 
representative of a unit meeting the requirements for a CAIR 
NOX opt-in unit in Sec. 96.180 may apply for an initial CAIR 
opt-in permit at any time, except as provided under Sec. 96.186(f) and 
(g), and, in order to apply, must submit the following:
    (1) A complete CAIR permit application under Sec. 96.122;
    (2) A certification, in a format specified by the permitting 
authority, that the unit:
    (i) Is not a CAIR NOX unit under Sec. 96.104 and is not 
covered by a retired unit exemption under Sec. 96.105 that is in 
effect;
    (ii) Is not covered by a retired unit exemption under Sec. 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 the 6

[[Page 769]]

months immediately preceding submission of the CAIR permit application 
under Sec. 96.122;
    (3) A monitoring plan in accordance with subpart HH of this part;
    (4) A complete certificate of representation under Sec. 96.113 
consistent with Sec. 96.182, if no CAIR designated representative has 
been previously designated for the source that includes the unit; and
    (5) A statement, in a format specified by the permitting authority, 
whether the CAIR designated representative requests that the unit be 
allocated CAIR NOX allowances under Sec. 96.188(b) or Sec. 
96.188(c) (subject to the conditions in Sec. Sec. 96.184(h) and 
96.186(g)). If allocation under Sec. 96.188(c) is requested, this 
statement shall include a statement that the owners and operators of the 
unit intend to repower 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 representative of a 
CAIR NOX opt-in unit shall submit a complete CAIR permit 
application under Sec. 96.122 to renew the CAIR opt-in unit permit in 
accordance with the permitting authority's regulations for title V 
operating permits, or the permitting authority's regulations for other 
federally enforceable permits if applicable, addressing permit renewal.
    (2) Unless the permitting authority issues a notification of 
acceptance of withdrawal of the CAIR NOX opt-in unit from the 
CAIR NOX Annual Trading Program in accordance with Sec. 
96.186 or the unit becomes a CAIR NOX unit under Sec. 
96.104, the CAIR NOX opt-in unit shall remain subject to the 
requirements for a CAIR NOX opt-in unit, even if the CAIR 
designated representative for the CAIR NOX opt-in unit fails 
to submit a CAIR permit application that 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 permit for 
a unit for which an initial application for a CAIR opt-in permit under 
Sec. 96.183 is submitted in accordance with the following:
    (a) Interim review of monitoring plan. The permitting authority and 
the Administrator will determine, on an interim basis, the sufficiency 
of the monitoring plan accompanying the initial application for a CAIR 
opt-in permit under Sec. 96.183. A monitoring plan is sufficient, for 
purposes of interim review, if the plan appears to contain information 
demonstrating that the NOX emissions rate and heat input of 
the unit and all other applicable parameters are monitored and reported 
in accordance with subpart HH of this part. A determination of 
sufficiency shall not be construed as acceptance or approval of the 
monitoring plan.
    (b) Monitoring and reporting. (1)(i) If the permitting authority and 
the Administrator determine that the monitoring plan is sufficient under 
paragraph (a) of this section, the owner or operator shall monitor and 
report the NOX emissions rate and the heat input of the unit 
and all other applicable parameters, in accordance with subpart HH of 
this part, starting on the date of certification of the appropriate 
monitoring systems under subpart HH of this part and continuing until a 
CAIR opt-in permit is denied under Sec. 96.184(f) or, if a CAIR opt-in 
permit is issued, the date and time when the unit is withdrawn from the 
CAIR NOX Annual Trading Program in accordance with Sec. 
96.186.
    (ii) The monitoring and reporting under paragraph (b)(1)(i) of this 
section shall include the entire control period immediately before the 
date on which the unit enters the CAIR NOX Annual Trading 
Program under Sec. 96.184(g), during which period monitoring system 
availability must not be less than 90 percent under subpart HH of this 
part and the unit must be in full compliance with any applicable State 
or Federal emissions or emissions-related requirements.
    (2) To the extent the NOX emissions rate and the heat 
input of the unit are monitored and reported in accordance with subpart 
HH of this part for one or more control periods, in addition to the 
control period under paragraph (b)(1)(ii) of this section, during which 
control periods monitoring system

[[Page 770]]

availability is not less than 90 percent under subpart HH of this part 
and the unit is in full compliance with any applicable State or Federal 
emissions or emissions-related requirements and which control periods 
begin not more than 3 years before the unit enters the CAIR 
NOX Annual Trading Program under Sec. 96.184(g), such 
information shall be used as provided in paragraphs (c) and (d) of this 
section.
    (c) Baseline heat input. The unit's baseline heat input shall equal:
    (1) If the unit's NOX emissions rate and heat input are 
monitored and reported for only one control period, in accordance with 
paragraph (b)(1) of this section, the unit's total heat input (in mmBtu) 
for the control period; or
    (2) If the unit's NOX emissions rate and heat input are 
monitored and reported for more than one control period, in accordance 
with paragraphs (b)(1) and (2) of this section, the average of the 
amounts of the unit's total heat input (in mmBtu) for the control 
periods under paragraphs (b)(1)(ii) and (2) of this section.
    (d) Baseline NOX emission rate. The unit's baseline 
NOX emission rate shall equal:
    (1) If the unit's NOX emissions rate and heat input are 
monitored and reported for only one control period, in accordance with 
paragraph (b)(1) of this section, the unit's NOX emissions 
rate (in lb/mmBtu) for the control period;
    (2) If the unit's NOX emissions rate and heat input are 
monitored and reported for more than one control period, in accordance 
with paragraphs (b)(1) and (2) of this section, and the unit does not 
have add-on NOX emission controls during any such control 
periods, the average of the amounts of the unit's NOX 
emissions rate (in lb/mmBtu) for the control periods under paragraphs 
(b)(1)(ii) and (2) of this section; or
    (3) If the unit's NOX emissions rate and heat input are 
monitored and reported for more than one control period, in accordance 
with paragraphs (b)(1) and (2) of this section, and the unit has add-on 
NOX emission controls during any such control periods, the 
average of the amounts of the unit's NOX emissions rate (in 
lb/mmBtu) for such control periods during which the unit has add-on 
NOX emission controls.
    (e) Issuance of CAIR opt-in permit. After calculating the baseline 
heat input and the baseline NOX emissions rate for the unit 
under paragraphs (c) and (d) of this section and if the permitting 
authority determines that the CAIR designated representative shows that 
the unit meets the requirements for a CAIR NOX opt-in unit in 
Sec. 96.180 and meets the elements certified in Sec. 96.183(a)(2), the 
permitting authority will issue a CAIR opt-in permit. The permitting 
authority will provide a copy of the CAIR opt-in permit to the 
Administrator, who will then establish a compliance account for the 
source that includes the CAIR NOX opt-in unit unless 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 any time before 
issuance of a CAIR opt-in permit for the unit, the permitting authority 
determines that the CAIR designated representative fails to show that 
the unit meets the requirements for a CAIR NOX opt-in unit in 
Sec. 96.180 or meets the elements certified in Sec. 96.183(a)(2), the 
permitting authority will issue a denial of a CAIR opt-in permit for the 
unit.
    (g) Date of entry into CAIR NOX Annual Trading Program. A 
unit for which an initial CAIR opt-in permit is issued by the permitting 
authority shall become a CAIR NOX opt-in unit, and a CAIR 
NOX unit, as of the later of January 1, 2009 or January 1 of 
the first control period during which such CAIR opt-in permit is issued.
    (h) Repowered CAIR NOX opt-in unit. (1) If CAIR 
designated representative requests, and the permitting authority issues 
a CAIR opt-in permit providing for, allocation to a CAIR NOX 
opt-in unit of CAIR NOX allowances under Sec. 96.188(c) and 
such unit is repowered after its date of entry into the CAIR 
NOX Annual Trading Program under paragraph (g) of this 
section, the repowered unit shall be treated as a CAIR NOX 
opt-in unit replacing the original CAIR NOX opt-in unit, as 
of the date of start-up of the repowered unit's combustion chamber.

[[Page 771]]

    (2) Notwithstanding paragraphs (c) and (d) of this section, as of 
the date of start-up under paragraph (h)(1) of this section, the 
repowered unit shall be deemed to have the same date of commencement of 
operation, date of commencement of commercial operation, baseline heat 
input, and baseline NOX emission rate as the original CAIR 
NOX opt-in unit, and the original CAIR NOX opt-in 
unit shall no longer be treated as a CAIR NOX 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 application 
under 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 under Sec. 
96.184(d);
    (5) A statement whether the unit is to be allocated CAIR 
NOX allowances Sec. 96.188(b) or Sec. 96.188(c) (subject to 
the conditions in Sec. Sec. 96.184(h) and 96.186(g));
    (6) A statement that the unit may withdraw from the CAIR 
NOX Annual Trading Program only in accordance with Sec. 
96.186; and
    (7) A statement that the unit is subject to, and the owners and 
operators of the unit must comply with, the requirements of Sec. 
96.187.
    (b) Each CAIR opt-in permit is deemed to incorporate automatically 
the definitions of terms under Sec. 96.102 and, upon recordation by the 
Administrator under subpart FF or GG of this part or this subpart, every 
allocation, transfer, or deduction of CAIR NOX allowances to 
or from the compliance account of the source that includes a CAIR 
NOX opt-in unit covered by the CAIR opt-in permit.
    (c) The CAIR opt-in permit shall be included, in a format specified 
by the permitting authority, in the CAIR permit for the source where the 
CAIR NOX opt-in unit is located and in a title V operating 
permit or other federally enforceable permit for the source.

[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 CAIR 
NOX opt-in unit may withdraw from the CAIR NOX 
Annual Trading Program, but only if the permitting authority issues a 
notification to the CAIR designated representative of the CAIR 
NOX opt-in unit of the acceptance of the withdrawal of the 
CAIR NOX opt-in unit in accordance with paragraph (d) of this 
section.
    (a) Requesting withdrawal. In order to withdraw a CAIR CAIR 
NOX opt-in unit from the CAIR NOX Annual Trading 
Program, the CAIR designated representative of the CAIR NOX 
opt-in unit shall submit to the permitting authority a request to 
withdraw effective as of midnight of December 31 of a specified calendar 
year, which date must be at least 4 years after December 31 of the year 
of entry into the CAIR NOX Annual Trading Program under Sec. 
96.184(g). The request must be submitted no later than 90 days before 
the requested effective date of withdrawal.
    (b) Conditions for withdrawal. Before a CAIR NOX opt-in 
unit covered by a request under paragraph (a) of this section may 
withdraw from the CAIR NOX Annual Trading Program and the 
CAIR opt-in permit may be terminated under paragraph (e) of this 
section, the following conditions must be met:
    (1) For the control period ending on the date on which the 
withdrawal is to be effective, the source that includes the CAIR 
NOX opt-in unit must meet the requirement to hold CAIR 
NOX allowances under Sec. 96.106(c) and cannot have any 
excess emissions.
    (2) After the requirement for withdrawal under paragraph (b)(1) of 
this section is met, the Administrator will deduct from the compliance 
account of the source that includes the CAIR NOX opt-in unit 
CAIR NOX allowances equal in amount to and allocated for the 
same or a prior control period as any CAIR NOX allowances 
allocated to the CAIR NOX opt-in unit under Sec. 96.188 for

[[Page 772]]

any control period for which the withdrawal is to be effective. If there 
are no remaining CAIR NOX units at the source, the 
Administrator will close the compliance account, and the owners and 
operators of the CAIR NOX opt-in unit may submit a CAIR 
NOX allowance transfer for any remaining CAIR NOX 
allowances to another CAIR NOX Allowance Tracking System in 
accordance with subpart GG of this part.
    (c) Notification. (1) After the requirements for withdrawal under 
paragraphs (a) and (b) of this section are met (including deduction of 
the full amount of CAIR NOX allowances required), the 
permitting authority will issue a notification to the CAIR designated 
representative of the CAIR NOX opt-in unit of the acceptance 
of the withdrawal of the CAIR NOX opt-in unit as of midnight 
on December 31 of the calendar year for which the withdrawal was 
requested.
    (2) If the requirements for withdrawal under paragraphs (a) and (b) 
of this section are not met, the permitting authority will issue a 
notification to the CAIR designated representative of the CAIR 
NOX opt-in unit that the CAIR NOX opt-in unit's 
request to withdraw is denied. Such CAIR NOX opt-in unit 
shall continue to be a CAIR NOX opt-in unit.
    (d) Permit amendment. After the permitting authority issues a 
notification under paragraph (c)(1) of this section that the 
requirements for withdrawal have been met, the permitting authority will 
revise the CAIR permit covering the CAIR NOX opt-in unit to 
terminate the CAIR opt-in permit for such unit as of the effective date 
specified under paragraph (c)(1) of this section. The unit shall 
continue to be a CAIR NOX opt-in unit until the effective 
date of the termination and shall comply with all requirements under the 
CAIR NOX Annual Trading Program concerning any control 
periods for which the unit is a CAIR NOX opt-in unit, even if 
such requirements arise or must be complied with after the withdrawal 
takes effect.
    (e) Reapplication upon failure to meet conditions of withdrawal. If 
the permitting authority denies the CAIR NOX opt-in unit's 
request to withdraw, the CAIR designated representative may submit 
another request to withdraw in accordance with paragraphs (a) and (b) of 
this section.
    (f) Ability to reapply to the CAIR NOX Annual Trading 
Program. Once a CAIR NOX opt-in unit withdraws from the CAIR 
NOX Annual Trading Program and its CAIR opt-in permit is 
terminated under this section, the CAIR designated representative may 
not submit another application for a CAIR opt-in permit under Sec. 
96.183 for such CAIR NOX opt-in unit before the date that is 
4 years after the date on which the withdrawal became effective. Such 
new application for a CAIR opt-in permit will be treated as an initial 
application for a CAIR opt-in permit under Sec. 96.184.
    (g) Inability to withdraw. Notwithstanding paragraphs (a) through 
(f) of this section, a CAIR NOX opt-in unit shall not be 
eligible to withdraw from the CAIR NOX Annual Trading Program 
if the CAIR designated representative of the CAIR NOX opt-in 
unit requests, and the permitting authority issues a CAIR NOX 
opt-in permit providing for, allocation to the CAIR NOX opt-
in unit of CAIR NOX allowances 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 unit becomes a 
CAIR NOX unit under Sec. 96.104, then the CAIR designated 
representative shall notify in writing the permitting authority and the 
Administrator of such change in the CAIR NOX opt-in unit's 
regulatory status, within 30 days of such change.
    (b) Permitting authority's and Administrator's actions. (1) If a 
CAIR NOX opt-in unit becomes a CAIR NOX unit under 
Sec. 96.104, the permitting authority will revise the CAIR 
NOX opt-in unit's CAIR opt-in permit to meet the requirements 
of a CAIR permit under Sec. 96.123, and remove the CAIR opt-in permit 
provisions, as of the date on which the CAIR NOX opt-in unit 
becomes a CAIR NOX unit under Sec. 96.104.
    (2)(i) The Administrator will deduct from the compliance account of 
the source that includes the CAIR NOX opt-in unit that 
becomes a CAIR NOX unit under Sec. 96.104, CAIR 
NOX allowances

[[Page 773]]

equal in amount to and allocated for the same or a prior control period 
as:
    (A) Any CAIR NOX allowances allocated to the CAIR 
NOX opt-in unit under Sec. 96.188 for any control period 
after the date on which the CAIR NOX opt-in unit becomes a 
CAIR NOX unit under Sec. 96.104; and
    (B) If the date on which the CAIR NOX opt-in unit becomes 
a CAIR NOX unit under Sec. 96.104 is not December 31, the 
CAIR NOX allowances allocated to the CAIR NOX opt-
in unit under Sec. 96.188 for the control period that includes the date 
on which the CAIR NOX opt-in unit becomes a CAIR 
NOX unit under Sec. 96.104, multiplied by the ratio of the 
number of days, in the control period, starting with the date on which 
the CAIR NOX opt-in unit becomes a CAIR NOX unit 
under Sec. 96.104 divided by the total number of days in the control 
period and rounded to the nearest whole allowance as appropriate.
    (ii) The CAIR designated representative shall ensure that the 
compliance account of the source that includes the CAIR NOX 
opt-in unit that becomes a CAIR NOX unit under Sec. 96.104 
contains the CAIR NOX allowances 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 CAIR 
NOX opt-in unit becomes a CAIR NOX unit under 
Sec. 96.104, the CAIR NOX opt-in unit will be allocated CAIR 
NOX allowances under Sec. 96.142.
    (ii) If the date on which the CAIR NOX opt-in unit 
becomes a CAIR NOX unit under Sec. 96.104 is not December 
31, the following amount of CAIR NOX allowances will be 
allocated to the CAIR NOX opt-in unit (as a CAIR 
NOX unit) under Sec. 96.142 for the control period that 
includes the date on which the CAIR NOX opt-in unit becomes a 
CAIR NOX unit under Sec. 96.104:
    (A) The amount of CAIR NOX allowances otherwise allocated 
to the CAIR NOX opt-in unit (as a CAIR NOX unit) 
under Sec. 96.142 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 opt-in unit becomes 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 NOX opt-in 

units.

    (a) Timing requirements. (1) When the CAIR opt-in permit is issued 
under Sec. 96.184(e), the permitting authority will allocate CAIR 
NOX allowances to the CAIR NOX opt-in unit, and 
submit to the Administrator the allocation for the control period in 
which a CAIR NOX opt-in unit enters the CAIR NOX 
Annual Trading Program under Sec. 96.184(g), in accordance with 
paragraph (b) or (c) of this section.
    (2) By no later than October 31 of the control period after the 
control period in which a CAIR NOX opt-in unit enters the 
CAIR NOX Annual Trading Program under Sec. 96.184(g) and 
October 31 of each year thereafter, the permitting authority will 
allocate CAIR NOX allowances to the CAIR NOX opt-
in unit, and submit to the Administrator the allocation for the control 
period that includes such submission deadline 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 for which a 
CAIR NOX opt-in unit is to be allocated CAIR NOX 
allowances, the permitting authority will allocate in accordance with 
the following procedures:
    (1) The heat input (in mmBtu) used for calculating the CAIR 
NOX allowance allocation will be the lesser of:
    (i) The CAIR NOX opt-in unit's baseline heat input 
determined under Sec. 96.184(c); or
    (ii) The CAIR NOX opt-in unit's heat input, as determined 
in accordance with subpart HH of this part, for the immediately prior 
control period, except when the allocation is being calculated for the 
control period in which the CAIR NOX opt-in unit enters the 
CAIR NOX Annual Trading Program under Sec. 96.184(g).
    (2) The NOX emission rate (in lb/mmBtu) used for 
calculating CAIR NOX allowance allocations will be the lesser 
of:

[[Page 774]]

    (i) The CAIR NOX opt-in unit's baseline NOX 
emissions rate (in lb/mmBtu) determined under Sec. 96.184(d) and 
multiplied by 70 percent; or
    (ii) The most stringent State or Federal NOX emissions 
limitation applicable to the CAIR NOX opt-in unit at any time 
during the control period for which CAIR NOX allowances are 
to be allocated.
    (3) The permitting authority will allocate CAIR NOX 
allowances to the CAIR NOX opt-in unit in an amount equaling 
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 nearest whole allowance as 
appropriate.
    (c) Notwithstanding paragraph (b) of this section and if the CAIR 
designated representative requests, and the permitting authority issues 
a CAIR opt-in permit (based on a demonstration of the intent to repower 
stated under Sec. 96.183(a)(5)) providing for, allocation to a CAIR 
NOX opt-in unit of CAIR NOX allowances under this 
paragraph (subject to the conditions in Sec. Sec. 96.184(h) and 
96.186(g)), the permitting authority will allocate to the CAIR 
NOX opt-in unit as follows:
    (1) For each control period in 2009 through 2014 for which the CAIR 
NOX opt-in unit is to be allocated CAIR NOX 
allowances,
    (i) The heat input (in mmBtu) used for calculating CAIR 
NOX allowance allocations will be determined as described in 
paragraph (b)(1) of this section.
    (ii) The NOX emission rate (in lb/mmBtu) used for 
calculating CAIR NOX allowance allocations will be the lesser 
of:
    (A) The CAIR NOX opt-in unit's baseline NOX 
emissions rate (in lb/mmBtu) determined under Sec. 96.184(d); or
    (B) The most stringent State or Federal NOX emissions 
limitation applicable to the CAIR NOX opt-in unit at any time 
during the control period in which the CAIR NOX opt-in unit 
enters the CAIR NOX Annual Trading Program under Sec. 
96.184(g).
    (iii) The permitting authority will allocate CAIR NOX 
allowances to the CAIR NOX opt-in unit in an amount equaling 
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 the nearest whole 
allowance as appropriate.
    (2) For each control period in 2015 and thereafter for which the 
CAIR NOX opt-in unit is to be allocated CAIR NOX 
allowances,
    (i) The heat input (in mmBtu) used for calculating the CAIR 
NOX allowance allocations will be determined as described in 
paragraph (b)(1) of this section.
    (ii) The NOX emission rate (in lb/mmBtu) used for 
calculating the CAIR NOX allowance allocation will be the 
lesser of:
    (A) 0.15 lb/mmBtu;
    (B) The CAIR NOX opt-in unit's baseline NOX 
emissions rate (in lb/mmBtu) determined under Sec. 96.184(d); or
    (C) The most stringent State or Federal NOX emissions 
limitation applicable to the CAIR NOX opt-in unit at any time 
during the control period for which CAIR NOX allowances are 
to be allocated.
    (iii) The permitting authority will allocate CAIR NOX 
allowances to the CAIR NOX opt-in unit in an amount equaling 
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 the nearest whole 
allowance as appropriate.
    (d) Recordation. (1) The Administrator will record, in the 
compliance account of the source that includes the CAIR NOX 
opt-in unit, the CAIR NOX allowances allocated 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 CAIR 
NOX opt-in unit enters the CAIR NOX Annual Trading 
Program under Sec. 96.184(g) and December 1 of each year thereafter, 
the Administrator will record, in the compliance account of the source 
that includes the CAIR NOX opt-in unit, the CAIR 
NOX allowances allocated by the permitting authority 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]

[[Page 775]]

Subparts JJ--ZZ [Reserved]



         Subpart AAA_CAIR SO2 Trading Program General Provisions

    Source: 70 FR 25362, May 12, 2005, unless otherwise noted.



Sec. 96.201  Purpose.

    This subpart and subparts BBB through III establish the model rule 
comprising general provisions and the designated representative, 
permitting, allowance, monitoring, and opt-in provisions for the State 
Clean Air Interstate Rule (CAIR) SO2 Trading Program, under 
section 110 of the Clean Air Act and Sec. 51.124 of this chapter, as a 
means of mitigating interstate transport of fine particulates and sulfur 
dioxide. The owner or operator of a unit or a source shall comply with 
the requirements of this subpart and subparts BBB through III as a 
matter of federal law only if the State with jurisdiction over the unit 
and the source incorporates by reference such subparts or otherwise 
adopts the requirements of such subparts in accordance with Sec. 
51.124(o)(1) or (2) of this chapter, the State submits to the 
Administrator one or more revisions of the State implementation plan 
that include such adoption, and the Administrator approves such 
revisions. If the State adopts the requirements of such subparts in 
accordance with Sec. 51.124(o)(1) or (2) of this chapter, then the 
State authorizes the Administrator to assist the State in implementing 
the CAIR SO2 Trading Program by carrying out the functions 
set forth for the Administrator in such subparts.



Sec. 96.202  Definitions.

    The terms used in this subpart and subparts BBB through III shall 
have the meanings set forth in this section as follows:
    Account number means the identification number given by the 
Administrator to each CAIR SO2 Allowance Tracking System 
account.
    Acid Rain emissions limitation means a limitation on emissions of 
sulfur dioxide or nitrogen oxides under the Acid Rain Program.
    Acid Rain Program means a multi-state sulfur dioxide and nitrogen 
oxides air pollution control and emission reduction program established 
by the Administrator under title IV of the CAA and parts 72 through 78 
of this chapter.
    Administrator means the Administrator of the United States 
Environmental Protection Agency or the Administrator's duly authorized 
representative.
    Allocate or allocation means, with regard to CAIR SO2 
allowances issued under the Acid Rain Program, the determination by the 
Administrator of the amount of such CAIR SO2 allowances to be 
initially credited to a CAIR SO2 unit or other entity and, 
with regard to CAIR SO2 allowances issued under provisions of 
a State implementation plan that are approved under Sec. 51.124(o)(1) 
or (2) or (r) of this chapter or Sec. 97.288 of this chapter, the 
determination by a permitting authority of the amount of such CAIR 
SO2 allowances to be initially credited 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 the first business day 
thereafter (if March 1 is not a business day), immediately following the 
control period and is the deadline by which a CAIR SO2 
allowance transfer must be submitted for recordation in a CAIR 
SO2 source's compliance account in order to be used to meet 
the source's CAIR SO2 emissions limitation for such control 
period in accordance with Sec. 96.254.
    Alternate CAIR designated representative means, for a CAIR 
SO2 source and each CAIR SO2 unit at the source, 
the natural person who is authorized by the owners and operators of the 
source and all such units at the source, in accordance with subparts BBB 
and III of this part, to act on behalf of the CAIR designated 
representative in matters pertaining to the CAIR SO2 Trading 
Program. If the CAIR SO2 source is also a CAIR NOX 
source, then this natural person shall be the same person as the 
alternate CAIR designated representative under the CAIR NOX 
Annual Trading Program. If the CAIR SO2 source is also a CAIR 
NOX Ozone Season source, then this natural person

[[Page 776]]

shall be the same person as the alternate CAIR designated representative 
under the CAIR NOX Ozone Season Trading Program. If the CAIR 
SO2 source is also subject to the Acid Rain Program, then 
this natural person shall be the same person as the alternate designated 
representative under the Acid Rain Program. If the CAIR SO2 
source is also subject to the Hg Budget Trading Program, then this 
natural person shall be the same person as the alternate Hg designated 
representative under the Hg Budget Trading Program.
    Automated data acquisition and handling system or DAHS means that 
component of the continuous emission monitoring system, or other 
emissions monitoring system approved for use under subpart HHH of this 
part, designed to interpret and convert individual output signals from 
pollutant concentration monitors, flow monitors, diluent gas monitors, 
and other component parts of the monitoring system to produce a 
continuous record of the measured parameters in the measurement units 
required by subpart HHH of this part.
    Biomass means--
    (1) Any organic material grown for the purpose of being converted to 
energy;
    (2) Any organic byproduct of agriculture that can be converted into 
energy; or
    (3) Any material that can be converted into energy and is 
nonmerchantable for other purposes, that is segregated from other 
nonmerchantable material, and that is;
    (i) A forest-related organic resource, including mill residues, 
precommercial thinnings, slash, brush, or byproduct from conversion 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-fired combustion 
device used to produce heat and to transfer heat to recirculating water, 
steam, or other medium.
    Bottoming-cycle cogeneration unit means a cogeneration unit in which 
the energy input to the unit is first used to produce useful thermal 
energy and at least some of the reject heat from the useful thermal 
energy application or process is then used for electricity production.
    CAIR authorized account representative means, with regard to a 
general account, a responsible natural person who is authorized, in 
accordance with subparts BBB, FFF, and III of this part, to transfer and 
otherwise dispose of CAIR SO2 allowances held in the general 
account and, with regard to a compliance account, the CAIR designated 
representative of the source.
    CAIR designated representative means, for a CAIR SO2 
source and each CAIR SO2 unit at the source, the natural 
person who is authorized by the owners and operators of the source and 
all such units at the source, in accordance with subparts BBB and III of 
this part, to represent and legally bind each owner and operator in 
matters pertaining to the CAIR SO2 Trading Program. If the 
CAIR SO2 source is also a CAIR NOX source, then 
this natural person shall be the same person as the CAIR designated 
representative under the CAIR NOX Annual Trading Program. If 
the CAIR SO2 source is also a CAIR NOX Ozone 
Season source, then this natural person shall be the same person as the 
CAIR designated representative under the CAIR NOX Ozone 
Season Trading Program. If the CAIR SO2 source is also 
subject to the Acid Rain Program, then this natural person shall be the 
same person as the designated representative under the Acid Rain 
Program. If the CAIR SO2 source is also subject to the Hg 
Budget Trading Program, then this natural person shall be the same 
person as the Hg designated representative under the Hg Budget Trading 
Program.
    CAIR NO X Annual Trading Program means a multi-state 
nitrogen oxides air pollution control and emission reduction program 
approved and administered by the Administrator in accordance with 
subparts AA through II of this part and Sec. 51.123(o)(1) or (2) of 
this chapter or established by the Administrator in accordance with 
subparts AA through II of part 97 of this chapter and

[[Page 777]]

Sec. Sec. 51.123(p) and 52.35 of this chapter, as a means of mitigating 
interstate transport of fine particulates and nitrogen oxides.
    CAIR NOX Ozone Season source means a source that includes one or 
more CAIR NOX Ozone Season units.
    CAIR NOX Ozone Season Trading Program means a multi-state nitrogen 
oxides air pollution control and emission reduction program approved and 
administered by the Administrator in accordance with subparts AAAA 
through IIII of this part and Sec. 51.123(aa)(1) or (2) (and (bb)(1)), 
(bb)(2), or (dd) of this chapter or established by the Administrator in 
accordance with subparts AA through II of part 97 of this chapter and 
Sec. Sec. 51.123(p) and 52.35 of this chapter, as a means of mitigating 
interstate transport of ozone and nitrogen oxides.
    CAIR NOX source means a source that is subject to the CAIR 
NOX Ozone Season Trading Program.
    CAIR permit means the legally binding and federally enforceable 
written document, or portion of such document, issued by the permitting 
authority under subpart CCC of this part, including any permit 
revisions, specifying the CAIR SO2 Trading Program 
requirements applicable to a CAIR SO2 source, to each CAIR 
SO2 unit at the source, and to the owners and operators and 
the CAIR designated representative of the source and each such unit.
    CAIR SO2 allowance means a limited authorization issued by the 
Administrator under the Acid Rain Program, or by a permitting authority 
under provisions of a State implementation plan that are approved under 
Sec. 51.124(o)(1) or (2) or (r) of this chapter or Sec. 97.288 of this 
chapter,'', by designating the last sentence of the definition as 
paragraph (4), and by revising in paragraph (4) the words ``(Program or 
under the provisions of a State implementation plan that is approved 
under Sec. 51.124(o)(1) or (2) of this chapter'' to read ``(Program, 
provisions of a State implementation plan that are approved under Sec. 
51.124(o)(1) or (2) or (r) of this chapter, or Sec. 97.288 of this 
chapter, to emit sulfur dioxide during the control period of the 
specified calendar year for which the authorization is allocated or of 
any calendar year thereafter under the CAIR SO2 Trading 
Program as follows:
    (1) For one CAIR SO2 allowance allocated for a control 
period in a year before 2010, one ton of sulfur dioxide, except as 
provided in Sec. 96.254(b);
    (2) For one CAIR SO2 allowance allocated for a control 
period in 2010 through 2014, 0.50 ton of sulfur dioxide, except as 
provided in Sec. 96.254(b); and
    (3) For one CAIR SO2 allowance allocated for a control 
period in 2015 or later, 0.35 ton of sulfur dioxide, except as provided 
in Sec. 96.254(b).
    An authorization to emit sulfur dioxide that is not issued under the 
Acid Rain Program or under the provisions of a State implementation 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 deduct CAIR SO2 allowances means the 
permanent withdrawal of CAIR SO2 allowances by the 
Administrator from a compliance account, e.g., in order to account for a 
specified number of tons of total sulfur dioxide emissions from all CAIR 
SO2 units at a CAIR SO2 source for a control 
period, determined in accordance with subpart HHH of this part, or to 
account for excess emissions.
    CAIR SO2 Allowance Tracking System means the system by which the 
Administrator records allocations, deductions, and transfers of CAIR 
SO2 allowances under the CAIR SO2 Trading Program. 
This is the same system as the Allowance Tracking System under Sec. 
72.2 of this chapter by which the Administrator records allocations, 
deduction, and transfers of Acid Rain SO2 allowances under 
the Acid Rain Program.
    CAIR SO2 Allowance Tracking System account means an account in the 
CAIR SO2 Allowance Tracking System established by the 
Administrator for purposes of recording the allocation, holding, 
transferring, or deducting of CAIR SO2 allowances. Such 
allowances will be allocated, held, deducted, or transferred only as 
whole allowances.
    CAIR SO2 allowances held or hold CAIR SO2 allowances means the CAIR 
SO2 allowances recorded by the Administrator, or submitted to 
the Administrator for recordation, in accordance

[[Page 778]]

with subparts FFF, GGG, and III of this part or part 73 of this chapter, 
in a CAIR SO2 Allowance Tracking System account.
    CAIR SO2 emissions limitation means, for a CAIR SO2 
source, the tonnage equivalent, in SO2 emissions in a control 
period, of the CAIR SO2 allowances available for deduction 
for the source under Sec. 96.254(a) and (b) for the control period.
    CAIR SO2 source means a source that includes one or more CAIR 
SO2 units.
    CAIR SO2 Trading Program means a multi-state sulfur dioxide air 
pollution control and emission reduction program approved and 
administered by the Administrator in accordance with subparts AAA 
through III of this part and Sec. 51.124(o)(1) or (2) of this chapter 
or established by the Administrator in accordance with subparts AAA 
through III of part 97 of this chapter and Sec. Sec. 51.124(r) and 
52.36 of this chapter, as a means of mitigating interstate transport of 
fine particulates and sulfur dioxide.
    CAIR SO2 unit means a unit that is subject to the CAIR 
SO2 Trading Program under Sec. 96.204 and, except for 
purposes of Sec. 96.205, a CAIR SO2 opt-in unit under 
subpart III of this part.
    Clean Air Act or CAA means the Clean Air Act, 42 U.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, or chemical 
processing of coal.
    Coal-fired means combusting any amount of coal or coal-derived fuel, 
alone, or in combination with any amount of any other fuel.
    Cogeneration unit means a stationary, fossil-fuel-fired boiler or 
stationary, fossil-fuel-fired combustion turbine:
    (1) Having equipment used to produce electricity and useful thermal 
energy for industrial, commercial, heating, or cooling purposes through 
the sequential use of energy; and
    (2) Producing during the 12-month period starting on the date the 
unit first produces electricity and during any calendar year after the 
calendar 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 energy 
output; and
    (B) Useful power that, when added to one-half of useful thermal 
energy produced, is not less then 42.5 percent of total energy input, if 
useful thermal energy produced is 15 percent or more of total energy 
output, or not less than 45 percent of total energy input, if useful 
thermal energy produced is less than 15 percent of total energy output.
    (ii) For a bottoming-cycle cogeneration unit, useful power not 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 energy input 
from all fuel except biomass if the unit is a boiler.
    Combustion turbine means:
    (1) An enclosed device comprising a compressor, a combustor, and a 
turbine and in which the flue gas resulting from the combustion of fuel 
in the combustor passes through the turbine, rotating the turbine; and
    (2) If the enclosed device under paragraph (1) of this definition is 
combined cycle, any associated duct burner, heat recovery steam 
generator, and steam turbine.
    Commence commercial operation means, with regard to a unit:
    (1) To have begun to produce steam, gas, or other heated medium used 
to generate electricity for sale or use, including test generation, 
except as provided in Sec. 96.205 and Sec. 96.284(h).
    (i) For a unit that is a CAIR SO2 unit under Sec. 96.204 
on the later of November 15, 1990 or the date the unit commences 
commercial operation as defined in paragraph (1) of this 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 commercial operation of the unit, which shall 
continue to be treated as the same unit.
    (ii) For a unit that is a CAIR SO2 unit under Sec. 
96.204 on the later of November 15, 1990 or the date the unit commences 
commercial operation as

[[Page 779]]

defined in paragraph (1) of this definition and that is subsequently 
replaced by a unit at the same source (e.g., repowered), such date shall 
remain the replaced unit's date of commencement of commercial operation, 
and the replacement unit shall be treated as a separate unit with a 
separate date 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 as 
provided in Sec. 96.205, for a unit that is not a CAIR SO2 
unit under Sec. 96.204 on the later of November 15, 1990 or the date 
the unit commences commercial operation as defined in paragraph (1) of 
this definition, the unit's date for commencement of commercial 
operation shall be the date on which the unit becomes a CAIR 
SO2 unit under Sec. 96.204.
    (i) For a unit with a date for commencement of commercial operation 
as defined in paragraph (2) of this 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 commercial operation of the unit, which shall continue 
to be treated as the same unit.
    (ii) For a unit with a date for commencement of commercial operation 
as defined in paragraph (2) of this definition and that is subsequently 
replaced by a unit at the same source (e.g., repowered), such date shall 
remain the replaced unit's date of commencement of commercial operation, 
and the replacement unit shall be treated as a separate unit with a 
separate date for commencement 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 combustion 
chamber, except as provided in Sec. 96.284(h).
    (2) For a unit that undergoes a physical change (other than 
replacement of the unit by a unit at the same source) after the date the 
unit commences operation as defined in paragraph (1) of this definition, 
such date shall remain the date of commencement of operation of the 
unit, which shall continue to be treated as the same unit.
    (3) For a unit that is replaced by a unit at the same source (e.g., 
repowered) after the date the unit commences operation as defined in 
paragraph (1) of this definition, such date shall remain the replaced 
unit's date of commencement of operation, and the replacement unit shall 
be treated as a separate unit with a separate date 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 Allowance Tracking 
System account, established by the Administrator for a CAIR 
SO2 source subject to an Acid Rain emissions limitations 
under Sec. 73.31(a) or (b) of this chapter or for any other CAIR 
SO2 source under subpart FFF or III of this part, in which 
any CAIR SO2 allowance allocations for the CAIR 
SO2 units at the source are initially recorded and in which 
are held any CAIR SO2 allowances available for use for a 
control period in order to meet the source's CAIR SO2 
emissions limitation in accordance with Sec. 96.254.
    Continuous emission monitoring system or CEMS means the equipment 
required under subpart HHH of this part to sample, analyze, measure, and 
provide, by means of readings recorded at least once every 15 minutes 
(using an automated data acquisition and handling system (DAHS)), a 
permanent record of sulfur dioxide emissions, stack gas volumetric flow 
rate, stack gas moisture content, and oxygen or carbon dioxide 
concentration (as applicable), in a manner consistent with part 75 of 
this chapter. The following systems are the principal types of 
continuous emission monitoring systems required under subpart HHH of 
this part:
    (1) A flow monitoring system, consisting of a stack flow rate 
monitor and an automated data acquisition and handling system and 
providing a permanent, continuous record of stack gas volumetric flow 
rate, in standard cubic feet per hour (scfh);
    (2) A sulfur dioxide monitoring system, consisting of a 
SO2 pollutant concentration monitor and an automated data 
acquisition handling system and providing a permanent, continuous

[[Page 780]]

record of SO2 emissions, in parts per million (ppm);
    (3) A moisture monitoring system, as defined in Sec. 75.11(b)(2) of 
this chapter and providing a permanent, continuous record of the stack 
gas moisture content, in percent H2O;
    (4) A carbon dioxide monitoring system, consisting of a 
CO2 pollutant concentration monitor (or an oxygen monitor 
plus suitable mathematical equations from which the CO2 
concentration is derived) and an automated data acquisition and handling 
system and providing a permanent, continuous record of CO2 
emissions, in percent CO2; and
    (5) An oxygen monitoring system, consisting of an O2 
concentration monitor and an automated data acquisition and handling 
system and providing a permanent, continuous record of O2 in 
percent O2.
    Control period means the period beginning January 1 of a calendar 
year, except as provided in Sec. 96.206(c)(2), and ending on December 
31 of the same year, inclusive.
    Emissions means air pollutants exhausted from a unit or source into 
the atmosphere, as measured, recorded, and reported to the Administrator 
by the CAIR designated representative and as determined by the 
Administrator in accordance with subpart HHH of this part.
    Excess emissions means any ton, or portion of a ton, of sulfur 
dioxide emitted by the CAIR SO2 units at a CAIR 
SO2 source during a control period that exceeds the CAIR 
SO2 emissions limitation for the source, provided that any 
portion of a ton of excess emissions shall be treated as one ton of 
excess emissions.
    Fossil fuel means natural gas, petroleum, coal, or any form of 
solid, liquid, or gaseous fuel derived from such material.
    Fossil-fuel-fired means, with regard to a unit, combusting any 
amount of fossil fuel in any calendar year.
    General account means a CAIR SO2 Allowance Tracking 
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 fuel feed 
rate into a combustion device (in lb of fuel/time), as measured, 
recorded, and reported to the Administrator by the CAIR designated 
representative and determined by the Administrator in accordance with 
subpart HHH of this part and excluding 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 specific fuel, the 
amount of heat input attributed to the fuel (in mmBtu) divided by the 
unit operating time (in hr) during which the unit combusts the fuel.
    Hg Budget Trading Program means a multi-state Hg air pollution 
control and emission reduction program approved and administered by the 
Administrator in accordance subpart HHHH of part 60 of this chapter and 
Sec. 60.24(h)(6), or established by the Administrator under section 111 
of the Clean Air Act, as a means of reducing national Hg emissions.
    Life-of-the-unit, firm power contractual arrangement means a unit 
participation power sales agreement under which a utility or industrial 
customer reserves, or is entitled to receive, a specified amount or 
percentage of nameplate capacity and associated energy generated by any 
specified unit and pays its proportional amount of such 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, including 
contracts that permit an election for early termination; or
    (3) For a period no less than 25 years or 70 percent of the economic 
useful life of the unit determined as of the time the unit is built, 
with option rights to purchase or release some portion of the nameplate 
capacity and associated energy generated by the unit at the end of the 
period.
    Maximum design heat input means the maximum amount of fuel per hour 
(in

[[Page 781]]

Btu/hr) that a unit is capable of combusting on a steady state basis as 
of the initial installation of the unit as specified by the manufacturer 
of the unit.
    Monitoring system means any monitoring system that meets the 
requirements of subpart HHH of this part, including a continuous 
emissions monitoring system, an alternative monitoring system, or an 
excepted monitoring system under part 75 of this chapter.
    Most stringent State or Federal SO2 emissions limitation 
means, with regard to a unit, the lowest SO2 emissions 
limitation (in terms of lb/mmBtu) that is applicable to the unit under 
State or Federal law, regardless of the averaging period to which the 
emissions limitation applies.
    Nameplate capacity means, starting from the initial installation of 
a generator, the maximum electrical generating output (in MWe) that the 
generator is capable of producing on a steady state basis and during 
continuous operation (when not restricted by seasonal or other 
deratings) as of such installation as specified by the manufacturer of 
the generator or, starting from the completion of any subsequent 
physical change in the generator resulting in an increase in the maximum 
electrical generating output (in MWe) that the generator is capable of 
producing on a steady state basis and during continuous operation (when 
not restricted by seasonal or other deratings), such increased maximum 
amount as of such completion as specified by the person conducting the 
physical change.
    Operator means any person who operates, controls, or supervises a 
CAIR SO2 unit or a CAIR SO2 source 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 CAIR 
SO2 unit at a source, respectively:
    (i) Any holder of any portion of the legal or equitable title in a 
CAIR SO2 unit at the source or the CAIR SO2 unit;
    (ii) Any holder of a leasehold interest in a CAIR SO2 
unit at the source or the CAIR SO2 unit; or
    (iii) Any purchaser of power from a CAIR SO2 unit at the 
source or the CAIR SO2 unit 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 an equitable interest through such lessor, whose 
rental payments are not based (either directly or indirectly) on the 
revenues or income from such CAIR SO2 unit; or
    (2) With regard to any general account, any person who has an 
ownership interest with respect to the CAIR SO2 allowances 
held in the general account and who is subject to the binding agreement 
for the CAIR authorized account representative to represent the person's 
ownership interest with respect to CAIR SO2 allowances.
    Permitting authority means the State air pollution control agency, 
local agency, other State agency, or other agency authorized by the 
Administrator to issue or revise permits to meet the requirements of the 
CAIR SO2 Trading Program or, if no such agency has been so 
authorized, the Administrator.
    Potential electrical output capacity means 33 percent of a unit's 
maximum design heat input, divided by 3,413 Btu/kWh, divided by 1,000 
kWh/MWh, and multiplied by 8,760 hr/yr.
    Receive or receipt of means, when referring to the permitting 
authority or the Administrator, to come into possession of a document, 
information, or correspondence (whether sent in hard copy or by 
authorized electronic transmission), as indicated in an official log, or 
by a notation made on the document, information, or correspondence, by 
the permitting authority or the Administrator in the regular course of 
business.
    Recordation, record, or recorded means, with regard to CAIR 
SO2 allowances, the movement of CAIR SO2 
allowances by the Administrator into or between CAIR SO2 
Allowance Tracking System accounts, for purposes of allocation, 
transfer, or deduction.
    Reference method means any direct test method of sampling and 
analyzing

[[Page 782]]

for an air pollutant as specified in Sec. 75.22 of this chapter.
    Replacement, replace, or replaced means, with regard to a unit, the 
demolishing of a unit, or the permanent shutdown and permanent disabling 
of a unit, and the construction of another unit (the replacement unit) 
to be used instead of the demolished or shutdown unit (the replaced 
unit).
    Repowered means, with regard to a unit, replacement of a coal-fired 
boiler with one of the following coal-fired technologies at the 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 the 
Secretary of Energy, a derivative of one or more of the technologies 
under paragraphs (1) through (5) of this definition and any other coal-
fired technology capable of controlling multiple combustion emissions 
simultaneously with improved boiler or generation efficiency and with 
significantly greater waste reduction relative to the performance of 
technology in widespread commercial use as of January 1, 2005.
    Serial number means, for a CAIR SO2 allowance, the unique 
identification number assigned to each CAIR SO2 allowance by 
the Administrator.
    Sequential use of energy means:
    (1) For a topping-cycle cogeneration unit, the use of reject heat 
from electricity production in a useful thermal energy application or 
process; or
    (2) For a bottoming-cycle cogeneration unit, the use of reject heat 
from useful thermal energy application or process in electricity 
production.
    Solid waste incineration unit means a stationary, fossil-fuel-fired 
boiler or stationary, fossil-fuel-fired combustion turbine that is a 
``solid waste incineration unit'' as defined in section 129(g)(1) of the 
Clean Air Act.
    Source means all buildings, structures, or installations located in 
one or more contiguous or adjacent properties under common control 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 a single ``facility.''
    State means one of the States or the District of Columbia that 
adopts the CAIR SO2 Trading Program pursuant to Sec. 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 accordance with 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 of dispatch, transmission, or mailing and not the 
date of receipt.
    Title V operating permit means a permit issued under title V of the 
Clean Air Act and part 70 or part 71 of this chapter.
    Title V operating permit regulations means the regulations that the 
Administrator has approved or issued as meeting the requirements of 
title V of the Clean Air Act and part 70 or 71 of this chapter.
    Ton means 2,000 pounds. For the purpose of determining compliance 
with the CAIR SO2 emissions limitation, total tons of sulfur 
dioxide emissions for a control period shall be calculated as the sum of 
all recorded hourly emissions (or the mass equivalent of the recorded 
hourly emission rates) in accordance with subpart HHH of this part, but 
with any remaining fraction of a ton equal to or greater than 0.50 tons 
deemed to equal one ton and any remaining fraction of a ton less than 
0.50 tons deemed to equal zero tons.
    Topping-cycle cogeneration unit means a cogeneration unit in which 
the energy input to the unit is first used to produce useful power, 
including electricity, and at least some of the reject heat from the 
electricity production is then used to provide useful thermal energy.
    Total energy input means, with regard to a cogeneration unit, total 
energy of all forms supplied to the cogeneration

[[Page 783]]

unit, excluding energy produced by the cogeneration unit itself. Each 
form of energy supplied shall be measured by the lower heating value of 
that 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 cogeneration unit, the 
sum of useful power and useful thermal energy produced by the 
cogeneration unit.
    Unit means a stationary, fossil-fuel-fired boiler or combustion 
turbine or other stationary, fossil-fuel-fired combustion device.
    Unit operating day means a calendar day in which a unit combusts any 
fuel.
    Unit operating hour or hour of unit operation means an hour 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 any such energy 
used in the power production process (which process includes, but is not 
limited to, any on-site processing or treatment of fuel combusted at the 
unit and any on-site emission controls).
    Useful thermal energy means, with regard to a cogeneration unit, 
thermal energy that is:
    (1) Made available to an industrial or commercial process (not a 
power production process), excluding any heat contained in condensate 
return or makeup water;
    (2) Used in a heating application (e.g., space heating or domestic 
hot water heating); or
    (3) Used in a space cooling application (i.e., thermal energy used 
by an absorption chiller).
    Utility power distribution system means the portion of an 
electricity grid owned or operated by a utility and dedicated to 
delivering 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, 2006, Sec. 96.202 was 
amended in the definition of ``CAIR NOX Ozone Season 
source'', by revising the words ``includes one or more CAIR 
NOX Ozone Season unit'' to read ``is subject to the CAIR 
NOX Ozone Season Trading Program''; however, those words do 
not exist 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 ``CAIR SO2 allowance'' in 
paragraph (4), by revising the words ``(Program, provisions'' to read 
``Program, provisions''; however, paragraph (4) does not exist in this 
section and the amendment could not be incorporated.



Sec. 96.203  Measurements, abbreviations, and acronyms.

    Measurements, abbreviations, and acronyms used in this subpart and 
subparts 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

[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 SO2 
units, and any source that includes one or more such units shall be a 
CAIR SO2 source, subject to the requirements of this subpart 
and subparts BBB through HHH of this part: any stationary, fossil-fuel-
fired boiler or stationary, fossil-fuel-fired combustion turbine serving 
at any time, since the later of November 15, 1990 or the start-up of the 
unit's combustion chamber, a generator with nameplate 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 SO2 
unit begins to combust fossil

[[Page 784]]

fuel or to serve a generator with nameplate capacity of more than 25 MWe 
producing electricity for sale, the unit shall become a CAIR 
SO2 unit as provided in paragraph (a)(1) of this section on 
the first date on which it both combusts fossil fuel and serves such 
generator.
    (b) The units in a State that meet the requirements set forth in 
paragraph (b)(1)(i), (b)(2)(i), or (b)(2)(ii) of this section shall not 
be CAIR SO2 units:
    (1)(i) Any unit that is a CAIR SO2 unit under paragraph 
(a)(1) or (2) of this section:
    (A) Qualifying as a cogeneration unit during the 12-month period 
starting on the date the unit first produces electricity and continuing 
to qualify as a cogeneration unit; and
    (B) Not serving at any time, since the later of November 15, 1990 or 
the start-up of the unit's combustion chamber, a generator with 
nameplate capacity of more than 25 MWe supplying in any calendar year 
more than one-third of the unit's potential electric output capacity or 
219,000 MWh, whichever is greater, to any utility power distribution 
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 electricity and 
meets the requirements of paragraphs (b)(1)(i) of this section for at 
least one calendar year, but subsequently no longer meets all such 
requirements, the unit shall become a CAIR SO2 unit starting 
on the earlier of January 1 after the first calendar year during which 
the unit first no longer qualifies as a cogeneration unit or January 1 
after the first calendar year during which the unit no longer meets the 
requirements of paragraph (b)(1)(i)(B) of this section.
    (2)(i) Any unit that is a CAIR SO2 unit under paragraph 
(a)(1) or (2) of this section commencing operation before January 1, 
1985:
    (A) Qualifying as a solid waste incineration unit; and
    (B) With an average annual fuel consumption of non-fossil fuel for 
1985-1987 exceeding 80 percent (on a Btu basis) and an average annual 
fuel consumption of non-fossil fuel for any 3 consecutive calendar 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 January 
1, 1985:
    (A) Qualifying as a solid waste incineration unit; and
    (B) With an average annual fuel consumption of non-fossil fuel for 
the first 3 calendar years of operation exceeding 80 percent (on a Btu 
basis) and an average annual fuel consumption of non-fossil fuel for any 
3 consecutive calendar years after 1990 exceeding 80 percent (on a Btu 
basis).
    (iii) If a unit qualifies as a solid waste incineration unit and 
meets the requirements of paragraph (b)(2)(i) or (ii) of this section 
for at least 3 consecutive calendar years, but subsequently no longer 
meets all such requirements, the unit shall become a CAIR SO2 
unit starting on the earlier of January 1 after the first calendar year 
during which the unit first no longer qualifies as a solid waste 
incineration unit or January 1 after the first 3 consecutive calendar 
years after 1990 for which the unit has an average annual fuel 
consumption of fossil fuel of 20 percent or more.

[71 FR 25387, Apr. 28, 2006]



Sec. 96.205  Retired unit exemption.

    (a)(1) Any CAIR SO2 unit that is permanently retired and 
is not a CAIR SO2 opt-in unit under subpart III of this part 
shall be exempt from the CAIR SO2 Trading Program, 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 shall 
become effective the day on which the CAIR SO2 unit is 
permanently retired. Within 30 days of the unit's permanent retirement, 
the CAIR designated representative shall submit a statement to the 
permitting authority otherwise responsible for administering any CAIR 
permit for the unit and shall submit a copy of the statement to the 
Administrator. The statement shall state, in a format prescribed by the 
permitting authority, that the unit was permanently retired on a 
specific date and

[[Page 785]]

will comply with the requirements of paragraph (b) of this section.
    (3) After receipt of the statement under paragraph (a)(2) of this 
section, the permitting authority will amend any permit under subpart 
CCC of this part covering the source at which the unit is located to add 
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 the date 
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 this 
section shall retain, at the source that includes the unit, records 
demonstrating that the unit is permanently retired. The 5-year period 
for keeping records may be extended for cause, at any time before the 
end of the period, in writing by the permitting authority or the 
Administrator. The owners and operators bear the burden of proof that 
the unit is permanently retired.
    (3) The owners and operators and, to the extent applicable, the CAIR 
designated representative of a unit exempt under paragraph (a) of this 
section shall comply with the requirements of the CAIR SO2 
Trading Program concerning all periods for which the exemption is not in 
effect, even if such requirements arise, or must be complied with, after 
the exemption takes effect.
    (4) A unit exempt under paragraph (a) of this section and located at 
a source that is required, or but for this exemption would be required, 
to have a title V operating permit shall not resume operation unless the 
CAIR designated representative of the source submits a complete CAIR 
permit application under Sec. 96.222 for the unit not less than 18 
months (or such lesser time provided by the permitting authority) before 
the later of January 1, 2010 or the date on which the unit resumes 
operation.
    (5) On the earlier of the following dates, a unit exempt under 
paragraph (a) of this section shall lose its exemption:
    (i) The date on which the CAIR designated representative submits a 
CAIR permit application for the unit under paragraph (b)(4) of this 
section;
    (ii) The date on which the CAIR designated representative is 
required under paragraph (b)(4) of this section to submit a CAIR permit 
application for the unit; or
    (iii) The date on which the unit resumes operation, if the CAIR 
designated representative is not required to submit a CAIR permit 
application for the unit.
    (6) For the purpose of applying monitoring, reporting, and 
recordkeeping requirements under subpart HHH of this part, a unit that 
loses its exemption under paragraph (a) of this section shall be treated 
as a unit that commences commercial operation on the first date on which 
the unit resumes operation.

[70 FR 25362, May 12, 2005, as amended at 71 FR 25388, Apr. 28, 2006]



Sec. 96.206  Standard requirements.

    (a) Permit requirements. (1) The CAIR designated representative of 
each CAIR SO2 source required to have a title V operating 
permit and each CAIR SO2 unit required to have a title V 
operating permit at the source shall:
    (i) Submit to the permitting authority a complete CAIR permit 
application under Sec. 96.222 in accordance with the deadlines 
specified in Sec. 96.221; and
    (ii) Submit in a timely manner any supplemental information that the 
permitting authority determines is necessary in order to review a CAIR 
permit application and issue or deny a CAIR permit.
    (2) The owners and operators of each CAIR SO2 source 
required to have a title V operating permit and each CAIR SO2 
unit required to have a title V operating permit at the source shall 
have a CAIR permit issued by the permitting authority under subpart CCC 
of this part for the source and operate the source and the unit in 
compliance with such CAIR permit.
    (3) Except as provided in subpart III of this part, the owners and 
operators of a CAIR SO2 source that is not otherwise required 
to have a title V operating permit and each CAIR SO2 unit 
that is not otherwise required to have

[[Page 786]]

a title V operating permit are not required to submit a CAIR permit 
application, and to have a CAIR permit, under subpart CCC of this part 
for such CAIR 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 unit at the 
source shall comply with the monitoring, reporting, and recordkeeping 
requirements of subpart HHH of this part.
    (2) The emissions measurements recorded and reported in accordance 
with subpart HHH of this part shall be used to determine compliance by 
each CAIR SO2 source with the CAIR SO2 emissions 
limitation under paragraph (c) of this section.
    (c) Sulfur dioxide emission requirements. (1) As of the allowance 
transfer deadline for a control period, the owners and operators of each 
CAIR SO2 source and each CAIR SO2 unit at the 
source shall hold, in the source's compliance account, a tonnage 
equivalent in CAIR SO2 allowances available for compliance 
deductions for the control period, as determined in accordance with 
Sec. 96.254(a) and (b), not less than the tons of total sulfur dioxide 
emissions for the control period from all CAIR SO2 units at 
the source, as determined in accordance with subpart HHH of this part.
    (2) A CAIR SO2 unit shall be subject to the requirements 
under paragraph (c)(1) of this section for the control period starting 
on the later of January 1, 2010 or the deadline for meeting the unit's 
monitor certification requirements under Sec. 96.270(b)(1), (2), or (5) 
and for each control period thereafter.
    (3) A CAIR SO2 allowance shall not be deducted, for 
compliance with the requirements under paragraph (c)(1) of this section, 
for a control period in a calendar year before the year for which the 
CAIR SO2 allowance was allocated.
    (4) CAIR SO2 allowances shall be held in, deducted from, 
or transferred into or among CAIR SO2 Allowance Tracking 
System accounts in accordance with subparts FFF, GGG, and III of this 
part.
    (5) A CAIR SO2 allowance is a limited authorization to 
emit sulfur dioxide in accordance with the CAIR SO2 Trading 
Program. No provision of the CAIR SO2 Trading Program, the 
CAIR permit application, the CAIR permit, or an exemption under Sec. 
96.205 and no provision of law shall be construed to limit the authority 
of the State or the United States to terminate or limit such 
authorization.
    (6) A CAIR SO2 allowance does not constitute a property 
right.
    (7) Upon recordation by the Administrator under subpart FFF, GGG, or 
III of this part, every allocation, transfer, or deduction of a CAIR 
SO2 allowance to or from a CAIR SO2 source's 
compliance account is incorporated automatically in any CAIR permit of 
the source.
    (d) Excess emissions requirements-- If a CAIR SO2 source 
emits sulfur dioxide during any control period in excess of the CAIR 
SO2 emissions limitation, then:
    (1) The owners and operators of the source and each CAIR 
SO2 unit at the source shall surrender the CAIR 
SO2 allowances required for deduction under Sec. 
96.254(d)(1) and pay any fine, penalty, or assessment or 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 control 
period shall constitute a separate violation of this subpart, the Clean 
Air Act, and applicable State law.
    (e) Recordkeeping and reporting requirements. (1) Unless otherwise 
provided, the owners and operators of the CAIR SO2 source and 
each CAIR SO2 unit at the source shall keep on site at the 
source each of the following documents for a period of 5 years from the 
date the document is created. This period may be extended for cause, at 
any time before the end of 5 years, in writing by the permitting 
authority or the Administrator.
    (i) The certificate of representation under Sec. 96.213 for the 
CAIR designated representative for the source and each CAIR 
SO2 unit at the source and all documents that demonstrate the 
truth of the statements in the certificate of

[[Page 787]]

representation; provided that the certificate and documents shall be 
retained on site at the source beyond such 5-year period until such 
documents are superseded because of the submission of a new certificate 
of representation under Sec. 96.213 changing the CAIR designated 
representative.
    (ii) All emissions monitoring information, in accordance with 
subpart HHH of this part, provided that to the extent that subpart HHH 
of this part provides for a 3-year period for recordkeeping, the 3-year 
period shall apply.
    (iii) Copies of all reports, compliance certifications, and other 
submissions and all records made or required under the CAIR 
SO2 Trading Program.
    (iv) Copies of all documents used to complete a CAIR permit 
application and any other submission under the CAIR SO2 
Trading Program or to demonstrate compliance with the requirements of 
the CAIR SO2 Trading Program.
    (2) The CAIR designated representative of a CAIR SO2 
source and each CAIR SO2 unit at the source shall submit the 
reports required under the CAIR SO2 Trading Program, 
including those under subpart HHH of this part.
    (f) Liability. (1) Each CAIR SO2 source and each CAIR 
SO2 unit shall meet the requirements of the CAIR 
SO2 Trading Program.
    (2) Any provision of the CAIR SO2 Trading Program that 
applies to a CAIR SO2 source or the CAIR designated 
representative of a CAIR SO2 source shall also apply to the 
owners and operators of such source and of the CAIR SO2 units 
at the source.
    (3) Any provision of the CAIR SO2 Trading Program that 
applies to a CAIR SO2 unit or the CAIR designated 
representative of a CAIR SO2 unit shall also apply to the 
owners and operators of such unit.
    (g) Effect on other authorities. No provision of the CAIR 
SO2 Trading Program, a CAIR permit application, a CAIR 
permit, or an exemption under Sec. 96.205 shall be construed as 
exempting or excluding the owners and operators, and the CAIR designated 
representative, of a CAIR SO2 source or CAIR SO2 
unit from compliance with any other provision of the applicable, 
approved State implementation plan, a federally enforceable 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 the 
CAIR SO2 Trading Program, to begin on the occurrence of an 
act or event shall begin on the day the act or event occurs.
    (b) Unless otherwise stated, any time period scheduled, under the 
CAIR SO2 Trading Program, to begin before the occurrence of 
an act or event shall be computed so that the period ends the day before 
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 or a 
State or Federal holiday, the time period shall be extended to the next 
business day.



Sec. 96.208  Appeal procedures.

    The appeal procedures for decisions of the Administrator under the 
CAIR SO2 Trading Program are set forth in part 78 of this 
chapter.



     Subpart BBB_CAIR Designated Representative for CAIR SO2 Sources

    Source: 70 FR 25362, May 12, 2005, unless otherwise noted.



Sec. 96.210  Authorization and responsibilities of CAIR designated 

representative.

    (a) Except as provided under Sec. 96.211, each CAIR SO2 
source, including all CAIR SO2 units at the source, shall 
have one and only one CAIR designated representative, with regard to all 
matters under the CAIR SO2 Trading Program concerning the 
source or any CAIR SO2 unit at the source.
    (b) The CAIR designated representative of the CAIR SO2 
source shall be selected by an agreement binding on the owners and 
operators of the source and all CAIR SO2 units at the source 
and shall act in accordance with the certification statement in Sec. 
96.213(a)(4)(iv).

[[Page 788]]

    (c) Upon receipt by the Administrator of a complete certificate of 
representation under Sec. 96.213, the CAIR designated representative of 
the source shall represent and, by his or her representations, actions, 
inactions, or submissions, legally bind each owner and operator of the 
CAIR SO2 source represented and each CAIR SO2 unit 
at the source in all matters pertaining to the CAIR SO2 
Trading Program, notwithstanding any agreement between the CAIR 
designated representative and such owners and operators. The owners and 
operators shall be bound by any decision or order issued to the CAIR 
designated representative by the permitting authority, the 
Administrator, or a court regarding the source or unit.
    (d) No CAIR permit will be issued, no emissions data reports will be 
accepted, and no CAIR SO2 Allowance Tracking System account 
will be established for a CAIR SO2 unit at a source, until 
the Administrator has received a complete certificate of representation 
under Sec. 96.213 for a CAIR designated representative of the source 
and the CAIR SO2 units at the source.
    (e)(1) Each submission under the CAIR SO2 Trading Program 
shall be submitted, signed, and certified by the CAIR designated 
representative for each CAIR SO2 source on behalf of which 
the submission is made. Each such submission shall include the following 
certification statement by the CAIR designated representative: ``I am 
authorized to make this submission on behalf of the owners and operators 
of the source or units for which the submission is made. I certify under 
penalty of law that I have personally examined, and am familiar with, 
the statements and information submitted in this document and all its 
attachments. Based on my inquiry of those individuals with primary 
responsibility for obtaining the information, I certify that the 
statements and information are to the best of my knowledge and belief 
true, accurate, and complete. I am aware that there are significant 
penalties for submitting false statements and information or omitting 
required statements and information, including the possibility of fine 
or imprisonment.''
    (2) The permitting authority and the Administrator will accept or 
act on a submission made on behalf of owner or operators of a CAIR 
SO2 source or a CAIR SO2 unit only if the 
submission has been made, signed, and certified in accordance with 
paragraph (e)(1) of this section.



Sec. 96.211  Alternate CAIR designated representative.

    (a) A certificate of representation under Sec. 96.213 may designate 
one and only one alternate CAIR designated representative, who may act 
on behalf of the CAIR designated representative. The agreement by which 
the alternate CAIR designated representative is selected shall include a 
procedure for authorizing the alternate CAIR designated representative 
to act in lieu of the CAIR designated representative.
    (b) Upon receipt by the Administrator of a complete certificate of 
representation under Sec. 96.213, any representation, action, inaction, 
or submission by the alternate CAIR designated representative shall be 
deemed to be a representation, action, inaction, or submission by the 
CAIR designated representative.
    (c) Except in this section and Sec. Sec. 96.202, 96.210(a) and (d), 
96.212, 96.213, 96.215, 96.251, and 96.282, whenever the term ``CAIR 
designated representative'' is used in subparts AAA through III of this 
part, the term shall be construed to include the CAIR designated 
representative or any alternate 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 CAIR 

designated representative; changes in owners and operators.

    (a) Changing CAIR designated representative. The CAIR designated 
representative may be changed at any time upon receipt by the 
Administrator of a superseding complete certificate of representation 
under Sec. 96.213. Notwithstanding any such change, all 
representations, actions, inactions, and submissions by the previous 
CAIR designated representative before the time and date when the 
Administrator receives the superseding certificate of

[[Page 789]]

representation shall be binding on the new CAIR designated 
representative and the owners and operators of the CAIR SO2 
source and the CAIR SO2 units at the source.
    (b) Changing alternate CAIR designated representative. The alternate 
CAIR designated representative may be changed at any time upon receipt 
by the Administrator of a superseding complete certificate of 
representation under Sec. 96.213. Notwithstanding any such change, all 
representations, actions, inactions, and submissions by the previous 
alternate CAIR designated representative before the time and date when 
the Administrator receives the superseding certificate of representation 
shall be binding on the new alternate CAIR designated representative and 
the owners and operators of the CAIR SO2 source and the CAIR 
SO2 units at the source.
    (c) Changes in owners and operators. (1) In the event an owner or 
operator of a CAIR SO2 source or a CAIR SO2 unit 
is not included in the list of owners and operators in the certificate 
of representation under Sec. 96.213, such owner or operator shall be 
deemed to be subject to and bound by the certificate of representation, 
the representations, actions, inactions, and submissions of the CAIR 
designated representative and any alternate CAIR designated 
representative of the source or unit, and the decisions and orders of 
the permitting authority, the Administrator, or a court, as if the owner 
or operator were included in such list.
    (2) Within 30 days following any change in the owners and operators 
of a CAIR SO2 source or a CAIR SO2 unit, including 
the addition of a new owner or operator, the CAIR designated 
representative or any alternate CAIR designated representative shall 
submit a revision to the certificate of representation under Sec. 
96.213 amending the list of owners and 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 designated 
representative or an alternate CAIR designated representative shall 
include the following elements in a format prescribed by the 
Administrator:
    (1) Identification of the CAIR SO2 source, and each CAIR 
SO2 unit at the source, for which the certificate of 
representation is submitted, including identification and nameplate 
capacity 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 designated 
representative and any alternate CAIR designated representative.
    (3) A list of the owners and operators of the CAIR SO2 
source and of each CAIR SO2 unit at the source.
    (4) The following certification statements by the CAIR designated 
representative and any alternate CAIR designated representative--
    (i) ``I certify that I was selected as the CAIR designated 
representative or alternate CAIR designated representative, as 
applicable, by an agreement binding on the owners and operators of the 
source and each CAIR SO2 unit at the source.''
    (ii) ``I certify that I have all the necessary authority to carry 
out my duties and responsibilities under the CAIR SO2 Trading 
Program on behalf of the owners and operators of the source and of each 
CAIR SO2 unit at the source and that each such owner and 
operator shall be fully bound by my representations, actions, inactions, 
or submissions.''
    (iii) ``I certify that the owners and operators of the source and of 
each CAIR SO2 unit at the source shall be bound by any order 
issued to me by the Administrator, the permitting authority, or a court 
regarding the source or unit.''
    (iv) ``Where there are multiple holders of a legal or equitable 
title to, or a leasehold interest in, a CAIR SO2 unit, or 
where a utility or industrial customer purchases power from a CAIR 
SO2 unit under a life-of-the-unit, firm power contractual 
arrangement, I certify that: I have given a written notice of my 
selection as the `CAIR designated representative' or `alternate CAIR 
designated representative', as applicable, and of the agreement by which 
I was selected to each owner and

[[Page 790]]

operator of the source and of each CAIR SO2 unit at the 
source; and CAIR SO2 allowances and proceeds of transactions 
involving CAIR SO2 allowances will be deemed 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 a different distribution of CAIR 
SO2 allowances by contract, CAIR SO2 allowances 
and proceeds of transactions involving CAIR SO2 allowances 
will be deemed to be held or distributed in accordance with the 
contract.''
    (5) The signature of the CAIR designated representative and any 
alternate CAIR designated representative and the dates signed.
    (b) Unless otherwise required by the permitting authority or the 
Administrator, documents of agreement referred to in the certificate of 
representation shall not be submitted to the permitting authority or the 
Administrator. Neither the permitting authority nor the Administrator 
shall be under any obligation to review or evaluate the sufficiency 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 under Sec. 96.213 
has been submitted and received, the permitting authority and the 
Administrator will rely on the certificate of representation unless and 
until a superseding complete certificate of representation under Sec. 
96.213 is received by the Administrator.
    (b) Except as provided in Sec. 96.212(a) or (b), no objection or 
other communication submitted to the permitting authority or the 
Administrator concerning the authorization, or any representation, 
action, inaction, or submission, of the CAIR designated representative 
shall affect any representation, action, inaction, or submission of the 
CAIR designated representative or the finality of any decision or order 
by the permitting authority or the Administrator under the CAIR 
SO2 Trading Program.
    (c) Neither the permitting authority nor the Administrator will 
adjudicate any private legal dispute concerning the authorization or any 
representation, action, inaction, or submission of any CAIR designated 
representative, including private legal disputes concerning the proceeds 
of CAIR SO2 allowance transfers.



Sec. 96.215  Delegation by CAIR designated representative and alternate CAIR 

designated representative.

    (a) A CAIR designated representative may delegate, to one or more 
natural persons, his or her authority to make an electronic submission 
to the Administrator provided for or required under this part.
    (b) An alternate CAIR designated representative may delegate, to one 
or more natural persons, his or her authority to make an electronic 
submission to the Administrator provided for or required under this 
part.
    (c) In order to delegate authority to make an electronic submission 
to the Administrator in accordance with paragraph (a) or (b) of this 
section, the CAIR designated representative or alternate CAIR designated 
representative, as appropriate, must submit to the Administrator a 
notice of delegation, in a format prescribed by the Administrator, that 
includes the following elements:
    (1) The name, address, e-mail address, telephone number, and 
facsimile transmission number (if any) of such CAIR designated 
representative or alternate CAIR designated representative;
    (2) The name, address, e-mail address, telephone number, and 
facsimile 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 of 
electronic submissions under paragraph (a) or (b) of this section for 
which authority is delegated to him or her; and
    (4) The following certification statements by such CAIR designated 
representative or alternate CAIR designated representative:
    (i) ``I agree that any electronic submission to the Administrator 
that is by an agent identified in this notice of

[[Page 791]]

delegation and of a type listed for such agent in this notice of 
delegation and that is made when I am a CAIR designated representative 
or alternate CAIR designated representative, as appropriate, and before 
this notice of delegation is superseded by another notice of delegation 
under 40 CFR 96.215(d) shall be deemed to be an electronic submission by 
me.''
    (ii) ``Until this notice of delegation is superseded by another 
notice of delegation under 40 CFR 96.215(d), I agree to maintain an e-
mail account and to notify the Administrator immediately of any change 
in my e-mail address unless all delegation of authority by me under 40 
CFR 96.215 is terminated.''.
    (d) A notice of delegation submitted under paragraph (c) of this 
section shall be effective, with regard to the CAIR designated 
representative or alternate CAIR designated representative identified in 
such notice, upon receipt of such notice by the Administrator and until 
receipt by the Administrator of a superseding notice of delegation 
submitted by such CAIR designated representative or alternate CAIR 
designated representative, as appropriate. The superseding notice of 
delegation may replace any previously identified agent, add a new agent, 
or eliminate entirely any delegation of authority.
    (e) Any electronic submission covered by the certification in 
paragraph (c)(4)(i) of this section and made in accordance with a notice 
of delegation effective under paragraph (d) of this section shall be 
deemed to be an electronic submission by the CAIR designated 
representative or alternate CAIR designated representative submitting 
such 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 otherwise noted.



Sec. 96.220  General CAIR SO[bdi2] Trading Program permit requirements.

    (a) For each CAIR SO2 source required to have a title V 
operating permit or required, under subpart III of this part, to have a 
title V operating permit or other federally enforceable permit, such 
permit shall include a CAIR permit administered by the permitting 
authority for the title V operating permit or the federally enforceable 
permit as applicable. The CAIR portion of the title V permit or other 
federally enforceable permit as applicable shall be administered in 
accordance with the permitting authority's title V operating permits 
regulations promulgated under part 70 or 71 of this chapter or the 
permitting authority's regulations for other federally enforceable 
permits as applicable, except as provided otherwise by Sec. 96.205, 
this subpart, and subpart III of this part.
    (b) Each CAIR permit shall contain, with regard to the CAIR 
SO2 source and the CAIR SO2 units at the source 
covered by the CAIR permit, all applicable CAIR SO2 Trading 
Program, CAIR NOX Annual Trading Program, and CAIR 
NOX Ozone Season Trading Program requirements and shall be a 
complete and separable portion of the title V operating permit or other 
federally enforceable permit under paragraph (a) of this section.

[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 any CAIR 
SO2 source required to have a title V operating permit shall 
submit to the permitting authority a complete CAIR permit application 
under Sec. 96.222 for the source covering each CAIR SO2 unit 
at the source at least 18 months (or such lesser time provided by the 
permitting authority) before the later of January 1, 2010 or the date on 
which the CAIR SO2 unit commences commercial operation, 
except as provided in Sec. 96.283(a).
    (b) Duty to Reapply. For a CAIR SO2 source required to 
have a title V operating permit, the CAIR designated representative 
shall submit a complete CAIR permit application under Sec. 96.222 for 
the source covering each CAIR SO2 unit at the source to renew 
the CAIR

[[Page 792]]

permit in accordance with the permitting authority's title V operating 
permits regulations addressing permit renewal, except as provided in 
Sec. 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 following 
elements concerning the CAIR SO2 source for which the 
application is submitted, in a format prescribed by the permitting 
authority:
    (a) Identification of the CAIR SO2 source;
    (b) Identification of each CAIR SO2 unit at the CAIR 
SO2 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 the 
permitting authority, all elements required for a complete CAIR permit 
application under Sec. 96.222.
    (b) Each CAIR permit is deemed to incorporate automatically the 
definitions of terms under Sec. 96.202 and, upon recordation by the 
Administrator under subpart FFF, GGG, or III of this part, every 
allocation, transfer, or deduction of a CAIR SO2 allowance to 
or from the compliance account of the CAIR SO2 source covered 
by the permit.
    (c) The term of the CAIR permit will be set by the permitting 
authority, as necessary to facilitate coordination of the renewal of the 
CAIR permit with issuance, revision, or renewal of the CAIR 
SO2 source's title V operating permit or other federally 
enforceable permit as applicable.



Sec. 96.224  CAIR permit revisions.

    Except as provided in Sec. 96.223(b), the permitting authority will 
revise the CAIR permit, as necessary, in accordance with the permitting 
authority's title V operating permits regulations or the permitting 
authority's regulations for other federally enforceable permits as 
applicable addressing permit revisions.

Subparts DDD--EEE [Reserved]



             Subpart FFF_CAIR SO2 Allowance Tracking System

    Source: 70 FR 25362, May 12, 2005, unless otherwise noted.



Sec. 96.250  [Reserved]



Sec. 96.251  Establishment of accounts.

    (a) Compliance accounts. Except as provided in Sec. 96.284(e), upon 
receipt of a complete certificate of representation under Sec. 96.213, 
the Administrator will establish a compliance account for the CAIR 
SO2 source for which the certificate of representation was 
submitted, unless the source already has a compliance account.
    (b) General accounts--(1) Application for general account. (i) Any 
person may apply to open a general account for the purpose of holding 
and transferring CAIR SO2 allowances. An application for a 
general account may designate one and only one CAIR authorized account 
representative and one and only one alternate CAIR authorized account 
representative who may act on behalf of the CAIR authorized account 
representative. The agreement by which the alternate CAIR authorized 
account representative is selected shall include a procedure for 
authorizing the alternate CAIR authorized account representative to act 
in lieu of the CAIR authorized account representative.
    (ii) A complete application for a general account shall be submitted 
to the Administrator and shall include the following elements in a 
format prescribed by the Administrator:
    (A) Name, mailing address, e-mail address (if any), telephone 
number, and facsimile transmission number (if any) of the CAIR 
authorized account representative and any alternate CAIR authorized 
account representative;
    (B) Organization name and type of organization, if applicable;
    (C) A list of all persons subject to a binding agreement for the 
CAIR authorized account representative and any alternate CAIR authorized 
account representative to represent their ownership interest with 
respect to the CAIR SO2 allowances held in the general 
account;

[[Page 793]]

    (D) The following certification statement by the CAIR authorized 
account representative and any alternate CAIR authorized account 
representative: ``I certify that I was selected as the CAIR authorized 
account representative or the alternate CAIR authorized account 
representative, as applicable, by an agreement that is binding on all 
persons who have an ownership interest with respect to CAIR 
SO2 allowances held in the general account. I certify that I 
have all the necessary authority to carry out my duties and 
responsibilities under the CAIR SO2 Trading Program on behalf 
of such persons and that each such person shall be fully bound by my 
representations, actions, inactions, or submissions and by any order or 
decision issued to me by the Administrator or a court regarding the 
general account.''
    (E) The signature of the CAIR authorized account representative and 
any alternate CAIR authorized account representative and the dates 
signed.
    (iii) Unless otherwise required by the permitting authority or the 
Administrator, documents of agreement referred to in the application for 
a general account shall not be submitted to the permitting authority or 
the Administrator. Neither the permitting authority nor the 
Administrator shall be under any obligation to review or evaluate the 
sufficiency of such documents, if submitted.
    (2) Authorization of CAIR authorized account representative and 
alternate CAIR authorized account representative. (i) Upon receipt by 
the Administrator of a complete application for a general account under 
paragraph (b)(1) of this section:
    (A) The Administrator will establish a general account for the 
person or persons for whom the application is submitted.
    (B) The CAIR authorized account representative and any alternate 
CAIR authorized account representative for the general account shall 
represent and, by his or her representations, actions, inactions, or 
submissions, legally bind each person who has an ownership interest with 
respect to CAIR SO2 allowances held in the general account in 
all matters pertaining to the CAIR SO2 Trading Program, 
notwithstanding any agreement between the CAIR authorized account 
representative or any alternate CAIR authorized account representative 
and such person. Any such person shall be bound by any order or decision 
issued to the CAIR authorized account representative or any alternate 
CAIR authorized account representative by the Administrator or a court 
regarding the general account.
    (C) Any representation, action, inaction, or submission by any 
alternate CAIR authorized account representative shall be deemed to be a 
representation, action, inaction, or submission by the CAIR authorized 
account representative.
    (ii) Each submission concerning the general account shall be 
submitted, signed, and certified by the CAIR authorized account 
representative or any alternate CAIR authorized account representative 
for the persons having an ownership interest with respect to CAIR 
SO2 allowances held in the general account. Each such 
submission shall include the following certification statement by the 
CAIR authorized account representative or any alternate CAIR authorized 
account representative: ``I am authorized to make this submission on 
behalf of the persons having an ownership interest with respect to the 
CAIR SO2 allowances held in the general account. I certify 
under penalty of law that I have personally examined, and am familiar 
with, the statements and information submitted in this document and all 
its attachments. Based on my inquiry of those individuals with primary 
responsibility for obtaining the information, I certify that the 
statements and information are to the best of my knowledge and belief 
true, accurate, and complete. I am aware that there are significant 
penalties for submitting false statements and information or omitting 
required statements and information, including the possibility of fine 
or imprisonment.''
    (iii) The Administrator will accept or act on a submission 
concerning the general account only if the submission has been made, 
signed, and certified in accordance with paragraph (b)(2)(ii) of this 
section.

[[Page 794]]

    (3) Changing CAIR authorized account representative and alternate 
CAIR authorized account representative; changes in persons with 
ownership interest. (i) The CAIR authorized account representative for a 
general account may be changed at any time upon receipt by the 
Administrator of a superseding complete application for a general 
account under paragraph (b)(1) of this section. Notwithstanding any such 
change, all representations, actions, inactions, and submissions by the 
previous CAIR authorized account representative before the time and date 
when the Administrator receives the superseding application for a 
general account shall be binding on the new CAIR authorized account 
representative and the persons with an ownership interest with respect 
to the CAIR SO2 allowances in the general account.
    (ii) The alternate CAIR authorized account representative for a 
general account may be changed at any time upon receipt by the 
Administrator of a superseding complete application for a general 
account under paragraph (b)(1) of this section. Notwithstanding any such 
change, all representations, actions, inactions, and submissions by the 
previous alternate CAIR authorized account representative before the 
time and date when the Administrator receives the superseding 
application for a general account shall be binding on the new alternate 
CAIR authorized account representative and the persons with an ownership 
interest with respect to the CAIR SO2 allowances in the 
general account.
    (iii)(A) In the event a person having an ownership interest with 
respect to CAIR SO2 allowances in the general account is not 
included in the list of such persons in the application for a general 
account, such person shall be deemed to be subject to and bound by the 
application for a general account, the representation, actions, 
inactions, and submissions of the CAIR authorized account representative 
and any alternate CAIR authorized account representative of the account, 
and the decisions and orders of the Administrator or a court, as if the 
person were included in such list.
    (B) Within 30 days following any change in the persons having an 
ownership interest with respect to CAIR SO2 allowances in the 
general account, including the addition of a new person, the CAIR 
authorized account representative or any alternate CAIR authorized 
account representative shall submit a revision to the application for a 
general account amending the list of persons having an ownership 
interest with respect to the CAIR SO2 allowances in the 
general account to include the change.
    (4) Objections concerning CAIR authorized account representative and 
alternate CAIR authorized account representative. (i) Once a complete 
application for a general account under paragraph (b)(1) of this section 
has been submitted and received, the Administrator will rely on the 
application unless and until a superseding 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)(3)(i) or (ii) of this 
section, no objection or other communication submitted to the 
Administrator concerning the authorization, or any representation, 
action, inaction, or submission of the CAIR authorized account 
representative or any alternate CAIR authorized account representative 
for a general account shall affect any representation, action, inaction, 
or submission of the CAIR authorized account representative or any 
alternate CAIR authorized account representative or the finality of any 
decision or order by the Administrator under the CAIR SO2 
Trading Program.
    (iii) The Administrator will not adjudicate any private legal 
dispute concerning the authorization or any representation, action, 
inaction, or submission of the CAIR authorized account representative or 
any alternate CAIR authorized account representative for a general 
account, including private legal disputes concerning the proceeds of 
CAIR SO2 allowance transfers.
    (5) Delegation by CAIR authorized account representative and 
alternate CAIR authorized account representative. (i) A CAIR authorized 
account representative may delegate, to one or more natural persons, his 
or her authority to make an electronic submission to the

[[Page 795]]

Administrator provided for or required under subparts FFF and GGG of 
this part.
    (ii) An alternate CAIR authorized account representative may 
delegate, to one or more natural persons, his or her authority to make 
an electronic submission to the Administrator provided for or required 
under subparts FFF and GGG of this part.
    (iii) In order to delegate authority to make an electronic 
submission to the Administrator in accordance with paragraph (b)(5)(i) 
or (ii) of this section, the CAIR authorized account representative or 
alternate CAIR authorized account representative, as appropriate, must 
submit to the Administrator a notice of delegation, in a format 
prescribed by the Administrator, that includes the following elements:
    (A) The name, address, e-mail address, telephone number, and 
facsimile transmission number (if any) of such CAIR authorized account 
representative 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 of 
electronic submissions under paragraph (b)(5)(i) or (ii) of this section 
for which authority is delegated to him or her;
    (D) The following certification statement by such CAIR authorized 
account representative or alternate CAIR authorized account 
representative: ``I agree that any electronic submission to the 
Administrator that is by an agent identified in this notice of 
delegation and of a type listed for such agent in this notice of 
delegation and that is made when I am a CAIR authorized account 
representative or alternate CAIR authorized representative, as 
appropriate, and before this notice of delegation is superseded by 
another notice of delegation under 40 CFR 96.251(b)(5)(iv) shall be 
deemed to be an electronic submission by me.''; and
    (E) The following certification statement by such CAIR authorized 
account representative or alternate CAIR authorized account 
representative: ``Until this notice of delegation is superseded by 
another notice of delegation under 40 CFR 96.251 (b)(5)(iv), I agree to 
maintain an e-mail account and to notify the Administrator immediately 
of any change in my e-mail address unless all delegation of 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 authorized 
account representative or alternate CAIR authorized account 
representative identified in such notice, upon receipt of such notice by 
the Administrator and until receipt by the Administrator of a 
superseding notice of delegation submitted by such CAIR authorized 
account representative or alternate CAIR authorized account 
representative, as appropriate. The superseding notice of delegation may 
replace any previously identified agent, add a new agent, or eliminate 
entirely any delegation of authority.
    (v) Any electronic submission covered by the certification in 
paragraph (b)(5)(iii)(D) of this section and made in accordance with a 
notice of delegation effective under paragraph (b)(5)(iv) of this 
section shall be deemed to be an electronic submission by the CAIR 
designated representative or alternate CAIR designated representative 
submitting such notice of delegation.
    (c) Account identification. The Administrator will assign a unique 
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 Allowance 
Tracking System account, all submissions to the Administrator pertaining 
to the account, including, but not limited to, submissions concerning 
the deduction or transfer of CAIR SO2 allowances in the 
account, shall be made only by the CAIR authorized account 
representative for the account.

[[Page 796]]



Sec. 96.253  Recordation of CAIR SO[bdi2] allowances.

    (a)(1) After a compliance account is established under Sec. 
96.251(a) or Sec. 73.31(a) or (b) of this chapter, the Administrator 
will record in the compliance account any CAIR SO2 allowance 
allocated to any CAIR SO2 unit at the source for each of the 
30 years starting the later of 2010 or the year in which the compliance 
account is established and any CAIR SO2 allowance allocated 
for each of the 30 years starting the later of 2010 or the year in which 
the compliance account is established and transferred to the source in 
accordance with subpart GGG of this part or subpart D of part 73 of this 
chapter.
    (2) In 2011 and each year thereafter, after Administrator has 
completed all deductions under Sec. 96.254(b), the Administrator will 
record in the compliance account any CAIR SO2 allowance 
allocated to any CAIR SO2 unit at the source for the new 30th 
year (i.e., the year that is 30 years after the calendar year for which 
such deductions are or could be made) and any CAIR SO2 
allowance allocated for the new 30th year and transferred to the source 
in accordance with subpart GGG of this part or subpart D of part 73 of 
this chapter.
    (b)(1) After a general account is established under Sec. 96.251(b) 
or Sec. 73.31(c) of this chapter, the Administrator will record in the 
general account any CAIR SO2 allowance allocated for each of 
the 30 years starting the later of 2010 or the year in which the general 
account is established and transferred to the general account in 
accordance with subpart GGG of this part or subpart D of part 73 of this 
chapter.
    (2) In 2011 and each year thereafter, after Administrator has 
completed all deductions under Sec. 96.254(b), the Administrator will 
record in the general account any CAIR SO2 allowance 
allocated for the new 30th year (i.e., the year that is 30 years after 
the calendar year for which such deductions are or could be made) and 
transferred to the general account in accordance with subpart GGG of 
this part or subpart D of part 73 of this chapter.
    (c) Serial numbers for allocated CAIR SO2 allowances. 
When recording the allocation of CAIR SO2 allowances issued 
by a permitting authority under Sec. 96.288, the Administrator will 
assign each such CAIR SO2 allowance a unique identification 
number that will include digits identifying the year of the control 
period for which the CAIR SO2 allowance is allocated.



Sec. 96.254  Compliance with CAIR SO[bdi2] emissions limitation.

    (a) Allowance transfer deadline. The CAIR SO2 allowances 
are available to be deducted for compliance with a source's CAIR 
SO2 emissions limitation for a control period in a given 
calendar year only if the CAIR SO2 allowances:
    (1) Were allocated for the control period in the year or a prior 
year; and
    (2) Are held in the compliance account as of the allowance transfer 
deadline for the control period or are transferred into the compliance 
account by a CAIR SO2 allowance transfer correctly submitted 
for recordation under Sec. Sec. 96.260 and 96.261 by the allowance 
transfer deadline for the control period.
    (b) Deductions for compliance. Following the recordation, in 
accordance with Sec. 96.261, of CAIR SO2 allowance transfers 
submitted for recordation in a source's compliance account by the 
allowance transfer deadline for a control period, the Administrator will 
deduct from the compliance account CAIR SO2 allowances 
available under paragraph (a) of this section in order to determine 
whether the source meets the CAIR SO2 emissions limitation 
for the control period as follows:
    (1) For a CAIR SO2 source subject to an Acid Rain 
emissions 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 a permitting 
authority under Sec. 96.288, that is required under Sec. Sec. 73.35(b) 
and (c) of this part. If there are sufficient CAIR SO2 
allowances to complete this deduction, the deduction will be treated as 
satisfying the requirements of Sec. Sec. 73.35(b) and (c) of this 
chapter.
    (ii) Deduct the amount of CAIR SO2 allowances, not issued 
by a permitting authority under Sec. 96.288, that is required under 
Sec. Sec. 73.35(d) and 77.5 of this part. If there are sufficient CAIR 
SO2 allowances to complete this deduction,

[[Page 797]]

the deduction will be treated as satisfying the requirements of 
Sec. Sec. 73.35(d) and 77.5 of this chapter.
    (iii) Treating the CAIR SO2 allowances deducted under 
paragraph (b)(1)(i) of this section as also being deducted under this 
paragraph (b)(1)(iii), deduct CAIR SO2 allowances available 
under paragraph (a) of this section (including any issued by a 
permitting authority under Sec. 96.288) in order to determine whether 
the source meets the CAIR SO2 emissions limitation for the 
control period, as follows:
    (A) Until the tonnage equivalent of the CAIR SO2 
allowances deducted equals, or exceeds in accordance with paragraphs 
(c)(1) and (2) of this section, the number of tons of total sulfur 
dioxide emissions, determined in accordance with subpart HHH of this 
part, from all CAIR SO2 units at the source for the control 
period; or
    (B) If there are insufficient CAIR SO2 allowances to 
complete the deductions in paragraph (b)(1)(iii)(A) of this section, 
until no more CAIR SO2 allowances available under paragraph 
(a) of this section (including any issued by a permitting authority 
under Sec. 96.288) remain in the compliance account.
    (2) For a CAIR SO2 source not subject to an Acid Rain 
emissions limitation, the Administrator will deduct CAIR SO2 
allowances available under paragraph (a) of this section (including any 
issued by a permitting authority under Sec. 96.288) in order to 
determine whether the source meets the CAIR SO2 emissions 
limitation for the control period, as follows:
    (i) Until the tonnage equivalent of the CAIR SO2 
allowances deducted equals, or exceeds in accordance with paragraphs 
(c)(1) and (2) of this section, the number of tons of total sulfur 
dioxide emissions, determined in accordance with subpart HHH of this 
part, from all CAIR SO2 units at the source for the control 
period; or
    (ii) If there are insufficient CAIR SO2 allowances to 
complete the deductions in paragraph (b)(2)(i) of this section, until no 
more CAIR SO2 allowances available under paragraph (a) of 
this section (including any issued by a permitting authority under Sec. 
96.288) remain in the compliance account.
    (c)(1) Identification of CAIR SO2 allowances by serial 
number. The CAIR authorized account representative for a source's 
compliance account may request that specific CAIR SO2 
allowances, identified by serial number, in the compliance account be 
deducted for emissions or excess emissions for a control period in 
accordance with paragraph (b) or (d) of this section. Such request shall 
be submitted to the Administrator by the allowance transfer deadline for 
the control period and include, in a format prescribed by the 
Administrator, the identification of the CAIR SO2 source and 
the appropriate serial numbers.
    (2) First-in, first-out. The Administrator will deduct CAIR 
SO2 allowances under paragraph (b) or (d) of this section 
from the source's compliance account, in the absence of an 
identification or in the case of a partial identification of CAIR 
SO2 allowances by serial number under paragraph (c)(1) of 
this section, on a first-in, first-out (FIFO) accounting basis in the 
following order:
    (i) Any CAIR SO2 allowances that were allocated to the 
units at the source for a control period before 2010, in the order of 
recordation;
    (ii) Any CAIR SO2 allowances that were allocated to any 
entity for a control period before 2010 and transferred and recorded in 
the compliance account pursuant to subpart GGG of this part or subpart D 
of part 73 of this chapter, in the order of recordation;
    (iii) Any CAIR SO2 allowances that were allocated to the 
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 to any 
entity for a control period during 2010 through 2014 and transferred and 
recorded in the compliance account pursuant to subpart GGG of this part 
or subpart D of part 73 of this chapter, in the order of recordation;
    (v) Any CAIR SO2 allowances that were allocated to the 
units at the source for a control period in 2015 or later, in the order 
of recordation; and

[[Page 798]]

    (vi) Any CAIR SO2 allowances that were allocated to any 
entity for a control period in 2015 or later and transferred and 
recorded in the compliance account pursuant to subpart GGG of this part 
or subpart D of part 73 of this chapter, in the order of recordation.
    (d) Deductions for excess emissions. (1) After making the deductions 
for compliance under paragraph (b) of this section for a control period 
in a calendar year in which the CAIR SO2 source has excess 
emissions, the Administrator will deduct from the source's compliance 
account the tonnage equivalent in CAIR SO2 allowances, 
allocated for the control period in the immediately following calendar 
year (including any issued by a permitting authority under Sec. 
96.288), equal to, or exceeding in accordance with paragraphs (c)(1) and 
(2) of this section, 3 times the following amount: the number of tons of 
the source's excess emissions minus, if the source is subject to an Acid 
Rain emissions limitation, the amount of the CAIR SO2 
allowances required to be deducted under paragraph (b)(1)(ii) of this 
section.
    (2) Any allowance deduction required under paragraph (d)(1) of this 
section shall not affect the liability of the owners and operators of 
the CAIR SO2 source or the CAIR SO2 units at the 
source for any fine, penalty, or assessment, or their obligation to 
comply with any other remedy, for the same violations, as ordered under 
the Clean Air Act or applicable State law.
    (e) Recordation of deductions. The Administrator will record in the 
appropriate compliance account all deductions from such an account under 
paragraphs (b) and (d) of this section and subpart III.
    (f) Administrator's action on submissions. (1) The Administrator may 
review and conduct independent audits concerning any submission under 
the CAIR SO2 Trading Program and make appropriate adjustments 
of the information in the submissions.
    (2) The Administrator may deduct CAIR SO2 allowances from 
or transfer CAIR SO2 allowances to a source's compliance 
account based on the information in the submissions, as adjusted under 
paragraph (f)(1) of this section, and record such deductions 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 use or 
transfer in a compliance account or a general account in accordance with 
paragraph (b) of this section.
    (b) Any CAIR SO2 allowance that is held in a compliance 
account or a general account will remain in such account unless and 
until the CAIR SO2 allowance is deducted or transferred under 
Sec. 96.254, Sec. 96.256, or subpart GGG or III of this part.

[70 FR 25362, May 12, 2005, as amended at 71 FR 25389, Apr. 28, 2006]



Sec. 96.256  Account error.

    The Administrator may, at his or her sole discretion and on his or 
her own motion, correct any error in any CAIR SO2 Allowance 
Tracking System account. Within 10 business days of making such 
correction, the Administrator will notify the CAIR authorized account 
representative for the account.



Sec. 96.257  Closing of general accounts.

    (a) The CAIR authorized account representative of a general account 
may submit to the Administrator a request to close the account, which 
shall include a correctly submitted allowance transfer under Sec. Sec. 
96.260 and 96.261 for any CAIR SO2 allowances in the account 
to one or more other CAIR SO2 Allowance Tracking System 
accounts.
    (b) If a general account has no allowance transfers in or out of the 
account for a 12-month period or longer and does not contain any CAIR 
SO2 allowances, the Administrator may notify the CAIR 
authorized account representative for the account that the account will 
be closed following 20 business days after the notice is sent. The 
account will be closed after the 20-day period unless, before the end of 
the 20-day period, the Administrator receives a correctly submitted 
transfer of CAIR SO2 allowances into the account under 
Sec. Sec. 96.260 and 96.261 or a statement submitted by the CAIR 
authorized account

[[Page 799]]

representative demonstrating to the satisfaction of the Administrator 
good cause as to why the account should 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 otherwise noted.



Sec. 96.260  Submission of CAIR SO[bdi2] allowance transfers.

    (a) A CAIR authorized account representative seeking recordation of 
a CAIR SO2 allowance transfer shall submit the transfer to 
the Administrator. To be considered correctly submitted, the CAIR 
SO2 allowance transfer shall include the following elements, 
in a format specified by the Administrator:
    (1) The account numbers of both the transferor and transferee 
accounts;
    (2) The serial number of each CAIR SO2 allowance that is 
in the transferor account and is to be transferred; and
    (3) The name and signature of the CAIR authorized account 
representatives of the transferor and transferee accounts and the dates 
signed.
    (b)(1) The CAIR authorized account representative for the transferee 
account can meet the requirements in paragraph (a)(3) of this section by 
submitting, in a format prescribed by the Administrator, a statement 
signed by the CAIR authorized account representative and identifying 
each account into which any transfer of allowances, submitted on or 
after the date on which the Administrator receives such statement, is 
authorized. Such authorization shall be binding on any CAIR authorized 
account representative for such account and shall apply to all transfers 
into the account that are submitted on or after such date of receipt, 
unless and until the Administrator receives a statement signed by the 
CAIR authorized account representative retracting the authorization for 
the account.
    (2) The statement under paragraph (b)(1) of this section shall 
include the following: ``By this signature I authorize any transfer of 
allowances into each account listed herein, except that I do not waive 
any remedies under State or Federal law to obtain correction of any 
erroneous transfers into such accounts. This authorization shall be 
binding on any CAIR authorized account representative for such account 
unless and until a statement signed by the CAIR authorized account 
representative retracting this authorization for the account is received 
by the Administrator.''



Sec. 96.261  EPA recordation.

    (a) Within 5 business days (except as necessary to perform a 
transfer in perpetuity of CAIR SO2 allowances allocated to a 
CAIR SO2 unit or as provided in paragraph (b) of this 
section) of receiving a CAIR SO2 allowance transfer, the 
Administrator will record a CAIR SO2 allowance transfer by 
moving each CAIR SO2 allowance from the transferor account to 
the transferee account as specified by the request, provided that:
    (1) The transfer is correctly submitted under Sec. 96.260;
    (2) The transferor account includes each CAIR SO2 
allowance identified by serial number in the transfer; and
    (3) The transfer is in accordance with the limitation on transfer 
under Sec. 74.42 of this chapter and Sec. 74.47(c) of this chapter, as 
applicable.
    (b) A CAIR SO2 allowance transfer that is submitted for 
recordation after the allowance transfer deadline for a control period 
and that includes any CAIR SO2 allowances allocated for any 
control period before such allowance transfer deadline will not be 
recorded until after the Administrator completes the deductions under 
Sec. 96.254 for the control period immediately before such allowance 
transfer deadline.
    (c) Where a CAIR SO2 allowance transfer submitted for 
recordation fails to meet the requirements of paragraph (a) of this 
section, 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 of 
recordation of a CAIR SO2 allowance transfer under Sec. 
96.261, the Administrator will notify

[[Page 800]]

the CAIR authorized account representatives of both the transferor and 
transferee accounts.
    (b) Notification of non-recordation. Within 10 business days of 
receipt of a CAIR SO2 allowance transfer that fails to meet 
the requirements of Sec. 96.261(a), the Administrator will notify the 
CAIR authorized account representatives of 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 a CAIR 
SO2 allowance transfer for recordation following notification 
of non-recordation.



                  Subpart HHH_Monitoring and Reporting

    Source: 70 FR 25362, May 12, 2005, unless otherwise noted.



Sec. 96.270  General requirements.

    The owners and operators, and to the extent applicable, the CAIR 
designated representative, of a CAIR SO2 unit, shall comply 
with the monitoring, recordkeeping, and reporting requirements as 
provided in this subpart and in subparts F and G of part 75 of this 
chapter. For purposes of complying with such requirements, the 
definitions in Sec. 96.202 and in Sec. 72.2 of this chapter shall 
apply, and the terms ``affected unit,'' ``designated representative,'' 
and ``continuous emission monitoring system'' (or ``CEMS'') in part 75 
of this chapter shall be deemed to refer to the terms ``CAIR 
SO2 unit,'' ``CAIR designated representative,'' and 
``continuous emission monitoring system'' (or ``CEMS'') respectively, as 
defined in Sec. 96.202. The owner or operator of a unit that is not a 
CAIR SO2 unit but that is monitored under Sec. 75.16(b)(2) 
of this chapter shall comply with the same monitoring, recordkeeping, 
and reporting requirements as a CAIR SO2 unit.
    (a) Requirements for installation, certification, and data 
accounting. The owner or operator of each CAIR SO2 unit 
shall:
    (1) Install all monitoring systems required under this subpart for 
monitoring SO2 mass emissions and individual unit heat input 
(including all systems required to monitor SO2 concentration, 
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 and 75.16 of this chapter);
    (2) Successfully complete all certification tests required under 
Sec. 96.271 and meet all other requirements of this subpart and part 75 
of this chapter applicable to the monitoring systems under paragraph 
(a)(1) of this section; and
    (3) Record, report, and quality-assure the data from the monitoring 
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 monitoring system 
certification and other requirements of paragraphs (a)(1) and (2) of 
this section on or before the following dates. The owner or operator 
shall record, report, and quality-assure the data from the monitoring 
systems under paragraph (a)(1) of this section on and after the 
following dates.
    (1) For the owner or operator of a CAIR SO2 unit that 
commences commercial operation before July 1, 2008, by January 1, 2009.
    (2) For the owner or operator of a CAIR SO2 unit that 
commences commercial operation on or after July 1, 2008, by the later of 
the following dates:
    (i) January 1, 2009; or
    (ii) 90 unit operating days or 180 calendar days, whichever occurs 
first, after the date on which the unit commences commercial operation.
    (3) For the owner or operator of a CAIR SO2 unit for 
which construction of a new stack or flue or installation of add-on 
SO2 emission controls is completed after the applicable 
deadline under paragraph (b)(1), (2), (4), or (5) of this section, by 90 
unit operating days or 180 calendar days, whichever occurs first, after 
the date on which emissions first exit to the atmosphere through the new 
stack or flue or add-on SO2 emissions controls.
    (4) Notwithstanding the dates in paragraphs (b)(1) and (2) of this 
section, for the owner or operator of a unit for which a CAIR opt-in 
permit application

[[Page 801]]

is submitted and not withdrawn and a CAIR opt-in permit is not yet 
issued or denied under subpart III of this part, by the date specified 
in Sec. 96.284(b).
    (5) Notwithstanding the dates in paragraphs (b)(1) and (2) of this 
section, for the owner or operator of a CAIR SO2 opt-in unit 
under subpart III of this part, by the date on which the CAIR 
SO2 opt-in unit enters the CAIR SO2 Trading 
Program as provided in Sec. 96.284(g).
    (c) Reporting data. The owner or operator of a CAIR SO2 
unit that does not meet the applicable compliance date set forth in 
paragraph (b) of this section for any monitoring system under paragraph 
(a)(1) of this section shall, for each such monitoring system, 
determine, record, and report maximum potential (or, as appropriate, 
minimum potential) values for SO2 concentration, stack gas 
flow rate, stack gas moisture content, fuel flow rate, and any other 
parameters required to determine SO2 mass emissions and heat 
input in accordance with Sec. 75.31(b)(2) or (c)(3) of this chapter or 
section 2.4 of appendix D to part 75 of this chapter, as applicable.
    (d) Prohibitions. (1) No owner or operator of a CAIR SO2 
unit shall use any alternative monitoring system, alternative reference 
method, or any other alternative to any requirement of this subpart 
without having obtained prior written approval in accordance with Sec. 
96.275.
    (2) No owner or operator of a CAIR SO2 unit shall operate 
the unit so as to discharge, or allow to be discharged, SO2 
emissions to the atmosphere without accounting for all such emissions in 
accordance with the applicable provisions of this subpart and part 75 of 
this chapter.
    (3) No owner or operator of a CAIR SO2 unit shall disrupt 
the continuous emission monitoring system, any portion thereof, or any 
other approved emission monitoring method, and thereby avoid monitoring 
and recording SO2 mass emissions discharged into the 
atmosphere or heat input, except for periods of recertification or 
periods when calibration, quality assurance testing, or maintenance is 
performed in accordance with the applicable provisions of this subpart 
and part 75 of this chapter.
    (4) No owner or operator of a CAIR SO2 unit shall retire 
or permanently discontinue use of the continuous emission monitoring 
system, any component thereof, or any other approved monitoring system 
under this subpart, except under any one of the following circumstances:
    (i) During the period that the unit is covered by an exemption under 
Sec. 96.205 that is in effect;
    (ii) The owner or operator is monitoring emissions from the unit 
with another certified monitoring system approved, in accordance with 
the applicable provisions of this subpart and part 75 of this chapter, 
by the permitting authority for use at that unit that provides emission 
data for the same pollutant or parameter as the retired or discontinued 
monitoring system; or
    (iii) The CAIR designated representative submits notification of the 
date of certification testing of a replacement monitoring system for the 
retired or discontinued monitoring system in accordance with Sec. 
96.271(d)(3)(i).
    (e) Long-term cold storage. The owner or operator of a CAIR 
SO2 unit is subject to the applicable provisions of part 75 
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 be 
exempt from the initial certification requirements of this section for a 
monitoring system under Sec. 96.270(a)(1) if the following conditions 
are met:
    (1) The monitoring system has been previously certified in 
accordance with part 75 of this chapter; and
    (2) The applicable quality-assurance and quality-control 
requirements of Sec. 75.21 of this chapter and appendix B and appendix 
D to part 75 of this chapter are fully met for the certified monitoring 
system described in paragraph (a)(1) of this section.

[[Page 802]]

    (b) The recertification provisions of this section shall apply to a 
monitoring system under Sec. 96.270(a)(1) exempt from initial 
certification requirements under paragraph (a) of this section.
    (c) [Reserved]
    (d) Except as provided in paragraph (a) of this section, the owner 
or operator of a CAIR SO2 unit shall comply with the 
following initial certification and recertification procedures, for a 
continuous monitoring system (i.e., a continuous emission monitoring 
system and an excepted monitoring system under appendix D to part 75 of 
this chapter) under Sec. 96.270(a)(1). The owner or operator of a unit 
that qualifies to use the low mass emissions excepted monitoring 
methodology under Sec. 75.19 of this chapter or that qualifies to use 
an alternative monitoring system under subpart E of part 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 or operator 
shall ensure that each continuous monitoring system under Sec. 
96.270(a)(1) (including the automated data acquisition and handling 
system) successfully completes all of the initial certification testing 
required under Sec. 75.20 of this chapter by the applicable deadline in 
Sec. 96.270(b). In addition, whenever the owner or operator installs a 
monitoring system to meet the requirements of this subpart in a location 
where no such monitoring system was previously installed, initial 
certification in accordance with Sec. 75.20 of this chapter is 
required.
    (2) Requirements for recertification. Whenever the owner or operator 
makes a replacement, modification, or change in any certified continuous 
emission monitoring system under Sec. 96.270(a)(1) that may 
significantly affect the ability of the system to accurately measure or 
record SO2 mass emissions or heat input rate or to meet the 
quality-assurance and quality-control requirements of Sec. 75.21 of 
this chapter or appendix B to part 75 of this chapter, the owner or 
operator shall recertify the monitoring system 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's operation that may significantly change the stack 
flow or concentration profile, the owner or operator shall recertify 
each continuous emission monitoring system whose accuracy is potentially 
affected by the change, in accordance with Sec. 75.20(b) of this 
chapter. Examples of changes to a continuous emission monitoring system 
that require recertification include: replacement of the analyzer, 
complete replacement of an existing continuous emission monitoring 
system, or change in location or orientation of the sampling probe or 
site. Any fuel flowmeter system under Sec. 96.270(a)(1) is subject to 
the recertification requirements in Sec. 75.20(g)(6) of this chapter.
    (3) Approval process for initial certification and recertification. 
Paragraphs (d)(3)(i) through (iv) of this section apply to both initial 
certification and recertification of a continuous monitoring system 
under Sec. 96.270(a)(1). For recertifications, 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 designated 
representative shall submit to the permitting authority, the appropriate 
EPA Regional Office, and the Administrator written notice of the dates 
of certification testing, in accordance with Sec. 96.273.
    (ii) Certification application. The CAIR designated representative 
shall submit to the permitting authority a certification application for 
each monitoring system. A complete certification application shall 
include the information specified in Sec. 75.63 of this chapter.
    (iii) Provisional certification date. The provisional certification 
date for a monitoring system shall be determined in accordance with 
Sec. 75.20(a)(3) of this chapter. A provisionally certified monitoring 
system may be used under the CAIR SO2 Trading Program for a 
period not to exceed 120 days after receipt by the permitting authority 
of the complete certification application for the monitoring system 
under paragraph (d)(3)(ii) of this section. Data measured

[[Page 803]]

and recorded by the provisionally certified monitoring system, in 
accordance with the requirements of part 75 of this chapter, will be 
considered valid quality-assured data (retroactive to the date and time 
of provisional certification), provided that the permitting authority 
does not invalidate the provisional certification by issuing a notice of 
disapproval within 120 days of the date of receipt of the complete 
certification application by the permitting authority.
    (iv) Certification application approval process. The permitting 
authority will issue a written notice of approval or disapproval of the 
certification application to the owner or operator within 120 days of 
receipt of the complete certification application under paragraph 
(d)(3)(ii) of this section. In the event the permitting authority does 
not issue such a notice within such 120-day period, each monitoring 
system that meets the applicable performance requirements of part 75 of 
this chapter and is included in the certification application will be 
deemed certified for use under the CAIR SO2 Trading Program.
    (A) Approval notice. If the certification application is complete 
and shows that each monitoring system meets the applicable performance 
requirements of part 75 of this chapter, then the permitting authority 
will issue a written notice of approval of the certification application 
within 120 days of receipt.
    (B) Incomplete application notice. If the certification application 
is not complete, then the permitting authority will issue a written 
notice of incompleteness that sets a reasonable date by which the CAIR 
designated representative must submit the additional information 
required to complete the certification application. If the CAIR 
designated representative does not comply with the notice of 
incompleteness by the specified date, then the permitting authority may 
issue a notice of disapproval under paragraph (d)(3)(iv)(C) of this 
section. The 120-day review period shall not begin before receipt of a 
complete certification application.
    (C) Disapproval notice. If the certification application shows that 
any monitoring system does not meet the performance requirements of part 
75 of this chapter or if the certification application is incomplete and 
the requirement for disapproval under paragraph (d)(3)(iv)(B) of this 
section is met, then the permitting authority will issue a written 
notice of disapproval of the certification application. Upon issuance of 
such notice of disapproval, the provisional certification is invalidated 
by the permitting authority and the data measured and recorded by each 
uncertified monitoring system shall not be considered valid quality-
assured data beginning with the date and hour of provisional 
certification (as defined under Sec. 75.20(a)(3) of this chapter). The 
owner or operator shall follow the procedures for loss of certification 
in paragraph (d)(3)(v) of this section for each monitoring system that 
is disapproved for initial certification.
    (D) Audit decertification. The permitting authority or, for a CAIR 
SO2 opt-in unit or a unit for which a CAIR opt-in permit 
application is submitted and not withdrawn and a CAIR opt-in permit is 
not yet issued or denied under subpart III of this part, the 
Administrator may issue a notice of disapproval of the certification 
status of a monitor in accordance with Sec. 96.272(b).
    (v) Procedures for loss of certification. If the permitting 
authority or the Administrator issues a notice of disapproval of a 
certification application under paragraph (d)(3)(iv)(C) of this section 
or a notice of 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 unit operation 
during the period of invalid data specified under Sec. 
75.20(a)(4)(iii), Sec. 75.20(g)(7), or Sec. 75.21(e) of this chapter 
and continuing until the applicable date and hour specified under Sec. 
75.20(a)(5)(i) or (g)(7) of this chapter:
    (1) For a disapproved SO2 pollutant concentration monitor 
and disapproved flow monitor, respectively, the maximum potential 
concentration of SO2 and the maximum potential flow rate, as 
defined in sections 2.1.1.1 and 2.1.4.1 of appendix A to part 75 of this 
chapter.

[[Page 804]]

    (2) For a disapproved moisture monitoring system and disapproved 
diluent gas monitoring system, respectively, the minimum potential 
moisture percentage and either the maximum potential CO2 
concentration or the minimum potential O2 concentration (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 maximum potential 
fuel flow rate, as defined in section 2.4.2.1 of appendix D to part 75 
of this chapter.
    (B) The CAIR designated representative shall submit a notification 
of certification retest dates and a new certification application in 
accordance with paragraphs (d)(3)(i) and (ii) of this section.
    (C) The owner or operator shall repeat all certification tests or 
other requirements that were failed by the monitoring system, as 
indicated in the permitting authority's or the Administrator's notice of 
disapproval, no later than 30 unit operating days after the date of 
issuance of the notice of disapproval.
    (e) Initial certification and recertification procedures for units 
using the low mass emission excepted methodology under Sec. 75.19 of 
this chapter. The owner or operator of a unit qualified to use the low 
mass emissions (LME) excepted methodology under Sec. 75.19 of this 
chapter shall meet the applicable certification and recertification 
requirements in Sec. Sec. 75.19(a)(2) and 75.20(h) of this chapter. If 
the owner or operator of such a unit elects to certify a fuel flowmeter 
system for heat input determination, the owner or operator shall also 
meet the certification and recertification requirements in Sec. 
75.20(g) of this chapter.
    (f) Certification/recertification procedures for alternative 
monitoring systems. The CAIR designated representative of each unit for 
which the owner or operator intends to use an alternative monitoring 
system approved by the Administrator and, if applicable, the permitting 
authority under subpart E of part 75 of this chapter shall comply with 
the applicable notification and application procedures 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 validation 
requirements of part 75 of this chapter, data shall be substituted using 
the applicable missing data procedures in subpart D of or appendix D to 
part 75 of this chapter.
    (b) Audit decertification. Whenever both an audit of a monitoring 
system and a review of the initial certification or recertification 
application reveal that any monitoring system should not have been 
certified or recertified because it did not meet a particular 
performance specification or other requirement under Sec. 96.271 or the 
applicable provisions of part 75 of this chapter, both at the time of 
the initial certification or recertification application submission and 
at the time of the audit, the permitting authority or, for a CAIR 
SO2 opt-in unit or a unit for which a CAIR opt-in permit 
application is submitted and not withdrawn and a CAIR opt-in permit is 
not yet issued or denied under subpart III of this part, the 
Administrator will issue a notice of disapproval of the certification 
status of such monitoring system. For the purposes of this paragraph, an 
audit shall be either a field audit or an audit of any information 
submitted to the permitting authority or the Administrator. By issuing 
the notice of disapproval, the permitting authority or the Administrator 
revokes prospectively the certification status of the monitoring system. 
The data measured and recorded by the monitoring system shall not be 
considered valid quality-assured data from the date of issuance of the 
notification of the revoked certification status until the date and time 
that the owner or operator completes subsequently approved initial 
certification or recertification tests for the monitoring system. The 
owner or operator shall follow the applicable initial certification or 
recertification procedures in Sec. 96.271 for each disapproved 
monitoring system.

[[Page 805]]



Sec. 96.273  Notifications.

    The CAIR designated representative for a CAIR SO2 unit 
shall submit written notice to the permitting authority and the 
Administrator 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 representative shall 
comply with all recordkeeping and reporting requirements in this 
section, the applicable recordkeeping and reporting requirements in 
subparts F and G of part 75 of this chapter, and the requirements of 
Sec. 96.210(e)(1).
    (b) Monitoring plans. The owner or operator of a CAIR SO2 
unit shall comply with requirements of Sec. 75.62 of this chapter and, 
for a unit for which a CAIR opt-in permit application is submitted and 
not withdrawn and a CAIR opt-in permit is not yet issued or denied under 
subpart III of this part, Sec. Sec. 96.283 and 96.284(a).
    (c) Certification applications. The CAIR designated representative 
shall submit an application to the permitting authority within 45 days 
after completing all initial certification or recertification tests 
required under Sec. 96.271, including the information required under 
Sec. 75.63 of this chapter.
    (d) Quarterly reports. The CAIR designated representative shall 
submit quarterly reports, as follows:
    (1) The CAIR designated representative shall report the 
SO2 mass emissions data and heat input data for the CAIR 
SO2 unit, in an electronic quarterly report in a format 
prescribed by the Administrator, for each calendar quarter beginning 
with:
    (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 after July 
1, 2008, the calendar quarter corresponding to the earlier of the date 
of provisional certification or the applicable deadline for initial 
certification under Sec. 96.270(b), unless that quarter is the third or 
fourth quarter of 2008, in which case reporting shall commence in the 
quarter covering January 1, 2009 through March 31, 2009;
    (iii) Notwithstanding paragraphs (d)(1)(i) and (ii) of this section, 
for a unit for which a CAIR opt-in permit application is submitted and 
not withdrawn and a CAIR opt-in permit is not yet issued or denied under 
subpart III of this part, the calendar quarter corresponding to the date 
specified in Sec. 96.284(b); and
    (iv) Notwithstanding paragraphs (d)(1)(i) and (ii) of this section, 
for a CAIR SO2 opt-in unit under subpart III of this part, 
the calendar quarter corresponding to the date on which the CAIR 
SO2 opt-in unit enters the CAIR SO2 Trading 
Program as provided in Sec. 96.284(g).
    (2) The CAIR designated representative shall submit each quarterly 
report to the Administrator within 30 days following the end of the 
calendar quarter covered by the report. Quarterly reports shall be 
submitted in the manner specified in Sec. 75.64 of this chapter.
    (3) For CAIR SO2 units that are also subject to an Acid 
Rain emissions limitation or the CAIR NOX Annual Trading 
Program CAIR NOX Ozone Season Trading Program, or Hg Budget 
Trading Porgram, quarterly reports shall include the applicable data and 
information required by subparts F through I of part 75 of this chapter 
as applicable, in addition to the SO2 mass emission data, 
heat input data, and other information required by this subpart.
    (e) Compliance certification. The CAIR designated representative 
shall submit to the Administrator a compliance certification (in a 
format prescribed by the Administrator) in support of each quarterly 
report based on reasonable inquiry of those persons with primary 
responsibility for ensuring that all of the unit's emissions are 
correctly and fully monitored. The certification shall state that:
    (1) The monitoring data submitted were recorded in accordance with 
the applicable requirements of this subpart and part 75 of this chapter, 
including the quality assurance procedures and specifications; and
    (2) For a unit with add-on SO2 emission controls and for 
all hours where SO2 data are substituted in accordance with 
Sec. 75.34(a)(1) of this chapter, the

[[Page 806]]

add-on emission controls were operating within the range of parameters 
listed in the quality assurance/quality control program under appendix B 
to part 75 of this chapter and the substitute data values do not 
systematically underestimate 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 SO2 unit 
that is subject to an Acid Rain emissions limitation may submit a 
petition under Sec. 75.66 of this chapter to the Administrator 
requesting approval to apply an alternative to any requirement of this 
subpart. Application of an alternative to any requirement of this 
subpart is in accordance with this subpart only to the extent that the 
petition is approved in writing by the Administrator, in consultation 
with the permitting authority.
    (b) The CAIR designated representative of a CAIR SO2 unit 
that is not subject to an Acid Rain emissions limitation may submit a 
petition under Sec. 75.66 of this chapter to the permitting authority 
and the Administrator requesting approval to apply an alternative to any 
requirement of this subpart. Application of an alternative to any 
requirement of this subpart is in accordance with this subpart only to 
the extent that the petition is approved in writing by both the 
permitting authority and the Administrator.



                 Subpart III_CAIR SO[bdi2] Opt-in Units

    Source: 70 FR 25362, May 12, 2005, unless otherwise noted.



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. 96.204 and is not 
covered by a retired unit exemption under Sec. 96.205 that is in 
effect;
    (c) Is not covered by a retired unit exemption under Sec. 72.8 of 
this chapter that is in effect and is not an opt-in source under part 74 
of this chapter;
    (d) Has or is required or qualified to have a title V operating 
permit or other federally enforceable permit; and
    (e) Vents all of its emissions to a stack and can meet the 
monitoring, recordkeeping, and reporting requirements of subpart HHH of 
this part.



Sec. 96.281  General.

    (a) Except as otherwise provided in Sec. Sec. 96.201 through 
96.204, Sec. Sec. 96.206 through 96.208, and subparts BBB and CCC and 
subparts FFF through HHH of this part, a CAIR SO2 opt-in unit 
shall be treated as a CAIR SO2 unit 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 a CAIR 
opt-in permit application is submitted and not withdrawn and a CAIR opt-
in permit is not yet issued or denied under this subpart, such unit 
shall be treated as a CAIR SO2 unit before issuance 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 a CAIR 
opt-in permit application is submitted and not withdrawn and a CAIR opt-
in permit is not yet issued or denied under this subpart, located at the 
same source as one or more CAIR SO2 units shall have the same 
CAIR designated representative and alternate CAIR designated 
representative as such CAIR SO2 units.



Sec. 96.283  Applying for CAIR opt-in permit.

    (a) Applying for initial CAIR opt-in permit. The CAIR designated 
representative of a unit meeting the requirements for a CAIR 
SO2 opt-in unit in Sec. 96.280 may apply for an initial CAIR 
opt-in permit at any time, except as provided under Sec. 96.286(f) and 
(g), and, in order to apply, must submit the following:
    (1) A complete CAIR permit application under Sec. 96.222;
    (2) A certification, in a format specified by the permitting 
authority, that the unit:
    (i) Is not a CAIR SO2 unit under Sec. 96.204 and is not 
covered by a retired

[[Page 807]]

unit exemption under Sec. 96.205 that is in effect;
    (ii) Is not covered by a retired unit exemption under Sec. 72.8 of 
this chapter that is in effect;
    (iii) Is not and, so long as the unit is a CAIR SO2 opt-
in unit, will not become, an opt-in source under part 74 of this 
chapter;
    (iv) Vents all of its emissions to a stack; and
    (v) Has documented heat input for more than 876 hours during the 6 
months immediately preceding submission of the CAIR permit application 
under Sec. 96.222;
    (3) A monitoring plan in accordance with subpart HHH of this part;
    (4) A complete certificate of representation under Sec. 96.213 
consistent with Sec. 96.282, if no CAIR designated representative has 
been previously designated for the source that includes the unit; and
    (5) A statement, in a format specified by the permitting authority, 
whether the CAIR designated representative requests that the unit be 
allocated CAIR SO2 allowances under Sec. 96.288(b) or Sec. 
96.288(c) (subject to the conditions in Sec. Sec. 96.284(h) and 
96.286(g)). If allocation under Sec. 96.288(c) is requested, this 
statement shall include a statement that the owners and operators of the 
unit intend to repower 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 representative of a 
CAIR SO2 opt-in unit shall submit a complete CAIR permit 
application under Sec. 96.222 to renew the CAIR opt-in unit permit in 
accordance with the permitting authority's regulations for title V 
operating permits, or the permitting authority's regulations for other 
federally enforceable permits if applicable, addressing permit renewal.
    (2) Unless the permitting authority issues a notification of 
acceptance of withdrawal of the CAIR SO2 opt-in unit from the 
CAIR SO2 Trading Program in accordance with Sec. 96.286 or 
the unit becomes a CAIR SO2 unit under Sec. 96.204, the CAIR 
SO2 opt-in unit shall remain subject to the requirements for 
a CAIR SO2 opt-in unit, even if the CAIR designated 
representative for the CAIR SO2 opt-in unit fails to submit a 
CAIR permit application that 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 permit for 
a unit for which an initial application for a CAIR opt-in permit under 
Sec. 96.283 is submitted in accordance with the following:
    (a) Interim review of monitoring plan. The permitting authority and 
the Administrator will determine, on an interim basis, the sufficiency 
of the monitoring plan accompanying the initial application for a CAIR 
opt-in permit under Sec. 96.283. A monitoring plan is sufficient, for 
purposes of interim review, if the plan appears to contain information 
demonstrating that the SO2 emissions rate and heat input of 
the unit and all other applicable parameters are monitored and reported 
in accordance with subpart HHH of this part. A determination of 
sufficiency shall not be construed as acceptance or approval of the 
monitoring plan.
    (b) Monitoring and reporting. (1)(i) If the permitting authority and 
the Administrator determine that the monitoring plan is sufficient under 
paragraph (a) of this section, the owner or operator shall monitor and 
report the SO2 emissions rate and the heat input of the unit 
and all other applicable parameters, in accordance with subpart HHH of 
this part, starting on the date of certification of the appropriate 
monitoring systems under subpart HHH of this part and continuing until a 
CAIR opt-in permit is denied under Sec. 96.284(f) or, if a CAIR opt-in 
permit is issued, the date and time when the unit is withdrawn from the 
CAIR SO2 Trading Program in accordance with Sec. 96.286.
    (ii) The monitoring and reporting under paragraph (b)(1)(i) of this 
section shall include the entire control period immediately before the 
date on which the unit enters the CAIR SO2 Trading Program 
under Sec. 96.284(g), during which period monitoring system 
availability must not be less than 90 percent under subpart HHH of this 
part and the unit must be in full compliance with any

[[Page 808]]

applicable State or Federal emissions or emissions-related requirements.
    (2) To the extent the SO2 emissions rate and the heat 
input of the unit are monitored and reported in accordance with subpart 
HHH of this part for one or more control periods, in addition to the 
control period under paragraph (b)(1)(ii) of this section, during which 
control periods monitoring system availability is not less than 90 
percent under subpart HHH of this part and the unit is in full 
compliance with any applicable State or Federal emissions or emissions-
related requirements and which control periods begin not more than 3 
years before the unit enters the CAIR SO2 Trading Program 
under Sec. 96.284(g), such information shall be used as provided in 
paragraphs (c) and (d) of this section.
    (c) Baseline heat input. The unit's baseline heat input shall equal:
    (1) If the unit's SO2 emissions rate and heat input are 
monitored and reported for only one control period, in accordance with 
paragraph (b)(1) of this section, the unit's total heat input (in mmBtu) 
for the control period; or
    (2) If the unit's SO2 emissions rate and heat input are 
monitored and reported for more than one control period, in accordance 
with paragraphs (b)(1) and (2) of this section, the average of the 
amounts of the unit's total heat input (in mmBtu) for the control 
periods under paragraphs (b)(1)(ii) and (2) of this section and the 
control periods under paragraph (b)(2) of this section.
    (d) Baseline SO2 emission rate. The unit's baseline 
SO2 emission rate shall equal:
    (1) If the unit's SO2 emissions rate and heat input are 
monitored and reported for only one control period, in accordance with 
paragraph (b)(1) of this section, the unit's SO2 emissions 
rate (in lb/mmBtu) for the control period;
    (2) If the unit's SO2 emissions rate and heat input are 
monitored and reported for more than one control period, in accordance 
with paragraphs (b)(1) and (2) of this section, and the unit does not 
have add-on SO2 emission controls during any such control 
periods, the average of the amounts of the unit's SO2 
emissions rate (in lb/mmBtu) for the control periods under paragraphs 
(b)(1)(ii) and (2) of this section; or
    (3) If the unit's SO2 emissions rate and heat input are 
monitored and reported for more than one control period, in accordance 
with paragraphs (b)(1) and (2) of this section, and the unit has add-on 
SO2 emission controls during any such control periods, the 
average of the amounts of the unit's SO2 emissions rate (in 
lb/mmBtu) for such control periods during which the unit has add-on 
SO2 emission controls.
    (e) Issuance of CAIR opt-in permit. After calculating the baseline 
heat input and the baseline SO2 emissions rate for the unit 
under paragraphs (c) and (d) of this section and if the permitting 
authority determines that the CAIR designated representative shows that 
the unit meets the requirements for a CAIR SO2 opt-in unit in 
Sec. 96.280 and meets the elements certified in Sec. 96.283(a)(2), the 
permitting authority will issue a CAIR opt-in permit. The permitting 
authority will provide a copy of the CAIR opt-in permit to the 
Administrator, who will then establish a compliance account for the 
source that includes the CAIR SO2 opt-in unit unless 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 any time before 
issuance of a CAIR opt-in permit for the unit, the permitting authority 
determines that the CAIR designated representative fails to show that 
the unit meets the requirements for a CAIR SO2 opt-in unit in 
Sec. 96.280 or meets the elements certified in Sec. 96.283(a)(2), the 
permitting authority will issue a denial of a CAIR opt-in permit for the 
unit.
    (g) Date of entry into CAIR SO2 Trading Program. A unit 
for which an initial CAIR opt-in permit is issued by the permitting 
authority shall become a CAIR SO2 opt-in unit, and a CAIR 
SO2 unit, as of the later of January 1, 2010 or January 1 of 
the first control period during which such CAIR opt-in permit is issued.
    (h) Repowered CAIR SO2 opt-in unit. (1) If CAIR 
designated representative requests, and the permitting authority issues 
a CAIR opt-in permit providing

[[Page 809]]

for, allocation to a CAIR SO2 opt-in unit of CAIR 
SO2 allowances under Sec. 96.288(c) and such unit is 
repowered after its date of entry into the CAIR SO2 Trading 
Program under paragraph (g) of this section, the repowered unit shall be 
treated as a CAIR SO2 opt-in unit replacing the original CAIR 
SO2 opt-in unit, as of the date of start-up of the repowered 
unit's combustion chamber.
    (2) Notwithstanding paragraphs (c) and (d) of this section, as of 
the date of start-up under paragraph (h)(1) of this section, the 
repowered unit shall be deemed to have the same date of commencement of 
operation, date of commencement of commercial operation, baseline heat 
input, and baseline SO2 emission rate as the original CAIR 
SO2 opt-in unit, and the original CAIR SO2 opt-in 
unit shall no longer be treated as a CAIR SO2 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 application 
under 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 under Sec. 
96.284(d);
    (5) A statement whether the unit is to be allocated CAIR 
SO2 allowances Sec. 96.288(b) or Sec. 96.288(c) (subject to 
the conditions in Sec. Sec. 96.284(h) and 96.286(g));
    (6) A statement that the unit may withdraw from the CAIR 
SO2 Trading Program only in accordance with Sec. 96.286; and
    (7) A statement that the unit is subject to, and the owners and 
operators of the unit must comply with, the requirements of Sec. 
96.287.
    (b) Each CAIR opt-in permit is deemed to incorporate automatically 
the definitions of terms under Sec. 96.202 and, upon recordation by the 
Administrator under subpart FFF or GGG of this part or this subpart, 
every allocation, transfer, or deduction of CAIR SO2 
allowances to or from the compliance account of the source that includes 
a CAIR SO2 opt-in unit covered by the CAIR opt-in permit.
    (c) The CAIR opt-in permit shall be included, in a format specified 
by the permitting authority, in the CAIR permit for the source where the 
CAIR SO2 opt-in unit is located and in a title V operating 
permit or other federally enforceable permit for the source.

[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 CAIR 
SO2 opt-in unit may withdraw from the CAIR SO2 
Trading Program, but only if the permitting authority issues a 
notification to the CAIR designated representative of the CAIR 
SO2 opt-in unit of the acceptance of the withdrawal of the 
CAIR SO2 opt-in unit in accordance with paragraph (d) of this 
section.
    (a) Requesting withdrawal. In order to withdraw a CAIR 
SO2 opt-in unit from the CAIR SO2 Trading Program, 
the CAIR designated representative of the CAIR SO2 opt-in 
unit shall submit to the permitting authority a request to withdraw 
effective as of midnight of December 31 of a specified calendar year, 
which date must be at least 4 years after December 31 of the year of 
entry into the CAIR SO2 Trading Program under Sec. 
96.284(g). The request must be submitted no later than 90 days before 
the requested effective date of withdrawal.
    (b) Conditions for withdrawal. Before a CAIR SO2 opt-in 
unit covered by a request under paragraph (a) of this section may 
withdraw from the CAIR SO2 Trading Program and the CAIR opt-
in permit may be terminated under paragraph (e) of this section, the 
following conditions must be met:
    (1) For the control period ending on the date on which the 
withdrawal is to be effective, the source that includes the CAIR 
SO2 opt-in unit must meet the requirement to hold CAIR 
SO2 allowances under Sec. 96.206(c) and cannot have any 
excess emissions.
    (2) After the requirement for withdrawal under paragraph (b)(1) of 
this section is met, the Administrator will deduct from the compliance 
account of

[[Page 810]]

the source that includes the CAIR SO2 opt-in unit CAIR 
SO2 allowances equal in amount to and allocated for the same 
or a prior control period as any CAIR SO2 allowances 
allocated to the CAIR SO2 opt-in unit under Sec. 96.288 for 
any control period for which the withdrawal is to be effective. If there 
are no remaining CAIR SO2 units at the source, the 
Administrator will close the compliance account, and the owners and 
operators of the CAIR SO2 opt-in unit may submit a CAIR 
SO2 allowance transfer for any remaining CAIR SO2 
allowances to another CAIR SO2 Allowance Tracking System in 
accordance with subpart GGG of this part.
    (c) Notification. (1) After the requirements for withdrawal under 
paragraphs (a) and (b) of this section are met (including deduction of 
the full amount of CAIR SO2 allowances required), the 
permitting authority will issue a notification to the CAIR designated 
representative of the CAIR SO2 opt-in unit of the acceptance 
of the withdrawal of the CAIR SO2 opt-in unit as of midnight 
on December 31 of the calendar year for which the withdrawal was 
requested.
    (2) If the requirements for withdrawal under paragraphs (a) and (b) 
of this section are not met, the permitting authority will issue a 
notification to the CAIR designated representative of the CAIR 
SO2 opt-in unit that the CAIR SO2 opt-in unit's 
request to withdraw is denied. Such CAIR SO2 opt-in unit 
shall continue to be a CAIR SO2 opt-in unit.
    (d) Permit amendment. After the permitting authority issues a 
notification under paragraph (c)(1) of this section that the 
requirements for withdrawal have been met, the permitting authority will 
revise the CAIR permit covering the CAIR SO2 opt-in unit to 
terminate the CAIR opt-in permit for such unit as of the effective date 
specified under paragraph (c)(1) of this section. The unit shall 
continue to be a CAIR SO2 opt-in unit until the effective 
date of the termination and shall comply with all requirements under the 
CAIR SO2 Trading Program concerning any control periods for 
which the unit is a CAIR SO2 opt-in unit, even if such 
requirements arise or must be complied with after the withdrawal takes 
effect.
    (e) Reapplication upon failure to meet conditions of withdrawal. If 
the permitting authority denies the CAIR SO2 opt-in unit's 
request to withdraw, the CAIR designated representative may submit 
another request to withdraw in accordance with paragraphs (a) and (b) of 
this section.
    (f) Ability to reapply to the CAIR SO2 Trading Program. 
Once a CAIR SO2 opt-in unit withdraws from the CAIR 
SO2 Trading Program and its CAIR opt-in permit is terminated 
under this section, the CAIR designated representative may not submit 
another application for a CAIR opt-in permit under Sec. 96.283 for such 
CAIR SO2 opt-in unit before the date that is 4 years after 
the date on which the withdrawal became effective. Such new application 
for a CAIR opt-in permit will be treated as 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 shall not be 
eligible to withdraw from the CAIR SO2 Trading Program if the 
CAIR designated representative of the CAIR SO2 opt-in unit 
requests, and the permitting authority issues a CAIR opt-in permit 
providing for, allocation to the CAIR SO2 opt-in unit of CAIR 
SO2 allowances under Sec. 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 unit becomes a 
CAIR SO2 unit under Sec. 96.204, then the CAIR designated 
representative shall notify in writing the permitting authority and the 
Administrator of such change in the CAIR SO2 opt-in unit's 
regulatory status, within 30 days of such change.
    (b) Permitting authority's and Administrator's actions. (1) If a 
CAIR SO2 opt-in unit becomes a CAIR SO2 unit under 
Sec. 96.204, the permitting authority will revise the CAIR 
SO2 opt-in unit's CAIR opt-in permit to meet the requirements 
of a CAIR permit under Sec. 96.223, and remove the CAIR opt-in permit 
provisions, as of the date on which the CAIR SO2 opt-in unit 
becomes a CAIR SO2 unit under Sec. 96.204.
    (2)(i) The Administrator will deduct from the compliance account of 
the

[[Page 811]]

source that includes a CAIR SO2 opt-in unit that becomes a 
CAIR SO2 unit under Sec. 96.204, CAIR SO2 
allowances equal in amount to and allocated for the same or a prior 
control period as:
    (A) Any CAIR SO2 allowances allocated to the CAIR 
SO2 opt-in unit under Sec. 96.288 for any control period 
after the date on which the CAIR SO2 opt-in unit becomes a 
CAIR SO2 unit under Sec. 96.204; and
    (B) If the date on which the CAIR SO2 opt-in unit becomes 
a CAIR SO2 unit under Sec. 96.204 is not December 31, the 
CAIR SO2 allowances allocated to the CAIR SO2 opt-
in unit under Sec. 96.288 for the control period that includes the date 
on which the CAIR SO2 opt-in unit becomes a CAIR 
SO2 unit under Sec. 96.204, multiplied by the ratio of the 
number of days, in the control period, starting with the date on which 
the CAIR SO2 opt-in unit becomes a CAIR SO2 unit 
under Sec. 96.204 divided by the total number of days in the control 
period and rounded to the nearest whole allowance as appropriate.
    (ii) The CAIR designated representative shall ensure that the 
compliance account of the source that includes the CAIR SO2 
opt-in unit that becomes a CAIR SO2 unit under Sec. 96.204 
contains the CAIR SO2 allowances 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-in 

units.

    (a) Timing requirements. (1) When the CAIR opt-in permit is issued 
under Sec. 96.284(e), the permitting authority will allocate CAIR 
SO2 allowances to the CAIR SO2 opt-in unit, and 
submit to the Administrator the allocation for the control period in 
which a CAIR SO2 opt-in unit enters the CAIR 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 the 
control period in which a CAIR SO2 opt-in unit enters the 
CAIR SO2 Trading Program under Sec. 96.284(g) and October 31 
of each year thereafter, the permitting authority will allocate CAIR 
SO2 allowances to the CAIR SO2 opt-in unit, and 
submit to the Administrator the allocation for the control period that 
includes such submission deadline and in which the unit is a CAIR 
SO2 opt-in unit, in accordance with paragraph (b) or (c) of 
this section.
    (b) Calculation of allocation. For each control period for which a 
CAIR SO2 opt-in unit is to be allocated CAIR SO2 
allowances, the permitting authority will allocate in accordance with 
the following procedures:
    (1) The heat input (in mmBtu) used for calculating the CAIR 
SO2 allowance allocation will be the lesser of:
    (i) The CAIR SO2 opt-in unit's baseline heat input 
determined under Sec. 96.284(c); or
    (ii) The CAIR SO2 opt-in unit's heat input, as determined 
in accordance with subpart HHH of this part, for the immediately prior 
control period, except when the allocation is being calculated for the 
control period in which the CAIR SO2 opt-in unit enters the 
CAIR SO2 Trading Program under Sec. 96.284(g).
    (2) The SO2 emission rate (in lb/mmBtu) used for 
calculating CAIR SO2 allowance allocations will be the lesser 
of:
    (i) The CAIR SO2 opt-in unit's baseline SO2 
emissions rate (in lb/mmBtu) determined under Sec. 96.284(d) and 
multiplied by 70 percent; or
    (ii) The most stringent State or Federal SO2 emissions 
limitation applicable to the CAIR SO2 opt-in unit at any time 
during the control period for which CAIR SO2 allowances are 
to be allocated.
    (3) The permitting authority will allocate CAIR SO2 
allowances to the CAIR SO2 opt-in unit with a tonnage 
equivalent equal to, or less than by the smallest possible amount, the 
heat input under paragraph (b)(1) of this section, multiplied by the 
SO2 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 CAIR 
designated representative requests, and the permitting authority issues 
a CAIR opt-in permit (based on a demonstration of the intent to repower 
stated under Sec. 96.283(a)(5)) providing for, allocation to a CAIR 
SO2 opt-in unit of CAIR SO2

[[Page 812]]

allowances under this paragraph (subject to the conditions in Sec. Sec. 
96.284(h) and 96.286(g)), the permitting authority will allocate to the 
CAIR SO2 opt-in unit as follows:
    (1) For each control period in 2010 through 2014 for which the CAIR 
SO2 opt-in unit is to be allocated CAIR SO2 
allowances,
    (i) The heat input (in mmBtu) used for calculating CAIR 
SO2 allowance allocations will be determined as described in 
paragraph (b)(1) of this section.
    (ii) The SO2 emission rate (in lb/mmBtu) used for 
calculating CAIR SO2 allowance allocations will be the lesser 
of:
    (A) The CAIR SO2 opt-in unit's baseline SO2 
emissions rate (in lb/mmBtu) determined under Sec. 96.284(d); or
    (B) The most stringent State or Federal SO2 emissions 
limitation applicable to the CAIR SO2 opt-in unit at any time 
during the control period in which the CAIR SO2 opt-in unit 
enters the CAIR SO2 Trading Program under Sec. 96.284(g).
    (iii) The permitting authority will allocate CAIR SO2 
allowances to the CAIR SO2 opt-in unit with a tonnage 
equivalent equal to, or less than by the smallest possible amount, the 
heat input under paragraph (c)(1)(i) of this section, multiplied by the 
SO2 emission rate under paragraph (c)(1)(ii) of this section, 
and divided by 2,000 lb/ton.
    (2) For each control period in 2015 and thereafter for which the 
CAIR SO2 opt-in unit is to be allocated CAIR SO2 
allowances,
    (i) The heat input (in mmBtu) used for calculating the CAIR 
SO2 allowance allocations will be determined as described in 
paragraph (b)(1) of this section.
    (ii) The SO2 emission rate (in lb/mmBtu) used for 
calculating the CAIR SO2 allowance allocation will be the 
lesser of:
    (A) The CAIR SO2 opt-in unit's baseline SO2 
emissions rate (in lb/mmBtu) determined under Sec. 96.284(d) multiplied 
by 10 percent; or
    (B) The most stringent State or Federal SO2 emissions 
limitation applicable to the CAIR SO2 opt-in unit at any time 
during the control period for which CAIR SO2 allowances are 
to be allocated.
    (iii) The permitting authority will allocate CAIR SO2 
allowances to the CAIR SO2 opt-in unit with a tonnage 
equivalent equal to, or less than by the smallest possible amount, the 
heat input under paragraph (c)(2)(i) of this section, multiplied by the 
SO2 emission rate under paragraph (c)(2)(ii) of this section, 
and divided by 2,000 lb/ton.
    (d) Recordation. (1) The Administrator will record, in the 
compliance account of the source that includes the CAIR SO2 
opt-in unit, the CAIR SO2 allowances allocated 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 CAIR 
SO2 opt-in unit enters the CAIR SO2 Trading 
Program under Sec. 96.284(g), and December 1 of each year thereafter, 
the Administrator will record, in the compliance account of the source 
that includes the CAIR SO2 opt-in unit, the CAIR 
SO2 allowances allocated by the permitting authority 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 Trading Program General Provisions

    Source: 70 FR 25382, May 12, 2005, unless otherwise noted.



Sec. 96.301  Purpose.

    This subpart and subparts BBBB through IIII establish the model rule 
comprising general provisions and the designated representative, 
permitting, allowance, monitoring, and opt-in provisions for the State 
Clean Air Interstate Rule (CAIR) NOX Ozone Season Trading 
Program, under section 110 of the Clean Air Act and Sec. 51.123 of this 
chapter, as a means of mitigating interstate transport of ozone and 
nitrogen oxides. The owner or operator of a unit or a source shall 
comply with the requirements of this subpart and subparts BBBB through 
IIII as a matter of

[[Page 813]]

federal law only if the State with jurisdiction over the unit and the 
source incorporates by reference such subparts or otherwise adopts the 
requirements of such subparts in accordance with Sec. 51.123(aa)(1) or 
(2), of this chapter, the State submits to the Administrator one or more 
revisions of the State implementation plan that include such adoption, 
and the Administrator approves such revisions. If the State adopts the 
requirements of such subparts in accordance with Sec. 51.123(aa)(1) or 
(2), (bb), or (dd) of this chapter, then the State authorizes the 
Administrator to assist the State in implementing the CAIR 
NOX Ozone Season Trading Program by carrying out the 
functions set forth for the Administrator in such subparts.



Sec. 96.302  Definitions.

    The terms used in this subpart and subparts BBBB through IIII shall 
have the meanings set forth in this section as follows:
    Account number means the identification number given by the 
Administrator to each CAIR NOX Ozone Season Allowance 
Tracking System account.
    Acid Rain emissions limitation means a limitation on emissions of 
sulfur dioxide or nitrogen oxides under the Acid Rain Program.
    Acid Rain Program means a multi-state sulfur dioxide and nitrogen 
oxides air pollution control and emission reduction program established 
by the Administrator under title IV of the CAA and parts 72 through 78 
of this chapter.
    Administrator means the Administrator of the United States 
Environmental Protection Agency or the Administrator's duly authorized 
representative.
    Allocate or allocation means, with regard to CAIR NOX 
Ozone Season allowances, the determination by a permitting authority or 
the Administrator of the amount of such CAIR NOX Ozone Season 
allowances to be initially credited to a CAIR NOX Ozone 
Season unit, a new unit set-aside, or other entity.
    Allowance transfer deadline means, for a control period, midnight of 
November 30 (if it is a business day), or midnight of the first business 
day thereafter (if November 30 is not a business day), immediately 
following the control period and is the deadline by which a CAIR 
NOX Ozone Season allowance transfer must be submitted for 
recordation in a CAIR NOX Ozone Season source's compliance 
account in order to be used to meet the source's CAIR NOX 
Ozone Season emissions limitation for such control period in accordance 
with Sec. 96.354.
    Alternate CAIR designated representative means, for a CAIR 
NOX Ozone Season source and each CAIR NOX Ozone 
Season unit at the source, the natural person who is authorized by the 
owners and operators of the source and all such units at the source, in 
accordance with subparts BBBB and IIII of this part, to act on behalf of 
the CAIR designated representative in matters pertaining to the CAIR 
NOX Ozone Season Trading Program. If the CAIR NOX 
Ozone Season source is also a CAIR NOX source, then this 
natural person shall be the same person as the alternate CAIR designated 
representative under the CAIR NOX Annual Trading Program. If 
the CAIR NOX Ozone Season source is also a CAIR 
SO2 source, then this natural person shall be the same person 
as the alternate CAIR designated representative under the CAIR 
SO2 Trading Program. If the CAIR NOX Ozone Season 
source is also subject to the Acid Rain Program, then this natural 
person shall be the same person as the alternate designated 
representative under the Acid Rain Program. If the CAIR NOX 
Ozone Season source is also subject to the Hg Budget Trading Program, 
then this natural person shall be the same person as the alternate Hg 
designated representative under the Hg Budget Trading Program.
    Automated data acquisition and handling system or DAHS means that 
component of the continuous emission monitoring system, or other 
emissions monitoring system approved for use under subpart HHHH of this 
part, designed to interpret and convert individual output signals from 
pollutant concentration monitors, flow monitors, diluent gas monitors, 
and other component parts of the monitoring system to produce a 
continuous record of the measured parameters in the measurement units 
required by subpart HHHH of this part.
    Biomass means--

[[Page 814]]

    (1) Any organic material grown for the purpose of being converted to 
energy;
    (2) Any organic byproduct of agriculture that can be converted into 
energy; or
    (3) Any material that can be converted into energy and is 
nonmerchantable for other purposes, that is segregated from other 
nonmerchantable material, and that is;
    (i) A forest-related organic resource, including mill residues, 
precommercial thinnings, slash, brush, or byproduct from conversion 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-fired combustion 
device used to produce heat and to transfer heat to recirculating water, 
steam, or other medium.
    Bottoming-cycle cogeneration unit means a cogeneration unit in which 
the energy input to the unit is first used to produce useful thermal 
energy and at least some of the reject heat from the useful thermal 
energy application or process is then used for electricity production.
    CAIR authorized account representative means, with regard to a 
general account, a responsible natural person who is authorized, in 
accordance with subparts BBBB, FFFF, and IIII of this part, to transfer 
and otherwise dispose of CAIR NOX Ozone Season allowances 
held in the general account and, with regard to a compliance account, 
the CAIR designated representative of the source.
    CAIR designated representative means, for a CAIR NOX 
Ozone Season source and each CAIR NOX Ozone Season unit at 
the source, the natural person who is authorized by the owners and 
operators of the source and all such units at the source, in accordance 
with subparts BBBB and IIII of this part, to represent and legally bind 
each owner and operator in matters pertaining to the CAIR NOX 
Ozone Season Trading Program. If the CAIR NOX Ozone Season 
source is also a CAIR NOX source, then this natural person 
shall be the same person as the CAIR designated representative under the 
CAIR NOX Annual Trading Program. If the CAIR NOX 
Ozone Season source is also a CAIR SO2 source, then this 
natural person shall be the same person as the CAIR designated 
representative under the CAIR SO2 Trading Program. If the 
CAIR NOX Ozone Season source is also subject to the Acid Rain 
Program, then this natural person shall be the same person as the 
designated representative under the Acid Rain Program. If the CAIR 
NOX Ozone Season source is also subject to the Hg Budget 
Trading Program, then this natural person shall be the same person as 
the Hg designated representative under the Hg Budget Trading Program.
    CAIR NOX Annual Trading Program means a multi-state nitrogen oxides 
air pollution control and emission reduction program approved and 
administered by the Administrator in accordance with subparts AA through 
II of this part and Sec. 51.123(o)(1) or (2) of this chapter or 
established by the Administrator in accordance with subparts AA through 
II of part 97 of this chapter and Sec. Sec. 51.123(p) and 52.35 of this 
chapter, as a means of mitigating interstate transport of fine 
particulates and nitrogen oxides.
    CAIR NOX Ozone Season allowance means a limited authorization issued 
by a permitting authority or the Administrator under provisions of a 
State implementation plan that are approved 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 97 or Sec. 97.388 of this chapter, to emit one ton 
of nitrogen oxides during a control period of the specified calendar 
year for which the authorization is allocated or of any calendar year 
thereafter under the CAIR NOX Ozone Season Trading Program or 
a limited authorization issued by a permitting authority for a control 
period during 2003 through 2008 under the NOX Budget Trading 
Program in accordance with Sec. 51.121(p) of this chapter to emit one 
ton of nitrogen oxides during a control period, provided that the 
provision in Sec. 51.121(b)(2)(ii)(E) of this chapter shall not be used 
in applying this definition and the limited authorization shall not

[[Page 815]]

have been used to meet the allowance-holding requirement under the 
NOX Budget Trading Program. An authorization to emit nitrogen 
oxides that is not issued under provisions of a State implementation 
plan approved under Sec. 51.123(aa)(1) or (2) (and (bb)(1)), (bb)(2), 
(dd), or (ee) of this chapter or subpart EEEE of part 97 or Sec. 97.388 
of this chapter or under the NOX Budget Trading Program as 
described in the prior sentence shall not be a CAIR NOX Ozone 
Season allowance.
    CAIR NOX Ozone Season allowance deduction or deduct CAIR NOX Ozone 
Season allowances means the permanent withdrawal of CAIR NOX 
Ozone Season allowances by the Administrator from a compliance account, 
e.g., in order to account for a specified number of tons of total 
nitrogen oxides emissions from all CAIR NOX Ozone Season 
units at a CAIR NOX Ozone Season source for a control period, 
determined in accordance with subpart HHHH of this part, or to account 
for excess emissions.
    CAIR NOX Ozone Season Allowance Tracking System means the system by 
which the Administrator records allocations, deductions, and transfers 
of CAIR NOX Ozone Season allowances under the CAIR 
NOX Ozone Season Trading Program. Such allowances will be 
allocated, held, deducted, or transferred only as whole allowances.
    CAIR NOX Ozone Season Allowance Tracking System account means an 
account in the CAIR NOX Ozone Season Allowance Tracking 
System established by the Administrator for purposes of recording the 
allocation, holding, transferring, or deducting of CAIR NOX 
Ozone Season allowances.
    CAIR NOX Ozone Season allowances held or hold CAIR NOX Ozone Season 
allowances means the CAIR NOX Ozone Season allowances 
recorded by the Administrator, or submitted to the Administrator for 
recordation, in accordance with subparts FFFF, GGGG, and IIII of this 
part, in a CAIR NOX Ozone Season Allowance Tracking System 
account.
    CAIR NOX Ozone Season emissions limitation means, for a CAIR 
NOX Ozone Season source, the tonnage equivalent, in 
NOX emissions in a control period, of the CAIR NOX 
Ozone Season allowances available for deduction for the source under 
Sec. 96.354(a) and (b) for the control period.
    CAIR NOX Ozone Season Trading Program means a multi-state nitrogen 
oxides air pollution control and emission reduction program approved and 
administered by the Administrator in accordance with subparts AAAA 
through IIII of this part and Sec. 51.123(aa)(1) or (2) (and (bb)(1)), 
(bb)(2), or (dd) of this chapter or established by the Administrator in 
accordance with subparts AAAA through IIII of part 97 of this chapter 
and Sec. Sec. 51.123(ee) and 52.35 of this chapter, as a means of 
mitigating interstate transport of ozone and nitrogen oxides.
    CAIR NOX Ozone Season source means a source that includes one or 
more CAIR NOX Ozone Season units.
    CAIR NOX Ozone Season unit means a unit that is subject to the CAIR 
NOX Ozone Season Trading Program under Sec. 96.304 and, 
except for purposes of Sec. 96.305 and subpart EEEE of this part, a 
CAIR NOX Ozone Season opt-in unit under subpart IIII of this 
part.
    CAIR NOX source means a source that is subject to the CAIR 
NOX Annual Trading Program.
    CAIR permit means the legally binding and federally enforceable 
written document, or portion of such document, issued by the permitting 
authority under subpart CCCC of this part, including any permit 
revisions, specifying the CAIR NOX Ozone Season Trading 
Program requirements applicable to a CAIR NOX Ozone Season 
source, to each CAIR NOX Ozone Season unit at the source, and 
to the owners and operators and the CAIR designated representative of 
the source and each such unit.
    CAIR SO2 source means a source that is subject to the CAIR 
SO2 Trading Program.
    CAIR SO2 Trading Program means a multi-state sulfur dioxide air 
pollution control and emission reduction program approved and 
administered by the Administrator in accordance with subparts AAA 
through III of this part and Sec. 51.124(o)(1) or (2) of this chapter 
or established by the Administrator in accordance with subparts AAA 
through III of part 97 of this chapter and Sec. Sec. 51.124(r) and 
52.36 of this chapter, as a

[[Page 816]]

means of mitigating interstate transport of fine particulates and sulfur 
dioxide.
    Clean Air Act or CAA means the Clean Air Act, 42 U.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, or chemical 
processing of coal.
    Coal-fired means:
    (1) Except for purposes of subpart EEEE of this part, combusting any 
amount of coal or coal-derived fuel, alone or in combination with any 
amount of any other fuel, during any year; or
    (2) For purposes of subpart EEEE of this part, combusting any amount 
of coal or coal-derived fuel, alone or in combination with any amount of 
any other fuel, during a specified year.
    Cogeneration unit means a stationary, fossil-fuel-fired boiler or 
stationary, fossil-fuel-fired combustion turbine:
    (1) Having equipment used to produce electricity and useful thermal 
energy for industrial, commercial, heating, or cooling purposes through 
the sequential use of energy; and
    (2) Producing during the 12-month period starting on the date the 
unit first produces electricity and during any calendar year after the 
calendar 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 energy 
output; and
    (B) Useful power that, when added to one-half of useful thermal 
energy produced, is not less then 42.5 percent of total energy input, if 
useful thermal energy produced is 15 percent or more of total energy 
output, or not less than 45 percent of total energy input, if useful 
thermal energy produced is less than 15 percent of total energy output.
    (ii) For a bottoming-cycle cogeneration unit, useful power not 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 energy input 
from all fuel except biomass if the unit is a boiler.
    Combustion turbine means:
    (1) An enclosed device comprising a compressor, a combustor, and a 
turbine and in which the flue gas resulting from the combustion of fuel 
in the combustor passes through the turbine, rotating the turbine; and
    (2) If the enclosed device under paragraph (1) of this definition is 
combined cycle, any associated duct burner, heat recovery steam 
generator, and steam turbine.
    Commence commercial operation means, with regard to a unit:
    (1) To have begun to produce steam, gas, or other heated medium used 
to generate electricity for sale or use, including test generation, 
except as provided in Sec. 96.305 and Sec. 96.384(h).
    (i) For a unit that is a CAIR NOX Ozone Season unit under 
Sec. 96.304 on the later of November 15, 1990 or the date the unit 
commences commercial operation as defined in paragraph (1) of this 
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 commercial operation of the unit, 
which shall continue to be treated as the same unit.
    (ii) For a unit that is a CAIR NOX Ozone Season unit 
under Sec. 96.304 on the later of November 15, 1990 or the date the 
unit commences commercial operation as defined in paragraph (1) of this 
definition and that is subsequently replaced by a unit at the same 
source (e.g., repowered), such date shall remain the replaced unit's 
date of commencement of commercial operation, and the replacement unit 
shall be treated as a separate unit with a separate date 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 as 
provided in Sec. 96.305, for a unit that is not a CAIR NOX 
Ozone Season unit under Sec. 96.304 on the later of November 15, 1990 
or the date the unit commences commercial operation as defined in 
paragraph (1) of this definition, the unit's date for commencement of 
commercial operation

[[Page 817]]

shall be the date on which the unit becomes a CAIR NOX Ozone 
Season unit under Sec. 96.304.
    (i) For a unit with a date for commencement of commercial operation 
as defined in paragraph (2) of this 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 commercial operation of the unit, which shall continue 
to be treated as the same unit.
    (ii) For a unit with a date for commencement of commercial operation 
as defined in paragraph (2) of this definition and that is subsequently 
replaced by a unit at the same source (e.g., repowered), such date shall 
remain the replaced unit's date of commencement of commercial operation, 
and the replacement unit shall be treated as a separate unit with a 
separate date for commencement 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 combustion 
chamber, except as provided in Sec. 96.384(h).
    (2) For a unit that undergoes a physical change (other than 
replacement of the unit by a unit at the same source) after the date the 
unit commences operation as defined in paragraph (1) of this definition, 
such date shall remain the date of commencement of operation of the 
unit, which shall continue to be treated as the same unit.
    (3) For a unit that is replaced by a unit at the same source (e.g., 
repowered) after the date the unit commences operation as defined in 
paragraph (1) of this definition, such date shall remain the replaced 
unit's date of commencement of operation, and the replacement unit shall 
be treated as a separate unit with a separate date for commencement of 
operation as defined in paragraph (1), (2), or (3) of this definition as 
appropriate, except as provided in Sec. 96.384(h).
    Common stack means a single flue through which emissions from 2 or 
more units are exhausted.
    Compliance account means a CAIR NOX Ozone Season 
Allowance Tracking System account, established by the Administrator for 
a CAIR NOX Ozone Season source under subpart FFFF or IIII of 
this part, in which any CAIR NOX Ozone Season allowance 
allocations for the CAIR NOX Ozone Season units at the source 
are initially recorded and in which are held any CAIR NOX 
Ozone Season allowances available for use for a control period in order 
to meet the source's CAIR NOX Ozone Season emissions 
limitation in accordance with Sec. 96.354.
    Continuous emission monitoring system or CEMS means the equipment 
required under subpart HHHH of this part to sample, analyze, measure, 
and provide, by means of readings recorded at least once every 15 
minutes (using an automated data acquisition and handling system 
(DAHS)), a permanent record of nitrogen oxides emissions, stack gas 
volumetric flow rate, stack gas moisture content, and oxygen or carbon 
dioxide concentration (as applicable), in a manner consistent with part 
75 of this chapter. The following systems are the principal types of 
continuous emission monitoring systems required under subpart HHHH of 
this part:
    (1) A flow monitoring system, consisting of a stack flow rate 
monitor and an automated data acquisition and handling system and 
providing a permanent, continuous record of stack gas volumetric flow 
rate, in standard cubic feet per hour (scfh);
    (2) A nitrogen oxides concentration monitoring system, consisting of 
a NOX pollutant concentration monitor and an automated data 
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 pollutant 
concentration monitor, a diluent gas (CO2 or O2) 
monitor, and an automated data acquisition and handling system and 
providing a permanent, continuous record of NOX 
concentration, in parts per million (ppm), diluent gas concentration, in 
percent CO2 or O2, and NOX emission 
rate, in pounds per million British thermal units (lb/mmBtu);
    (4) A moisture monitoring system, as defined in Sec. 75.11(b)(2) of 
this chapter and providing a permanent, continuous

[[Page 818]]

record of the stack gas moisture content, in percent H2O;
    (5) A carbon dioxide monitoring system, consisting of a 
CO2 pollutant concentration monitor (or an oxygen monitor 
plus suitable mathematical equations from which the CO2 
concentration is derived) and an automated data acquisition and handling 
system and providing a permanent, continuous record of CO2 
emissions, in percent CO2; and
    (6) An oxygen monitoring system, consisting of an O2 
concentration monitor and an automated data acquisition and handling 
system and providing a permanent, continuous record of O2 in 
percent O2.
    Control period or ozone season means the period beginning May 1 of a 
calendar year, except as provided in Sec. 96.306(c)(2), and ending on 
September 30 of the same year, inclusive.
    Emissions means air pollutants exhausted from a unit or source into 
the atmosphere, as measured, recorded, and reported to the Administrator 
by the CAIR designated representative and as determined by the 
Administrator in accordance with subpart HHHH of this part.
    Excess emissions means any ton of nitrogen oxides emitted by the 
CAIR NOX Ozone Season units at a CAIR NOX Ozone 
Season source during a control period that exceeds the CAIR 
NOX Ozone Season emissions limitation for the source.
    Fossil fuel means natural gas, petroleum, coal, or any form of 
solid, liquid, or gaseous fuel derived from such material.
    Fossil-fuel-fired means, with regard to a unit, combusting any 
amount of fossil fuel in any calendar year.
    Fuel oil means any petroleum-based fuel (including diesel fuel or 
petroleum derivatives such as oil tar) and any recycled or blended 
petroleum products or petroleum by-products used as a fuel whether in a 
liquid, solid, or gaseous state.
    General account means a CAIR NOX Ozone Season Allowance 
Tracking System account, established under subpart FFFF of this part, 
that is not a compliance account.
    Generator means a device that produces electricity.
    Gross electrical output means, with regard to a cogeneration unit, 
electricity made available for use, including any such electricity used 
in the power production process (which process includes, but is not 
limited to, any on-site processing or treatment of 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 fuel feed 
rate into a combustion device (in lb of fuel/time), as measured, 
recorded, and reported to the Administrator by the CAIR designated 
representative and determined by the Administrator in accordance with 
subpart HHHH of this part and excluding 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 specific fuel, the 
amount of heat input attributed to the fuel (in mmBtu) divided by the 
unit operating time (in hr) during which the unit combusts the fuel.
    Life-of-the-unit, firm power contractual arrangement means a unit 
participation power sales agreement under which a utility or industrial 
customer reserves, or is entitled to receive, a specified amount or 
percentage of nameplate capacity and associated energy generated by any 
specified unit and pays its proportional amount of such 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, including 
contracts that permit an election for early termination; or
    (3) For a period no less than 25 years or 70 percent of the economic 
useful life of the unit determined as of the time the unit is built, 
with option rights to purchase or release some portion of the nameplate 
capacity and associated energy generated by the unit at the end of the 
period.
    Maximum design heat input means the maximum amount of fuel per hour 
(in Btu/hr) that a unit is capable of combusting on a steady state basis 
as of

[[Page 819]]

the initial installation of the unit as specified by the manufacturer of 
the unit.
    Monitoring system means any monitoring system that meets the 
requirements of subpart HHHH of this part, including a continuous 
emissions monitoring system, an alternative monitoring system, or an 
excepted monitoring system under part 75 of this chapter.
    Most stringent State or Federal NOX emissions limitation 
means, with regard to a unit, the lowest NOX emissions 
limitation (in terms of lb/mmBtu) that is applicable to the unit under 
State or Federal law, regardless of the averaging period to which the 
emissions limitation applies.
    Nameplate capacity means, starting from the initial installation of 
a generator, the maximum electrical generating output (in MWe) that the 
generator is capable of producing on a steady state basis and during 
continuous operation (when not restricted by seasonal or other 
deratings) as of such installation as specified by the manufacturer of 
the generator or, starting from the completion of any subsequent 
physical change in the generator resulting in an increase in the maximum 
electrical generating output (in MWe) that the generator is capable of 
producing on a steady state basis and during continuous operation (when 
not restricted by seasonal or other deratings), such increased maximum 
amount as of such completion as specified 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 heat input 
in a specified year and not qualifying as coal-fired.
    Operator means any person who operates, controls, or supervises a 
CAIR NOX Ozone Season unit or a CAIR NOX Ozone 
Season source 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 Ozone Season source or a 
CAIR NOX Ozone Season unit at a source, respectively:
    (i) Any holder of any portion of the legal or equitable title in a 
CAIR NOX Ozone Season unit at the source or the CAIR 
NOX Ozone Season unit;
    (ii) Any holder of a leasehold interest in a CAIR NOX 
Ozone Season unit at the source or the CAIR NOX Ozone Season 
unit; or
    (iii) Any purchaser of power from a CAIR NOX Ozone Season 
unit at the source or the CAIR NOX Ozone Season unit 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 an equitable interest 
through such lessor, whose rental payments are not based (either 
directly or indirectly) on the revenues or income from such CAIR 
NOX Ozone Season unit; or
    (2) With regard to any general account, any person who has an 
ownership interest with respect to the CAIR NOX Ozone Season 
allowances held in the general account and who is subject to the binding 
agreement for the CAIR authorized account representative to represent 
the person's ownership interest with respect to CAIR NOX 
Ozone Season allowances.
    Permitting authority means the State air pollution control agency, 
local agency, other State agency, or other agency authorized by the 
Administrator to issue or revise permits to meet the requirements of the 
CAIR NOX Ozone Season Trading Program or, if no such agency 
has been so authorized, the Administrator.
    Potential electrical output capacity means 33 percent of a unit's 
maximum design heat input, divided by 3,413 Btu/kWh, divided by 1,000 
kWh/MWh, and multiplied by 8,760 hr/yr.
    Receive or receipt of means, when referring to the permitting 
authority or the Administrator, to come into possession of a document, 
information, or correspondence (whether sent in hard copy or by 
authorized electronic transmission), as indicated in an official log, or 
by a notation made on the document, information, or correspondence, by 
the permitting authority or the Administrator in the regular course of 
business.

[[Page 820]]

    Recordation, record, or recorded means, with regard to CAIR 
NOX Ozone Season allowances, the movement of CAIR 
NOX Ozone Season allowances by the Administrator into or 
between CAIR NOX Ozone Season Allowance Tracking System 
accounts, for purposes of allocation, transfer, or deduction.
    Reference method means any direct test method of sampling and 
analyzing for an air pollutant as specified in Sec. 75.22 of this 
chapter.
    Replacement, replace, or replaced means, with regard to a unit, the 
demolishing of a unit, or the permanent shutdown and permanent disabling 
of a unit, and the construction of another unit (the replacement unit) 
to be used instead of the demolished or shutdown unit (the replaced 
unit).
    Repowered means, with regard to a unit, replacement of a coal-fired 
boiler with one of the following coal-fired technologies at the 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 the 
Secretary of Energy, a derivative of one or more of the technologies 
under paragraphs (1) through (5) of this definition and any other coal-
fired technology capable of controlling multiple combustion emissions 
simultaneously with improved boiler or generation efficiency and with 
significantly greater waste reduction relative to the performance of 
technology in widespread commercial use as of January 1, 2005.
    Serial number means, for a CAIR NOX Ozone Season 
allowance, the unique identification number assigned to each CAIR 
NOX Ozone Season allowance by the Administrator.
    Sequential use of energy means:
    (1) For a topping-cycle cogeneration unit, the use of reject heat 
from electricity production in a useful thermal energy application or 
process; or
    (2) For a bottoming-cycle cogeneration unit, the use of reject heat 
from useful thermal energy application or process in electricity 
production.
    Solid waste incineration unit means a stationary, fossil-fuel-fired 
boiler or stationary, fossil-fuel-fired combustion turbine that is a 
``solid waste incineration unit'' as defined in section 129(g)(1) of the 
Clean Air Act.
    Source means all buildings, structures, or installations located in 
one or more contiguous or adjacent properties under common control 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 a single ``facility.''
    State means one of the States or the District of Columbia that 
adopts the CAIR NOX Ozone Season Trading Program 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 accordance with 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 of dispatch, transmission, or mailing and not the 
date of receipt.
    Title V operating permit means a permit issued under title V of the 
Clean Air Act and part 70 or part 71 of this chapter.
    Title V operating permit regulations means the regulations that the 
Administrator has approved or issued as meeting the requirements of 
title V of the Clean Air Act and part 70 or 71 of this chapter.
    Ton means 2,000 pounds. For the purpose of determining compliance 
with the CAIR NOX Ozone Season emissions limitation, total 
tons of nitrogen oxides emissions for a control period shall be 
calculated as the sum of all recorded hourly emissions (or the mass 
equivalent of the recorded hourly emission rates) in accordance with 
subpart HHHH of this part, but with any remaining fraction of a ton 
equal to or

[[Page 821]]

greater than 0.50 tons deemed to equal one ton and any remaining 
fraction of a ton less than 0.50 tons deemed to equal zero tons.
    Topping-cycle cogeneration unit means a cogeneration unit in which 
the energy input to the unit is first used to produce useful power, 
including electricity, and at least some of the reject heat from the 
electricity production is then used to provide useful thermal energy.
    Total energy input means, with regard to a cogeneration unit, total 
energy of all forms supplied to the cogeneration unit, excluding energy 
produced by the cogeneration unit itself. Each form of energy supplied 
shall be measured by the lower heating value of that 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 cogeneration unit, the 
sum of useful power and useful thermal energy produced by the 
cogeneration unit.
    Unit means a stationary, fossil-fuel-fired boiler or combustion 
turbine or other stationary, fossil-fuel-fired combustion device.
    Unit operating day means a calendar day in which a unit combusts any 
fuel.
    Unit operating hour or hour of unit operation means an hour 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 any such energy 
used in the power production process (which process includes, but is not 
limited to, any on-site processing or treatment of fuel combusted at the 
unit and any on-site emission controls).
    Useful thermal energy means, with regard to a cogeneration unit, 
thermal energy that is:
    (1) Made available to an industrial or commercial process (not a 
power production process), excluding any heat contained in condensate 
return or makeup water;
    (2) Used in a heating application (e.g., space heating or domestic 
hot water heating); or
    (3) Used in a space cooling application (i.e., thermal energy used 
by an absorption chiller).
    Utility power distribution system means the portion of an 
electricity grid owned or operated by a utility and dedicated to 
delivering 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 and 
subparts 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

[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 NOX 
Ozone Season units, and any source that includes one or more such units 
shall be a CAIR NOX Ozone Season source, subject to the 
requirements of this subpart and subparts BBBB through HHHH of this 
part: any stationary, fossil-fuel-fired boiler or stationary, fossil-
fuel-fired combustion turbine serving at any time, since the later of 
November 15, 1990 or the start-up of the unit's combustion chamber, a 
generator with nameplate capacity of more than 25 MWe producing 
electricity for sale.

[[Page 822]]

    (2) If a stationary boiler or stationary combustion turbine that, 
under paragraph (a)(1) of this section, is not a CAIR NOX 
Ozone Season unit begins to combust fossil fuel or to serve a generator 
with nameplate capacity of more than 25 MWe producing electricity for 
sale, the unit shall become a CAIR NOX Ozone Season unit as 
provided in paragraph (a)(1) of this section on the first date on which 
it both combusts fossil fuel and serves such generator.
    (b) The units in a State that meet the requirements set forth in 
paragraph (b)(1)(i), (b)(2)(i), or (b)(2)(ii) of this section shall not 
be CAIR NOX Ozone Season units:
    (1)(i) Any unit that is a CAIR NOX Ozone Season unit 
under paragraph (a)(1) or (2) of this section:
    (A) Qualifying as a cogeneration unit during the 12-month period 
starting on the date the unit first produces electricity and continuing 
to qualify as a cogeneration unit; and
    (B) Not serving at any time, since the later of November 15, 1990 or 
the start-up of the unit's combustion chamber, a generator with 
nameplate capacity of more than 25 MWe supplying in any calendar year 
more than one-third of the unit's potential electric output capacity or 
219,000 MWh, whichever is greater, to any utility power distribution 
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 electricity and 
meets the requirements of paragraphs (b)(1)(i) of this section for at 
least one calendar year, but subsequently no longer meets all such 
requirements, the unit shall become a CAIR NOX Ozone Season 
unit starting on the earlier of January 1 after the first calendar year 
during which the unit first no longer qualifies as a cogeneration unit 
or January 1 after the first calendar year during which 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 unit 
under paragraph (a)(1) or (2) of this section commencing operation 
before January 1, 1985:
    (A) Qualifying as a solid waste incineration unit; and
    (B) With an average annual fuel consumption of non-fossil fuel for 
1985-1987 exceeding 80 percent (on a Btu basis) and an average annual 
fuel consumption of non-fossil fuel for any 3 consecutive calendar years 
after 1990 exceeding 80 percent (on a Btu basis).
    (ii) Any unit that is a CAIR NOX Ozone Season unit under 
paragraph (a)(1) or (2) of this section commencing operation on or after 
January 1, 1985:
    (A) Qualifying as a solid waste incineration unit; and
    (B) With an average annual fuel consumption of non-fossil fuel for 
the first 3 calendar years of operation exceeding 80 percent (on a Btu 
basis) and an average annual fuel consumption of non-fossil fuel for any 
3 consecutive calendar years after 1990 exceeding 80 percent (on a Btu 
basis).
    (iii) If a unit qualifies as a solid waste incineration unit and 
meets the requirements of paragraph (b)(2)(i) or (ii) of this section 
for at least 3 consecutive calendar years, but subsequently no longer 
meets all such requirements, the unit shall become a CAIR NOX 
Ozone Season unit starting on the earlier of January 1 after the first 
calendar year during which the unit first no longer qualifies as a solid 
waste incineration unit or January 1 after the first 3 consecutive 
calendar years after 1990 for which the unit has an average annual fuel 
consumption of fossil fuel of 20 percent or more.

[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 is permanently 
retired and is not a CAIR NOX Ozone Season opt-in unit under 
subpart IIII of this part shall be exempt from the CAIR NOX 
Ozone Season Trading Program, except for the provisions 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, and subparts BBBB and EEEE through GGGG 
of this part.
    (2) The exemption under paragraph (a)(1) of this section shall 
become effective the day on which the CAIR NOX Ozone Season 
unit is permanently retired. Within 30 days of the unit's permanent 
retirement, the CAIR designated representative shall submit a

[[Page 823]]

statement to the permitting authority otherwise responsible for 
administering any CAIR permit for the unit and shall submit a copy of 
the statement to the Administrator. The statement shall state, in a 
format prescribed by the permitting authority, that the unit was 
permanently retired on a specific date and will comply with the 
requirements of paragraph (b) of this section.
    (3) After receipt of the statement under paragraph (a)(2) of this 
section, the permitting authority will amend any permit under subpart 
CCCC of this part covering the source at which the unit is located to 
add 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 on the date 
that the exemption takes effect.
    (2) The permitting authority will allocate CAIR NOX Ozone 
Season allowances under subpart EEEE of this 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 this 
section shall retain, at the source that includes the unit, records 
demonstrating that the unit is permanently retired. The 5-year period 
for keeping records may be extended for cause, at any time before the 
end of the period, in writing by the permitting authority or the 
Administrator. The owners and operators bear the burden of proof that 
the unit is permanently retired.
    (4) The owners and operators and, to the extent applicable, the CAIR 
designated representative of a unit exempt under paragraph (a) of this 
section shall comply with the requirements of the CAIR NOX 
Ozone Season Trading Program concerning all periods for which 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 located at 
a source that is required, or but for this exemption would be required, 
to have a title V operating permit shall not resume operation unless the 
CAIR designated representative of the source submits a complete CAIR 
permit application under Sec. 96.322 for the unit not less than 18 
months (or such lesser time provided by the permitting authority) before 
the later of January 1, 2009 or the date on which the unit resumes 
operation.
    (6) On the earlier of the following dates, a unit exempt under 
paragraph (a) of this section shall lose its exemption:
    (i) The date on which the CAIR designated representative submits a 
CAIR permit application for the unit under paragraph (b)(5) of this 
section;
    (ii) The date on which the CAIR designated representative is 
required under paragraph (b)(5) of this section to submit a CAIR permit 
application for the unit; or
    (iii) The date on which the unit resumes operation, if the CAIR 
designated representative is not required to submit a CAIR permit 
application for the unit.
    (7) For the purpose of applying monitoring, reporting, and 
recordkeeping requirements under subpart HHHH of this part, a unit that 
loses its exemption under paragraph (a) of this section shall be treated 
as a unit that commences commercial operation on the first date 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 designated representative of 
each CAIR NOX Ozone Season source required to have a title V 
operating permit and each CAIR NOX Ozone Season unit required 
to have a title V operating permit at the source shall:
    (i) Submit to the permitting authority a complete CAIR permit 
application under Sec. 96.322 in accordance with the deadlines 
specified in Sec. 96.321; and
    (ii) Submit in a timely manner any supplemental information that the 
permitting authority determines is necessary in order to review a CAIR 
permit application and issue or deny a CAIR permit.

[[Page 824]]

    (2) The owners and operators of each CAIR NOX Ozone 
Season source required to have a title V operating permit and each CAIR 
NOX Ozone Season unit required to have a title V operating 
permit at the source shall have a CAIR permit issued by the permitting 
authority under subpart CCCC of this part for the source and operate the 
source and the unit in compliance with such CAIR permit.
    (3) Except as provided in subpart IIII of this part, the owners and 
operators of a CAIR NOX Ozone Season source that is not 
otherwise required to have a title V operating permit and each CAIR 
NOX Ozone Season unit that is not otherwise required to have 
a title V operating permit are not required to submit a CAIR permit 
application, and to have a CAIR permit, under subpart CCCC of this part 
for such CAIR NOX Ozone Season source and such CAIR 
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 CAIR NOX 
Ozone Season unit at the source shall comply with the monitoring, 
reporting, and recordkeeping requirements of subpart HHHH of this part.
    (2) The emissions measurements recorded and reported in accordance 
with subpart HHHH of this part shall be used to determine compliance by 
each CAIR NOX Ozone Season source with the CAIR 
NOX 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 owners and 
operators of each CAIR NOX Ozone Season source and each CAIR 
NOX Ozone Season unit at the source shall hold, in the 
source's compliance account, CAIR NOX Ozone Season allowances 
available for compliance deductions for the control period under Sec. 
96.354(a) in an amount not less than the tons of total nitrogen oxides 
emissions for the control period from all CAIR NOX Ozone 
Season units at the source, as determined in accordance with subpart 
HHHH of this part.
    (2) A CAIR NOX Ozone Season unit shall be subject to the 
requirements under paragraph (c)(1) of this section for the control 
period starting on the later of May 1, 2009 or the deadline for meeting 
the unit's monitor certification requirements under Sec. 96.370(b)(1), 
(2), (3), or (7) and for each control period thereafter.
    (3) A CAIR NOX Ozone Season allowance shall not be 
deducted, for compliance with the requirements under paragraph (c)(1) of 
this section, for a control period in a calendar year before the year 
for which the CAIR NOX Ozone Season allowance was allocated.
    (4) CAIR NOX Ozone Season allowances shall be held in, 
deducted from, or transferred into or among CAIR NOX Ozone 
Season Allowance Tracking System accounts in accordance with subparts 
FFFF, GGGG, and IIII of this part.
    (5) A CAIR NOX Ozone Season allowance is a limited 
authorization to emit one ton of nitrogen oxides in accordance with the 
CAIR NOX Ozone Season Trading Program. No provision of the 
CAIR NOX Ozone Season Trading Program, the CAIR permit 
application, the CAIR permit, or an exemption under Sec. 96.305 and no 
provision of law shall be construed to limit the authority of the State 
or the United States to terminate or limit such authorization.
    (6) A CAIR NOX Ozone Season allowance does not constitute 
a property right.
    (7) Upon recordation by the Administrator under subpart FFFF, GGGG, 
or IIII of this part, every allocation, transfer, or deduction of a CAIR 
NOX Ozone Season allowance to or from a CAIR NOX 
Ozone Season source's compliance account is incorporated automatically 
in any CAIR permit of the source.
    (d) Excess emissions requirements. If a CAIR NOX Ozone 
Season source emits nitrogen oxides during any control period in excess 
of the CAIR NOX Ozone Season emissions limitation, then:
    (1) The owners and operators of the source and each CAIR 
NOX Ozone Season unit at the source shall surrender the CAIR 
NOX Ozone Season allowances required for deduction under 
Sec. 96.354(d)(1) and pay any fine, penalty, or assessment or comply 
with any other remedy imposed, for the same

[[Page 825]]

violations, under the Clean Air Act or applicable State law; and
    (2) Each ton of such excess emissions and each day of such control 
period shall constitute a separate violation of this subpart, the Clean 
Air Act, and applicable State law.
    (e) Recordkeeping and reporting requirements. (1) Unless otherwise 
provided, the owners and operators of the CAIR NOX Ozone 
Season source and each CAIR NOX Ozone Season unit at the 
source shall keep on site at the source each of the following documents 
for a period of 5 years from the date the document is created. This 
period may be extended for cause, at any time before the end of 5 years, 
in writing by the permitting authority or the Administrator.
    (i) The certificate of representation under Sec. 96.313 for the 
CAIR designated representative for the source and each CAIR 
NOX Ozone Season unit at the source and all documents that 
demonstrate the truth of the statements in the certificate of 
representation; provided that the certificate and documents shall be 
retained on site at the source beyond such 5-year period until such 
documents are superseded because of the submission of a new certificate 
of representation under Sec. 96.313 changing the CAIR designated 
representative.
    (ii) All emissions monitoring information, in accordance with 
subpart HHHH of this part, provided that to the extent that subpart HHHH 
of this part provides for a 3-year period for recordkeeping, the 3-year 
period shall apply.
    (iii) Copies of all reports, compliance certifications, and other 
submissions and all records made or required under the CAIR 
NOX Ozone Season Trading Program.
    (iv) Copies of all documents used to complete a CAIR permit 
application and any other submission under the CAIR NOX Ozone 
Season Trading Program or to demonstrate compliance with the 
requirements of the CAIR NOX Ozone Season Trading Program.
    (2) The CAIR designated representative of a CAIR NOX 
Ozone Season source and each CAIR NOX Ozone Season unit at 
the source shall submit the reports required under the CAIR 
NOX Ozone Season Trading Program, including those under 
subpart HHHH of this part.
    (f) Liability. (1) Each CAIR NOX Ozone Season source and 
each CAIR NOX Ozone Season unit shall meet the requirements 
of the CAIR NOX Ozone Season Trading Program.
    (2) Any provision of the CAIR NOX Ozone Season Trading 
Program that applies to a CAIR NOX Ozone Season source or the 
CAIR designated representative of a CAIR NOX Ozone Season 
source shall also apply to the owners and operators of such source and 
of the CAIR NOX Ozone Season units at the source.
    (3) Any provision of the CAIR NOX Ozone Season Trading 
Program that applies to a CAIR NOX Ozone Season unit or the 
CAIR designated representative of a CAIR NOX Ozone Season 
unit shall also apply to the owners and operators of such unit.
    (g) Effect on other authorities. No provision of the CAIR 
NOX Ozone Season Trading Program, a CAIR permit application, 
a CAIR permit, or an exemption under Sec. 96.305 shall be construed as 
exempting or excluding the owners and operators, and the CAIR designated 
representative, of a CAIR NOX Ozone Season source or CAIR 
NOX Ozone Season unit from compliance with any other 
provision of the applicable, approved State implementation plan, a 
federally enforceable 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 the 
CAIR NOX Ozone Season Trading Program, to begin on the 
occurrence of an act or event shall begin on the day the act or event 
occurs.
    (b) Unless otherwise stated, any time period scheduled, under the 
CAIR NOX Ozone Season Trading Program, to begin before the 
occurrence of an act or event shall be computed so that the period ends 
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 on a 
weekend or a State or

[[Page 826]]

Federal holiday, the time period shall be extended to the next business 
day.



Sec. 96.308  Appeal procedures.

    The appeal procedures for decisions of the Administrator under the 
CAIR NOX Ozone Season Trading Program are set forth in part 
78 of this chapter.



 Subpart BBBB_CAIR Designated Representative for CAIR NOX Ozone Season 
                                 Sources

    Source: 70 FR 25382, May 12, 2005, unless otherwise noted.



Sec. 96.310  Authorization and responsibilities of CAIR designated 

representative.

    (a) Except as provided under Sec. 96.311, each CAIR NOX 
Ozone Season source, including all CAIR NOX Ozone Season 
units at the source, shall have one and only one CAIR designated 
representative, with regard to all matters under the CAIR NOX 
Ozone Season Trading Program concerning the source or any CAIR 
NOX Ozone Season unit at the source.
    (b) The CAIR designated representative of the CAIR NOX 
Ozone Season source shall be selected by an agreement binding on the 
owners and operators of the source and all CAIR NOX Ozone 
Season units at the source and shall act in accordance with the 
certification statement in Sec. 96.313(a)(4)(iv).
    (c) Upon receipt by the Administrator of a complete certificate of 
representation under Sec. 96.313, the CAIR designated representative of 
the source shall represent and, by his or her representations, actions, 
inactions, or submissions, legally bind each owner and operator of the 
CAIR NOX Ozone Season source represented and each CAIR 
NOX Ozone Season unit at the source in all matters pertaining 
to the CAIR NOX Ozone Season Trading Program, notwithstanding 
any agreement between the CAIR designated representative and such owners 
and operators. The owners and operators shall be bound by any decision 
or order issued to the CAIR designated representative by the permitting 
authority, the Administrator, or a court regarding the source or unit.
    (d) No CAIR permit will be issued, no emissions data reports will be 
accepted, and no CAIR NOX Ozone Season Allowance Tracking 
System account will be established for a CAIR NOX Ozone 
Season unit at a source, until the Administrator has received a complete 
certificate of representation under Sec. 96.313 for a CAIR designated 
representative of the source and the CAIR NOX Ozone Season 
units at the source.
    (e)(1) Each submission under the CAIR NOX Ozone Season 
Trading Program shall be submitted, signed, and certified by the CAIR 
designated representative for each CAIR NOX Ozone Season 
source on behalf of which the submission is made. Each such submission 
shall include the following certification statement by the CAIR 
designated representative: ``I am authorized to make this submission on 
behalf of the owners and operators of the source or units for which the 
submission is made. I certify under penalty of law that I have 
personally examined, and am familiar with, the statements and 
information submitted in this document and all its attachments. Based on 
my inquiry of those individuals with primary responsibility for 
obtaining the information, I certify that the statements and information 
are to the best of my knowledge and belief true, accurate, and complete. 
I am aware that there are significant penalties for submitting false 
statements and information or omitting required statements and 
information, including the possibility of fine or imprisonment.''
    (2) The permitting authority and the Administrator will accept or 
act on a submission made on behalf of owner or operators of a CAIR 
NOX Ozone Season source or a CAIR NOX Ozone Season 
unit only if the submission has been made, signed, and certified in 
accordance with paragraph (e)(1) of this section.



Sec. 96.311  Alternate CAIR designated representative.

    (a) A certificate of representation under Sec. 96.313 may designate 
one and only one alternate CAIR designated representative, who may act 
on behalf of the CAIR designated representative. The agreement by which 
the alternate

[[Page 827]]

CAIR designated representative is selected shall include a procedure for 
authorizing the alternate CAIR designated representative to act in lieu 
of the CAIR designated representative.
    (b) Upon receipt by the Administrator of a complete certificate of 
representation under Sec. 96.313, any representation, action, inaction, 
or submission by the alternate CAIR designated representative 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 whenever the term ``CAIR 
designated representative'' is used in subparts AAAA through IIII of 
this part, the term shall be construed to include the CAIR designated 
representative or any alternate CAIR designated 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 CAIR 

designated representative; changes in owners and operators.

    (a) Changing CAIR designated representative. The CAIR designated 
representative may be changed at any time upon receipt by the 
Administrator of a superseding complete certificate of representation 
under Sec. 96.313. Notwithstanding any such change, all 
representations, actions, inactions, and submissions by the previous 
CAIR designated representative before the time and date when the 
Administrator receives the superseding certificate of representation 
shall be binding on the new CAIR designated representative and the 
owners and operators of the CAIR NOX Ozone Season source and 
the CAIR NOX Ozone Season units at the source.
    (b) Changing alternate CAIR designated representative. The alternate 
CAIR designated representative may be changed at any time upon receipt 
by the Administrator of a superseding complete certificate of 
representation under Sec. 96.313. Notwithstanding any such change, all 
representations, actions, inactions, and submissions by the previous 
alternate CAIR designated representative before the time and date when 
the Administrator receives the superseding certificate of representation 
shall be binding on the new alternate CAIR designated representative and 
the owners and operators of the CAIR NOX Ozone Season source 
and the CAIR NOX Ozone Season units at the source.
    (c) Changes in owners and operators. (1) In the event an owner or 
operator of a CAIR NOX Ozone Season source or a CAIR 
NOX Ozone Season unit is not included in the list of owners 
and operators in the certificate of representation under Sec. 96.313, 
such owner or operator shall be deemed to be subject to and bound by the 
certificate of representation, the representations, actions, inactions, 
and submissions of the CAIR designated representative and any alternate 
CAIR designated representative of the source or unit, and the decisions 
and orders of the permitting authority, the Administrator, or a court, 
as if the owner or operator were included in such list.
    (2) Within 30 days following any change in the owners and operators 
of a CAIR NOX Ozone Season source or a CAIR NOX 
Ozone Season unit, including the addition of a new owner or operator, 
the CAIR designated representative or any alternate CAIR designated 
representative shall submit a revision to the certificate of 
representation under Sec. 96.313 amending the list 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 designated 
representative or an alternate CAIR designated representative shall 
include the following elements in a format prescribed by the 
Administrator:
    (1) Identification of the CAIR NOX Ozone Season source, 
and each CAIR NOX Ozone Season unit at the source, for which 
the certificate of representation is submitted, including identification 
and nameplate capacity 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 designated 
representative

[[Page 828]]

and any alternate CAIR designated representative.
    (3) A list of the owners and operators of the CAIR NOX 
Ozone Season source and of each CAIR NOX Ozone Season unit at 
the source.
    (4) The following certification statements by the CAIR designated 
representative and any alternate CAIR designated representative--
    (i) ``I certify that I was selected as the CAIR designated 
representative or alternate CAIR designated representative, as 
applicable, by an agreement binding on the owners and operators of the 
source and each CAIR NOX Ozone Season unit at the source.''
    (ii) ``I certify that I have all the necessary authority to carry 
out my duties and responsibilities under the CAIR NOX Ozone 
Season Trading Program on behalf of the owners and operators of the 
source and of each CAIR NOX Ozone Season unit at the source 
and that each such owner and operator shall be fully bound by my 
representations, actions, inactions, or submissions.''
    (iii) ``I certify that the owners and operators of the source and of 
each CAIR NOX Ozone Season unit at the source shall be bound 
by any order issued to me by the Administrator, the permitting 
authority, or a court regarding the source or unit.''
    (iv) ``Where there are multiple holders of a legal or equitable 
title to, or a leasehold interest in, a CAIR NOX Ozone Season 
unit, or where a utility or industrial customer purchases power from a 
CAIR NOX Ozone Season unit under a life-of-the-unit, firm 
power contractual arrangement, I certify that: I have given a written 
notice of my selection as the `CAIR designated representative' or 
`alternate CAIR designated representative', as applicable, and of the 
agreement by which I was selected to each owner and operator of the 
source and of each CAIR NOX Ozone Season unit at the source; 
and CAIR NOX Ozone Season allowances and proceeds of 
transactions involving CAIR NOX Ozone Season allowances will 
be deemed 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 a 
different distribution of CAIR NOX Ozone Season allowances by 
contract, CAIR NOX Ozone Season allowances and proceeds of 
transactions involving CAIR NOX Ozone Season allowances will 
be deemed to be held or distributed in accordance with the contract.''
    (5) The signature of the CAIR designated representative and any 
alternate CAIR designated representative and the dates signed.
    (b) Unless otherwise required by the permitting authority or the 
Administrator, documents of agreement referred to in the certificate of 
representation shall not be submitted to the permitting authority or the 
Administrator. Neither the permitting authority nor the Administrator 
shall be under any obligation to review or evaluate the 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 under Sec. 96.313 
has been submitted and received, the permitting authority and the 
Administrator will rely on the certificate of representation unless and 
until a superseding complete certificate of representation under Sec. 
96.313 is received by the Administrator.
    (b) Except as provided in Sec. 96.312(a) or (b), no objection or 
other communication submitted to the permitting authority or the 
Administrator concerning the authorization, or any representation, 
action, inaction, or submission, of the CAIR designated representative 
shall affect any representation, action, inaction, or submission of the 
CAIR designated representative or the finality of any decision or order 
by the permitting authority or the Administrator under the CAIR 
NOX Ozone Season Trading Program.
    (c) Neither the permitting authority nor the Administrator will 
adjudicate any private legal dispute concerning the authorization or any 
representation, action, inaction, or submission of any CAIR designated 
representative,

[[Page 829]]

including private legal disputes concerning the proceeds of CAIR 
NOX Ozone Season allowance transfers.



Sec. 96.315  Delegation by CAIR designated representative and alternate CAIR 

designated representative.

    (a) A CAIR designated representative may delegate, to one or more 
natural persons, his or her authority to make an electronic submission 
to the Administrator provided for or required under this part.
    (b) An alternate CAIR designated representative may delegate, to one 
or more natural persons, his or her authority to make an electronic 
submission to the Administrator provided for or required under this 
part.
    (c) In order to delegate authority to make an electronic submission 
to the Administrator in accordance with paragraph (a) or (b) of this 
section, the CAIR designated representative or alternate CAIR designated 
representative, as appropriate, must submit to the Administrator a 
notice of delegation, in a format prescribed by the Administrator, that 
includes the following elements:
    (1) The name, address, e-mail address, telephone number, and 
facsimile transmission number (if any) of such CAIR designated 
representative or alternate CAIR designated representative;
    (2) The name, address, e-mail address, telephone number, and 
facsimile 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 of 
electronic submissions under paragraph (a) or (b) of this section for 
which authority is delegated to him or her; and
    (4) The following certification statements by such CAIR designated 
representative or alternate CAIR designated representative:
    (i) ``I agree that any electronic submission to the Administrator 
that is by an agent identified in this notice of delegation and of a 
type listed for such agent in this notice of delegation and that is made 
when I am a CAIR designated representative or alternate CAIR designated 
representative, as appropriate, and before this notice of delegation is 
superseded by another notice of delegation under 40 CFR 96.315(d) shall 
be deemed to be an electronic submission by me.''
    (ii) ``Until this notice of delegation is superseded by another 
notice of delegation under 40 CFR 96.315(d), I agree to maintain an e-
mail account and to notify the Administrator immediately of any change 
in my e-mail address unless all delegation of authority by me under 40 
CFR 96.315 is terminated.''.
    (d) A notice of delegation submitted under paragraph (c) of this 
section shall be effective, with regard to the CAIR designated 
representative or alternate CAIR designated representative identified in 
such notice, upon receipt of such notice by the Administrator and until 
receipt by the Administrator of a superseding notice of delegation 
submitted by such CAIR designated representative or alternate CAIR 
designated representative, as appropriate. The superseding notice of 
delegation may replace any previously identified agent, add a new agent, 
or eliminate entirely any delegation of authority.
    (e) Any electronic submission covered by the certification in 
paragraph (c)(4)(i) of this section and made in accordance with a notice 
of delegation effective under paragraph (d) of this section shall be 
deemed to be an electronic submission by the CAIR designated 
representative or alternate CAIR designated representative submitting 
such notice of delegation.

[71 FR 25393, Apr. 28, 2006]



                          Subpart CCCC_Permits

    Source: 70 FR 25382, May 12, 2005, unless otherwise noted.



Sec. 96.320  General CAIR NOX Ozone Season Trading Program permit 

requirements.

    (a) For each CAIR NOX Ozone Season source required to 
have a title V operating permit or required, under subpart IIII of this 
part, to have a title V operating permit or other federally enforceable 
permit, such permit shall include a CAIR permit administered by the 
permitting authority for the title V operating permit or the federally 
enforceable permit as applicable. The CAIR

[[Page 830]]

portion of the title V permit or other federally enforceable permit as 
applicable shall be administered in accordance with the permitting 
authority's title V operating permits regulations promulgated under part 
70 or 71 of this chapter or the permitting authority's regulations for 
other federally enforceable permits as applicable, except as provided 
otherwise by Sec. 96.305, this subpart and subpart IIII of this part.
    (b) Each CAIR permit shall contain, with regard to the CAIR 
NOX Ozone Season source and the CAIR NOX Ozone 
Season units at the source covered by the CAIR permit, all applicable 
CAIR NOX Ozone Season Trading Program, CAIR NOX 
Annual Trading Program, and CAIR SO2 Trading Program 
requirements and shall be a complete and separable portion of the title 
V operating permit or other federally enforceable permit 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 any CAIR 
NOX Ozone Season source required to have a title V operating 
permit shall submit to the permitting authority a complete CAIR permit 
application under Sec. 96.322 for the source covering each CAIR 
NOX Ozone Season unit at the source at least 18 months (or 
such lesser time provided by the permitting authority) before the later 
of January 1, 2009 or the date on which the CAIR NOX Ozone 
Season unit commences commercial operation, except as provided in Sec. 
96.383(a).
    (b) Duty to Reapply. For a CAIR NOX Ozone Season source 
required to have a title V operating permit, the CAIR designated 
representative shall submit a complete CAIR permit application under 
Sec. 96.322 for the source covering each CAIR NOX Ozone 
Season unit at the source to renew the CAIR permit in accordance with 
the permitting authority's title V operating permits regulations 
addressing permit renewal, except as provided in Sec. 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 following 
elements concerning the CAIR NOX Ozone Season source for 
which the application is submitted, in a format prescribed by the 
permitting authority:
    (a) Identification of the CAIR NOX Ozone Season source;
    (b) Identification of each CAIR NOX Ozone Season unit at 
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 the 
permitting authority, all elements required for a complete CAIR permit 
application under Sec. 96.322.
    (b) Each CAIR permit is deemed to incorporate automatically the 
definitions of terms under Sec. 96.302 and, upon recordation by the 
Administrator under subpart FFFF, GGGG, or IIII of this part, every 
allocation, transfer, or deduction of a CAIR NOX Ozone Season 
allowance to or from the compliance account of the CAIR NOX 
Ozone Season source covered by the permit.
    (c) The term of the CAIR permit will be set by the permitting 
authority, as necessary to facilitate coordination of the renewal of the 
CAIR permit with issuance, revision, or renewal of the CAIR 
NOX Ozone Season source's title V operating permit or other 
federally enforceable permit as applicable.



Sec. 96.324  CAIR permit revisions.

    Except as provided in Sec. 96.323(b), the permitting authority will 
revise the CAIR permit, as necessary, in accordance with the permitting 
authority's title V operating permits regulations or the permitting 
authority's regulations for other federally enforceable permits as 
applicable addressing permit revisions.

Subpart DDDD [Reserved]

[[Page 831]]



        Subpart EEEE_CAIR NOX Ozone Season Allowance Allocations

    Source: 70 FR 25382, May 12, 2005, unless otherwise noted.



Sec. 96.340  State trading budgets.

    (a) Except as provided in paragraph (b) of this section, the State 
trading budgets for annual allocations of CAIR NOX Ozone 
Season allowances for the control periods in 2009 through 2014 and in 
2015 and thereafter are respectively as follows:

------------------------------------------------------------------------
                                                          State trading
                                        State trading    budget for 2015
                State                 budget for 2009-   and thereafter
                                         2014 (tons)         (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 CAIR NOX 
Ozone Season allowance allocations under Sec. 51.123(aa)(2)(iii)(A) of 
this chapter, the amount in the State trading budget for a control 
period in a calendar year will be the sum of the amount set forth for 
the State and for the year in paragraph (a) of this section and the 
amount of additional CAIR NOX Ozone Season allowance 
allocations issued under Sec. 51.123(aa)(2)(iii)(A) of this chapter for 
the year.



Sec. 96.341  Timing requirements for CAIR NOX Ozone Season allowance 

allocations.

    (a) By October 31, 2006, the permitting authority will submit to the 
Administrator the CAIR NOX Ozone Season allowance 
allocations, in a format prescribed by the Administrator and in 
accordance with Sec. 96.342(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 CAIR 
NOX Ozone Season allowance allocations, in a format 
prescribed by the Administrator and in accordance with Sec. 96.342(a) 
and (b), for the control period in the sixth year after the year of the 
applicable deadline for submission under this paragraph.
    (c) By July 31, 2009 and July 31 of each year thereafter, the 
permitting authority will submit to the Administrator the CAIR 
NOX Ozone Season allowance allocations, in a format 
prescribed by the Administrator and in accordance with Sec. 96.342(c), 
(a), and (d), for the control period in the year 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 to CAIR 
NOX Ozone Season allowance allocations under paragraph (b) of 
this section for each CAIR NOX Ozone Season unit will be:
    (i) For units commencing operation before January 1, 2001 the 
average of the 3 highest amounts of the unit's adjusted control period 
heat input for 2000 through 2004, with the adjusted control period heat 
input for each year calculated as follows:
    (A) If the unit is coal-fired during the year, the unit's control 
period heat input for such year is multiplied by 100 percent;
    (B) If the unit is oil-fired during the year, the unit's control 
period 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) of 
this section, the unit's control period heat input for such year is 
multiplied by 40 percent.
    (ii) For units commencing operation on or after January 1, 2001 and 
operating each calendar year during a period of 5 or more consecutive 
calendar

[[Page 832]]

years, the average of the 3 highest amounts of the unit's total 
converted control period heat input over the first such 5 years.
    (2)(i) A unit's control period heat input, and a unit's status as 
coal-fired or oil-fired, for a calendar year under paragraph (a)(1)(i) 
of this section, and a unit's total tons of NOX emissions 
during a control period in a calendar year under paragraph (c)(3) of 
this section, will be determined in accordance with part 75 of this 
chapter, to the extent the unit was otherwise subject to the 
requirements of part 75 of this chapter for the year, or will be based 
on the best available data reported to the permitting authority for the 
unit, to the extent the unit was not otherwise subject to the 
requirements of part 75 of this chapter for the year.
    (ii) A unit's converted control period heat input for a calendar 
year specified under paragraph (a)(1)(ii) of this section equals:
    (A) Except as provided in paragraph (a)(2)(ii)(B) or (C) of this 
section, the control period gross electrical output of the generator or 
generators served by the unit multiplied by 7,900 Btu/kWh, if the unit 
is coal-fired for the year, or 6,675 Btu/kWh, if the unit is not coal-
fired for the year, and divided by 1,000,000 Btu/mmBtu, provided that if 
a generator is served by 2 or more units, then the gross electrical 
output of the generator will be attributed to each unit in proportion to 
the unit's share of the total control period heat input of such units 
for the year;
    (B) For a unit that is a boiler and has equipment used to produce 
electricity and useful thermal energy for industrial, commercial, 
heating, or cooling purposes through the sequential use of energy, the 
total heat energy (in Btu) of the steam produced by the boiler during 
the 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 used 
to produce electricity and useful thermal energy for industrial, 
commercial, heating, or cooling purposes through the sequential use of 
energy, the control period gross electrical output of the enclosed 
device comprising the compressor, combustor, and turbine multiplied by 
3,413 Btu/kWh, plus the total heat energy (in Btu) of the steam produced 
by any associated heat recovery steam generator during the control 
period divided by 0.8, and with the sum divided by 1,000,000 Btu/mmBtu.
    (b)(1) For each control period in 2009 and thereafter, the 
permitting authority will allocate to all CAIR NOX Ozone 
Season units in the State that have a baseline heat input (as determined 
under paragraph (a) of this section) a total amount of CAIR 
NOX Ozone Season allowances equal to 95 percent for a control 
period during 2009 through 2014, and 97 percent for a control period 
during 2015 and thereafter, of the tons of NOX emissions in 
the State trading budget under Sec. 96.340 (except as provided in 
paragraph (d) of this section).
    (2) The permitting authority will allocate CAIR NOX Ozone 
Season allowances to each CAIR NOX Ozone Season unit under 
paragraph (b)(1) of this section in an amount determined by multiplying 
the total amount of CAIR NOX Ozone Season allowances 
allocated under paragraph (b)(1) of this section by the ratio of the 
baseline heat input of such CAIR NOX Ozone Season unit to the 
total amount of baseline heat input of all such CAIR NOX 
Ozone Season units in the State and rounding to the nearest whole 
allowance as appropriate.
    (c) For each control period in 2009 and thereafter, the permitting 
authority will allocate CAIR NOX Ozone Season allowances to 
CAIR NOX Ozone Season units in a State that are not allocated 
CAIR NOX Ozone Season allowances under paragraph (b) of this 
section because the units do not yet have a baseline heat input under 
paragraph (a) of this section or because the units have a baseline heat 
input but all CAIR NOX Ozone Season allowances available 
under paragraph (b) of this section for the control period are already 
allocated, in accordance with the following procedures:
    (1) The permitting authority will establish a separate new unit set-
aside for each control period. Each new unit set-aside will be allocated 
CAIR NOX Ozone Season allowances equal to 5 percent for a 
control period in2009 through 2014, and 3 percent for a control period 
in 2015 and thereafter, of

[[Page 833]]

the amount of tons of NOX emissions in the State trading 
budget under Sec. 96.340.
    (2) The CAIR designated representative of such a CAIR NOX 
Ozone Season unit may submit to the permitting authority a request, in a 
format specified by the permitting authority, to be allocated CAIR 
NOX Ozone Season allowances, starting with the later of the 
control period in 2009 or the first control period after the control 
period in which the CAIR NOX Ozone Season unit commences 
commercial operation and until the first control period for which the 
unit is allocated CAIR NOX Ozone Season allowances under 
paragraph (b) of this section. A separate CAIR NOX Ozone 
Season allowance allocation request for each control period for which 
CAIR NOX Ozone Season allowances are sought must be submitted 
on or before February 1 before such control period and after the date on 
which the CAIR NOX Ozone Season unit commences commercial 
operation.
    (3) In a CAIR NOX Ozone Season allowance allocation 
request under paragraph (c)(2) of this section, the CAIR designated 
representative may request for a control period CAIR NOX 
Ozone Season allowances in an amount not exceeding the CAIR 
NOX Ozone Season unit's total tons of NOX 
emissions during the control period immediately before such control 
period.
    (4) The permitting authority will review each CAIR NOX 
Ozone Season allowance allocation request under paragraph (c)(2) of this 
section and will allocate CAIR NOX Ozone Season allowances 
for each control period pursuant to such request as follows:
    (i) The permitting authority will accept an allowance allocation 
request only if the request meets, or is adjusted by the permitting 
authority 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, the 
permitting authority will determine the sum of the CAIR NOX 
Ozone Season allowances requested (as adjusted under paragraph (c)(4)(i) 
of this section) 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 Ozone Season allowances 
in the new unit set-aside for the control period is greater than or 
equal to the sum under paragraph (c)(4)(ii) of this section, then the 
permitting authority will allocate the amount of CAIR NOX 
Ozone Season allowances requested (as adjusted under paragraph (c)(4)(i) 
of this section) to each CAIR NOX Ozone Season unit covered 
by an allowance allocation request accepted under paragraph (c)(4)(i) of 
this section.
    (iv) If the amount of CAIR NOX Ozone Season allowances in 
the new unit set-aside for the control period is less than the sum under 
paragraph (c)(4)(ii) of this section, then the permitting authority will 
allocate to each CAIR NOX Ozone Season unit covered by an 
allowance allocation request accepted under paragraph (c)(4)(i) of this 
section the amount of the CAIR NOX Ozone Season allowances 
requested (as adjusted under paragraph (c)(4)(i) of this section), 
multiplied by the amount of CAIR NOX Ozone Season allowances 
in the new unit set-aside for the control period, divided by the sum 
determined under paragraph (c)(4)(ii) of this section, and rounded to 
the nearest whole allowance as appropriate.
    (v) The permitting authority will notify each CAIR designated 
representative that submitted an allowance allocation request of the 
amount of CAIR NOX Ozone Season allowances (if any) allocated 
for the control period to the CAIR NOX Ozone Season 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 CAIR NOX 
Ozone Season allowances remain in the new unit set-aside for the control 
period, the permitting authority will allocate to each CAIR 
NOX Ozone Season unit that was allocated CAIR NOX 
Ozone Season allowances under paragraph (b) of this section an amount of 
CAIR NOX Ozone Season allowances equal to the total amount of 
such remaining unallocated CAIR NOX Ozone Season allowances, 
multiplied by the unit's allocation under paragraph (b) of this section, 
divided by 95 percent for a control period during 2009 through 2014, and 
97 percent for a control period during 2015 and thereafter, of the 
amount of tons of NOX emissions in the State trading

[[Page 834]]

budget under Sec. 96.340, and rounded to the nearest whole allowance as 
appropriate.

[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 Allowance Tracking System

    Source: 70 FR 25382, May 12, 2005, unless otherwise noted.



Sec. 96.350  [Reserved]



Sec. 96.351  Establishment of accounts.

    (a) Compliance accounts. Except as provided in Sec. 96.384(e), upon 
receipt of a complete certificate of representation under Sec. 96.313, 
the Administrator will establish a compliance account for the CAIR 
NOX Ozone Season source for which the certificate of 
representation was submitted, unless the source already has a compliance 
account.
    (b) General accounts--(1) Application for general account. (i) Any 
person may apply to open a general account for the purpose of holding 
and transferring CAIR NOX Ozone Season allowances. An 
application for a general account may designate one and only one CAIR 
authorized account representative and one and only one alternate CAIR 
authorized account representative who may act on behalf of the CAIR 
authorized account representative. The agreement by which the alternate 
CAIR authorized account representative is selected shall include a 
procedure for authorizing the alternate CAIR authorized account 
representative to act in lieu of the CAIR authorized account 
representative.
    (ii) A complete application for a general account shall be submitted 
to the Administrator and shall include the following elements in a 
format prescribed by the Administrator:
    (A) Name, mailing address, e-mail address (if any), telephone 
number, and facsimile transmission number (if any) of the CAIR 
authorized account representative and any alternate CAIR authorized 
account representative;
    (B) Organization name and type of organization, if applicable;
    (C) A list of all persons subject to a binding agreement for the 
CAIR authorized account representative and any alternate CAIR authorized 
account representative to represent their ownership interest with 
respect to the CAIR NOX Ozone Season allowances held in the 
general account;
    (D) The following certification statement by the CAIR authorized 
account representative and any alternate CAIR authorized account 
representative: ``I certify that I was selected as the CAIR authorized 
account representative or the alternate CAIR authorized account 
representative, as applicable, by an agreement that is binding on all 
persons who have an ownership interest with respect to CAIR 
NOX Ozone Season allowances held in the general account. I 
certify that I have all the necessary authority to carry out my duties 
and responsibilities under the CAIR NOX Ozone Season Trading 
Program on behalf of such persons and that each such person shall be 
fully bound by my representations, actions, inactions, or submissions 
and by any order or decision issued to me by the Administrator or a 
court regarding the general account.''
    (E) The signature of the CAIR authorized account representative and 
any alternate CAIR authorized account representative and the dates 
signed.
    (iii) Unless otherwise required by the permitting authority or the 
Administrator, documents of agreement referred to in the application for 
a general account shall not be submitted to the permitting authority or 
the Administrator. Neither the permitting authority nor the 
Administrator shall be under any obligation to review or evaluate the 
sufficiency of such documents, if submitted.
    (2) Authorization of CAIR authorized account representative 
andalternate CAIR authorized account representative. (i) Upon receipt by 
the Administrator of a complete application for a general account under 
paragraph (b)(1) of this section:
    (A) The Administrator will establish a general account for the 
person or persons for whom the application is submitted.

[[Page 835]]

    (B) The CAIR authorized account representative and any alternate 
CAIR authorized account representative for the general account shall 
represent and, by his or her representations, actions, inactions, or 
submissions, legally bind each person who has an ownership interest with 
respect to CAIR NOX Ozone Season allowances held in the 
general account in all matters pertaining to the CAIR NOX 
Ozone Season Trading Program, notwithstanding any agreement between the 
CAIR authorized account representative or any alternate CAIR authorized 
account representative and such person. Any such person shall be bound 
by any order or decision issued to the CAIR authorized account 
representative or any alternate CAIR authorized account representative 
by the Administrator or a court regarding the general account.
    (C) Any representation, action, inaction, or submission by any 
alternate CAIR authorized account representative shall be deemed to be a 
representation, action, inaction, or submission by the CAIR authorized 
account representative.
    (ii) Each submission concerning the general account shall be 
submitted, signed, and certified by the CAIR authorized account 
representative or any alternate CAIR authorized account representative 
for the persons having an ownership interest with respect to CAIR 
NOX Ozone Season allowances held in the general account. Each 
such submission shall include the following certification statement by 
the CAIR authorized account representative or any alternate CAIR 
authorized account representative: ``I am authorized to make this 
submission on behalf of the persons having an ownership interest with 
respect to the CAIR NOX Ozone Season allowances held in the 
general account. I certify under penalty of law that I have personally 
examined, and am familiar with, the statements and information submitted 
in this document and all its attachments. Based on my inquiry of those 
individuals with primary responsibility for obtaining the information, I 
certify that the statements and information are to the best of my 
knowledge and belief true, accurate, and complete. I am aware that there 
are significant penalties for submitting false statements and 
information or omitting required statements and information, including 
the possibility of fine or imprisonment.''
    (iii) The Administrator will accept or act on a submission 
concerning the general account only if the submission has been made, 
signed, and certified in accordance with paragraph (b)(2)(ii) of this 
section.
    (3) Changing CAIR authorized account representative and alternate 
CAIR authorized account representative; changes in persons with 
ownership interest. (i) The CAIR authorized account representative for a 
general account may be changed at any time upon receipt by the 
Administrator of a superseding complete application for a general 
account under paragraph (b)(1) of this section. Notwithstanding any such 
change, all representations, actions, inactions, and submissions by the 
previous CAIR authorized account representative before the time and date 
when the Administrator receives the superseding application for a 
general account shall be binding on the new CAIR authorized account 
representative and the persons with an ownership interest with respect 
to the CAIR NOX Ozone Season allowances in the general 
account.
    (ii) The alternate CAIR authorized account representative for a 
general account may be changed at any time upon receipt by the 
Administrator of a superseding complete application for a general 
account under paragraph (b)(1) of this section. Notwithstanding any such 
change, all representations, actions, inactions, and submissions by the 
previous alternate CAIR authorized account representative before the 
time and date when the Administrator receives the superseding 
application for a general account shall be binding on the new alternate 
CAIR authorized account representative and the persons with an ownership 
interest with respect to the CAIR NOX Ozone Season allowances 
in the general account.
    (iii)(A) In the event a person having an ownership interest with 
respect to CAIR NOX Ozone Season allowances in the general 
account is not included in the list of such persons in the application 
for a general account, such person shall be deemed to be subject to and

[[Page 836]]

bound by the application for a general account, the representation, 
actions, inactions, and submissions of the CAIR authorized account 
representative and any alternate CAIR authorized account representative 
of the account, and the decisions and orders of the Administrator or a 
court, as if the person were included in such list.
    (B) Within 30 days following any change in the persons having an 
ownership interest with respect to CAIR NOX Ozone Season 
allowances in the general account, including the addition of a new 
person, the CAIR authorized account representative or any alternate CAIR 
authorized account representative shall submit a revision to the 
application for a general account amending the list of persons having an 
ownership interest with respect to the CAIR NOX Ozone Season 
allowances in the general account to include the change.
    (4) Objections concerning CAIR authorized account representative and 
alternate CAIR authorized account representative. (i) Once a complete 
application for a general account under paragraph (b)(1) of this section 
has been submitted and received, the Administrator will rely on the 
application unless and until a superseding 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)(3)(i) or (ii) of this 
section, no objection or other communication submitted to the 
Administrator concerning the authorization, or any representation, 
action, inaction, or submission of the CAIR authorized account 
representative or any alternate CAIR authorized account representative 
for a general account shall affect any representation, action, inaction, 
or submission of the CAIR authorized account representative or any 
alternative CAIR authorized account representative or the finality of 
any decision or order by the Administrator under the CAIR NOX 
Ozone Season Trading Program.
    (iii) The Administrator will not adjudicate any private legal 
dispute concerning the authorization or any representation, action, 
inaction, or submission of the CAIR authorized account representative or 
any alternate CAIR authorized account representative for a general 
account, including private legal disputes concerning the proceeds of 
CAIR NOX Ozone Season allowance transfers.
    (c) Account identification. The Administrator will assign a unique 
identifying number to each account established under paragraph (a) or 
(b) of this section.
    (5) Delegation by CAIR authorized account representative and 
alternate CAIR authorized account representative. (i) A CAIR authorized 
account representative may delegate, to one or more natural persons, his 
or her authority to make an electronic submission to the Administrator 
provided for or required under subparts FFFF and GGGG of this part.
    (ii) An alternate CAIR authorized account representative may 
delegate, to one or more natural persons, his or her authority to make 
an electronic submission to the Administrator provided for or required 
under subparts FFFF and GGGG of this part.
    (iii) In order to delegate authority to make an electronic 
submission to the Administrator in accordance with paragraph (b)(5)(i) 
or (ii) of this section, the CAIR authorized account representative or 
alternate CAIR authorized account representative, as appropriate, must 
submit to the Administrator a notice of delegation, in a format 
prescribed by the Administrator, that includes the following elements:
    (A) The name, address, e-mail address, telephone number, and 
facsimile transmission number (if any) of such CAIR authorized account 
representative 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 of 
electronic submissions under paragraph (b)(5)(i) or (ii) of this section 
for which authority is delegated to him or her;
    (D) The following certification statement by such CAIR authorized 
account representative or alternate CAIR authorized account 
representative: ``I agree that any electronic submission

[[Page 837]]

to the Administrator that is by an agent identified in this notice of 
delegation and of a type listed for such agent in this notice of 
delegation and that is made when I am a CAIR authorized account 
representative or alternate CAIR authorized representative, as 
appropriate, and before this notice of delegation is superseded by 
another notice of delegation under 40 CFR 96.351(b)(5)(iv) shall be 
deemed to be an electronic submission by me.''; and
    (E) The following certification statement by such CAIR authorized 
account representative or alternate CAIR authorized account 
representative: ``Until this notice of delegation is superseded by 
another notice of delegation under 40 CFR 96.351(b)(5)(iv), I agree to 
maintain an e-mail account and to notify the Administrator immediately 
of any change in my e-mail address unless all delegation of 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 authorized 
account representative or alternate CAIR authorized account 
representative identified in such notice, upon receipt of such notice by 
the Administrator and until receipt by the Administrator of a 
superseding notice of delegation submitted by such CAIR authorized 
account representative or alternate CAIR authorized account 
representative, as appropriate. The superseding notice of delegation may 
replace any previously identified agent, add a new agent, or eliminate 
entirely any delegation of authority.
    (v) Any electronic submission covered by the certification in 
paragraph (b)(5)(iii)(D) of this section and made in accordance with a 
notice of delegation effective under paragraph (b)(5)(iv) of this 
section shall be deemed to be an electronic submission by the CAIR 
designated representative or alternate CAIR designated representative 
submitting 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 Season 
Allowance Tracking System account, all submissions to the Administrator 
pertaining to the account, including, but not limited to, submissions 
concerning the deduction or transfer of CAIR NOX Ozone Season 
allowances in the account, shall be made only by the CAIR authorized 
account representative for the account.



Sec. 96.353  Recordation of CAIR NOX Ozone Season allowance allocations.

    (a) By September 30, 2007, the Administrator will record in the CAIR 
NOX Ozone Season source's compliance account the CAIR 
NOX Ozone Season allowances allocated for the CAIR 
NOX Ozone Season units at the source, as submitted by the 
permitting authority in accordance with Sec. 96.341(a), for the control 
periods in 2009, 2010, 2011, 2012, 2013, and 2014.
    (b) By December 1, 2009, the Administrator will record in the CAIR 
NOX Ozone Season source's compliance account the CAIR 
NOX Ozone Season allowances allocated for the CAIR 
NOX Ozone Season units at the source, as submitted by the 
permitting authority in accordance with Sec. 96.341(b), for the 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 Season 
source's compliance account the CAIR NOX Ozone Season 
allowances allocated for the CAIR NOX Ozone Season units at 
the source, as submitted by the permitting authority in accordance with 
Sec. 96.341(b), for the control period in the sixth year after the year 
of the applicable deadline for recordation under this paragraph.
    (d) By September 1, 2009 and September 1 of each year thereafter, 
the Administrator will record in the CAIR NOX Ozone Season 
source's compliance account the CAIR NOX Ozone Season 
allowances allocated for the CAIR NOX Ozone Season units at 
the source, as submitted by the permitting authority or determined by 
the Administrator in accordance with Sec. 96.341(c), for the control 
period in the year of the applicable

[[Page 838]]

deadline for recordation under this paragraph.
    (e) Serial numbers for allocated CAIR NOX Ozone Season 
allowances. When recording the allocation of CAIR NOX Ozone 
Season allowances for a CAIR NOX Ozone Season unit in a 
compliance account, the Administrator will assign each CAIR 
NOX Ozone Season allowance a unique identification number 
that will include digits identifying the year of the control period for 
which the CAIR NOX Ozone Season allowance is allocated.

[70 FR 25382, May 12, 2005, as amended at 71 FR 25394, Apr. 28, 2006]

    Editorial Note: At 71 FR 25395, Apr. 28, 2006, Sec. 96.353(d) was 
amended; however, the amendment could not be incorporated due to 
inaccurate amendatory instruction.



Sec. 96.354  Compliance with CAIR NOX emissions limitation.

    (a) Allowance transfer deadline. The CAIR NOX Ozone 
Season allowances are available to be deducted for compliance with a 
source's CAIR NOX Ozone Season emissions limitation for a 
control period in a given calendar year only if the CAIR NOX 
Ozone Season allowances:
    (1) Were allocated for the control period in the year or a prior 
year; and
    (2) Are held in the compliance account as of the allowance transfer 
deadline for the control period or are transferred into the compliance 
account by a CAIR NOX Ozone Season allowance transfer 
correctly submitted for recordation under Sec. Sec. 96.360 and 96.361 
by the allowance transfer deadline for the control period.
    (c)(1) Identification of CAIR NO X Ozone Season 
allowances by serial number. The CAIR authorized account representative 
for a source's compliance account may request that specific CAIR 
NOX Ozone Season allowances, identified by serial number, in 
the compliance account be deducted for emissions or excess emissions for 
a control period in accordance with paragraph (b) or (d) of this 
section. Such request shall be submitted to the Administrator by the 
allowance transfer deadline for the control period and include, in a 
format prescribed by the Administrator, the identification of the CAIR 
NOX Ozone Season source and the appropriate serial numbers.
    (2) First-in, first-out. The Administrator will deduct CAIR 
NOX Ozone Season allowances under paragraph (b) or (d) of 
this section from the source's compliance account, in the absence of an 
identification or in the case of a partial identification of CAIR 
NOX Ozone Season allowances by serial number under paragraph 
(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 were 
allocated to the units at the source, in the order of recordation; and 
then
    (ii) Any CAIR NOX Ozone Season allowances that were 
allocated to any entity and transferred and recorded in the compliance 
account pursuant to subpart GGGG of this part, in the order of 
recordation.
    (d) Deductions for excess emissions. (1) After making the deductions 
for compliance under paragraph (b) of this section for a control period 
in a calendar year in which the CAIR NOX Ozone Season source 
has excess emissions, the Administrator will deduct from the source's 
compliance account an amount of CAIR NOX Ozone Season 
allowances, allocated for the control period in the immediately 
following calendar year, equal to 3 times the number of tons of the 
source's excess emissions.
    (2) Any allowance deduction required under paragraph (d)(1) of this 
section shall not affect the liability of the owners and operators of 
the CAIR NOX Ozone Season source or the CAIR NOX 
Ozone Season units at the source for any fine, penalty, or assessment, 
or their obligation to comply with any other remedy, for the same 
violations, as ordered under the Clean Air Act or applicable State law.
    (e) Recordation of deductions. The Administrator will record in the 
appropriate compliance account all deductions from such an account under 
paragraphs (b) and (d) of this section and subpart IIII.
    (f) Administrator's action on submissions. (1) The Administrator may 
review and conduct independent audits concerning any submission under 
the

[[Page 839]]

CAIR NOX Ozone Season Trading Program and make appropriate 
adjustments of the information in the submissions.
    (2) The Administrator may deduct CAIR NOX Ozone Season 
allowances from or transfer CAIR NOX Ozone Season allowances 
to a source's compliance account based on the information in the 
submissions, as adjusted under paragraph (f)(1) of this section, 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 for 
future use or transfer in a compliance account or a general account in 
accordance with paragraph (b) of this section.
    (b) Any CAIR NOX Ozone Season allowance that is held in a 
compliance account or a general account will remain in such account 
unless and until the CAIR NOX Ozone Season allowance 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, Apr. 28, 2006, Sec. 96.355 was 
amended; however, the amendment could not be incorporated due to 
inaccurate amendatory instruction.



Sec. 96.356  Account error.

    The Administrator may, at his or her sole discretion and on his or 
her own motion, correct any error in any CAIR NOX Ozone 
Season Allowance Tracking System account. Within 10 business days of 
making such correction, the Administrator will notify the CAIR 
authorized account representative for the account.



Sec. 96.357  Closing of general accounts.

    (a) The CAIR authorized account representative of a general account 
may submit to the Administrator a request to close the account, which 
shall include a correctly submitted allowance transfer under Sec. Sec. 
96.360 and 96.361 for any CAIR NOX Ozone Season allowances in 
the account to one or more other CAIR NOX Ozone Season 
Allowance Tracking System accounts.
    (b) If a general account has no allowance transfers in or out of the 
account for a 12-month period or longer and does not contain any CAIR 
NOX Ozone Season allowances, the Administrator may notify the 
CAIR authorized account representative for the account that the account 
will be closed following 20 business days after the notice is sent. The 
account will be closed after the 20-day period unless, before the end of 
the 20-day period, the Administrator receives a correctly submitted 
transfer of CAIR NOX Ozone Season allowances into the account 
under Sec. Sec. 96.360 and 96.361 or a statement submitted by the CAIR 
authorized account representative demonstrating to the satisfaction of 
the Administrator 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 Allowance Transfers

    Source: 70 FR 25382, May 12, 2005, unless otherwise noted.



Sec. 96.360  Submission of CAIR NOX Ozone Season allowance transfers.

    A CAIR authorized account representative seeking recordation of a 
CAIR NOX Ozone Season allowance transfer shall submit the 
transfer to the Administrator. To be considered correctly submitted, the 
CAIR NOX Ozone Season allowance transfer shall include the 
following elements, in a format specified by the Administrator:
    (a) The account numbers for both the transferor and transferee 
accounts;
    (b) The serial number of each CAIR NOX Ozone Season 
allowance that is in the transferor account and is to be transferred; 
and
    (c) The name and signature of the CAIR authorized account 
representative of the transferor account and the date signed.



Sec. 96.361  EPA recordation.

    (a) Within 5 business days (except as provided in paragraph (b) of 
this section) of receiving a CAIR NOX Ozone Season allowance 
transfer, the Administrator will record a CAIR NOX Ozone 
Season allowance transfer by moving

[[Page 840]]

each CAIR NOX Ozone Season allowance from the transferor 
account to the transferee account as specified by the request, provided 
that:
    (1) The transfer is correctly submitted under Sec. 96.360; and
    (2) The transferor account includes each CAIR NOX Ozone 
Season allowance identified by serial number in the transfer.
    (b) A CAIR NOX Ozone Season allowance transfer that is 
submitted for recordation after the allowance transfer deadline for a 
control period and that includes any CAIR NOX Ozone Season 
allowances allocated for any control period before such allowance 
transfer deadline will not be recorded until after the Administrator 
completes the deductions under Sec. 96.354 for the control period 
immediately before such allowance transfer deadline.
    (c) Where a CAIR NOX Ozone Season allowance transfer 
submitted 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 of 
recordation of a CAIR NOX Ozone Season allowance transfer 
under Sec. 96.361, the Administrator will notify the CAIR authorized 
account representatives of both the transferor and transferee accounts.
    (b) Notification of non-recordation. Within 10 business days of 
receipt of a CAIR NOX Ozone Season allowance transfer that 
fails to meet the requirements of Sec. 96.361(a), the Administrator 
will notify the CAIR authorized account representatives of 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 a CAIR 
NOX Ozone Season allowance transfer for recordation following 
notification of non-recordation.



                  Subpart HHHH_Monitoring and Reporting

    Source: 70 FR 25382, May 12, 2005, unless otherwise noted.



Sec. 96.370  General requirements.

    The owners and operators, and to the extent applicable, the CAIR 
designated representative, of a CAIR NOX Ozone Season unit, 
shall comply with the monitoring, recordkeeping, and reporting 
requirements as provided in this subpart and in subpart H of part 75 of 
this chapter. For purposes of complying with such requirements, the 
definitions in Sec. 96.302 and in Sec. 72.2 of this chapter shall 
apply, and the terms ``affected unit,'' ``designated representative,'' 
and ``continuous emission monitoring system'' (or ``CEMS'') in part 75 
of this chapter shall be deemed to refer to the terms ``CAIR 
NOX Ozone Season unit,'' ``CAIR designated representative,'' 
and ``continuous emission monitoring system'' (or ``CEMS'') 
respectively, as defined in Sec. 96.302. The owner or operator of a 
unit that is not a CAIR NOX Ozone Season unit but that is 
monitored under Sec. 75.72(b)(2)(ii) of this chapter shall comply with 
the same monitoring, recordkeeping, and reporting requirements as a CAIR 
NOX Ozone Season unit.
    (a) Requirements for installation, certification, and data 
accounting. The owner or operator of each CAIR NOX Ozone 
Season unit shall:
    (1) Install all monitoring systems required under this subpart for 
monitoring NOX mass emissions and individual unit heat input 
(including all systems required to monitor NOX emission rate, 
NOX concentration, stack gas moisture content, stack gas flow 
rate, CO2 or O2 concentration, 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 under 
Sec. 96.371 and meet all other requirements of this subpart and part 75 
of this chapter applicable to the monitoring systems under paragraph 
(a)(1) of this section; and
    (3) Record, report, and quality-assure the data from the monitoring 
systems under paragraph (a)(1) of this section.

[[Page 841]]

    (b) Compliance deadlines. Except as provided in paragraph (e) of 
this section, the owner or operator shall meet the monitoring system 
certification and other requirements of paragraphs (a)(1) and (2) of 
this section on or before the following dates. The owner or operator 
shall record, report, and quality-assure the data from the monitoring 
systems under paragraph (a)(1) of this section on and after the 
following dates.
    (1) For the owner or operator of a CAIR NOX Ozone Season 
unit that commences commercial operation before July 1, 2007, by May 1, 
2008.
    (2) For the owner or operator of a CAIR NOX Ozone Season 
unit that commences commercial operation on or after July 1, 2007 and 
that reports on an annual basis under Sec. 96.374(d), by the later of 
the following dates:
    (i) 90 unit operating days or 180 calendar days, whichever occurs 
first, after the date on which the unit commences commercial operation; 
or
    (ii) May 1, 2008.
    (3) For the owner or operator of a CAIR NOX Ozone Season 
unit that commences commercial operation on or after July 1, 2007 and 
that reports on a control period basis under Sec. 96.374(d)(2)(ii), by 
the later of the following dates:
    (i) 90 unit operating days or 180 calendar days, whichever occurs 
first, after the date on which the unit commences commercial operation; 
or
    (ii) If the compliance date under paragraph (b)(3)(i) of this 
section is not during a control period, May 1 immediately following the 
compliance date under paragraph (b)(3)(i) of this section.
    (4) For the owner or operator of a CAIR NOX Ozone Season 
unit for which construction of a new stack or flue or installation of 
add-on NOX emission controls is completed after the 
applicable deadline under paragraph (b)(1), (2), (6), or (7) of this 
section and that reports on an annual basis under Sec. 96.374(d), by 90 
unit operating days or 180 calendar days, whichever occurs first, after 
the date on which emissions first exit to the atmosphere through the new 
stack or flue or add-on NOX emissions controls.
    (5) For the owner or operator of a CAIR NOX Ozone Season 
unit for which construction of a new stack or flue or installation of 
add-on NOX emission controls is completed after the 
applicable deadline under paragraph (b)(1), (3), (6), or (7) of this 
section and that reports on a control period basis under Sec. 
96.374(d)(2)(ii), by the later of the following dates:
    (i) 90 unit operating days or 180 calendar days, whichever occurs 
first, after the date on which emissions first exit to the atmosphere 
through the new stack or flue or add-on NOX emissions 
controls; or
    (ii) If the compliance date under paragraph (b)(5)(i) of this 
section is not during a control period, May 1 immediately following the 
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 CAIR 
NOX Ozone Season opt-in permit application is submitted and 
not withdrawn and a CAIR opt-in permit is not yet issued or denied under 
subpart IIII of this part, by the date specified in Sec. 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 NOX Ozone 
Season opt-in unit, by the date on which the CAIR NOX Ozone 
Season opt-in unit under subpart IIII of this part enters the CAIR 
NOX Ozone Season Trading Program as provided in Sec. 
96.384(g).
    (c) Reporting data. The owner or operator of a CAIR NOX 
Ozone Season unit that does not meet the applicable compliance date set 
forth in paragraph (b) of this section for any monitoring system under 
paragraph (a)(1) of this section shall, for each such monitoring system, 
determine, record, and report maximum potential (or, as appropriate, 
minimum potential) values for NOX concentration, 
NOX emission rate, stack gas flow rate, stack gas moisture 
content, fuel flow rate, and any other parameters required to determine 
NOX mass emissions and 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

[[Page 842]]

of appendix E to part 75 of this chapter, as applicable.
    (d) Prohibitions. (1) No owner or operator of a CAIR NOX 
Ozone Season unit shall use any alternative monitoring system, 
alternative reference method, or any other alternative to any 
requirement of this subpart without having obtained prior written 
approval in accordance with Sec. 96.375.
    (2) No owner or operator of a CAIR NOX Ozone Season unit 
shall operate the unit so as to discharge, or allow to be discharged, 
NOX emissions to the atmosphere without accounting for all 
such emissions in accordance with the applicable provisions of this 
subpart and part 75 of this chapter.
    (3) No owner or operator of a CAIR NOX Ozone Season unit 
shall disrupt the continuous emission monitoring system, any portion 
thereof, or any other approved emission monitoring method, and thereby 
avoid monitoring and recording NOX mass emissions discharged 
into the atmosphere or heat input, except for periods of recertification 
or periods when calibration, quality assurance testing, or maintenance 
is performed in accordance with the applicable provisions of this 
subpart and part 75 of this chapter.
    (4) No owner or operator of a CAIR NOX Ozone Season unit 
shall retire or permanently discontinue use of the continuous emission 
monitoring system, any component thereof, or any other approved 
monitoring system under this subpart, except under any one of the 
following circumstances:
    (i) During the period that the unit is covered by an exemption under 
Sec. 96.305 that is in effect;
    (ii) The owner or operator is monitoring emissions from the unit 
with another certified monitoring system approved, in accordance with 
the applicable provisions of this subpart and part 75 of this chapter, 
by the permitting authority for use at that unit that provides emission 
data for the same pollutant or parameter as the retired or discontinued 
monitoring system; or
    (iii) The CAIR designated representative submits notification of the 
date of certification testing of a replacement monitoring system for the 
retired or discontinued monitoring system in accordance with Sec. 
96.371(d)(3)(i).
    (e) Long-term cold storage. The owner or operator of a CAIR 
NOX Ozone Season unit is subject to the applicable provisions 
of part 75 of this chapter concerning units in long-term cold 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 Season unit 
shall be exempt from the initial certification requirements of this 
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 in 
accordance with part 75 of this chapter; and
    (2) The applicable quality-assurance and quality-control 
requirements of Sec. 75.21 of this chapter and appendix B, appendix D, 
and appendix E to part 75 of this chapter are fully met for the 
certified monitoring system described in paragraph (a)(1) of this 
section.
    (b) The recertification provisions of this section shall apply to a 
monitoring system under Sec. 96.370(a)(1) exempt from initial 
certification requirements under paragraph (a) of this section.
    (c) If the Administrator has previously approved a petition under 
Sec. 75.17(a) or (b) of this chapter for apportioning the 
NOX emission rate measured in a common stack or a petition 
under Sec. 75.66 of this chapter for an alternative to a requirement in 
Sec. 75.12 or Sec. 75.17 of this chapter, the CAIR designated 
representative shall resubmit the petition to the Administrator under 
Sec. 96.375(a) to determine whether the approval applies under the CAIR 
NOX Ozone Season Trading Program.
    (d) Except as provided in paragraph (a) of this section, the owner 
or operator of a CAIR NOX Ozone Season unit shall comply with 
the following initial certification and recertification procedures for a 
continuous monitoring system (i.e., a continuous emission monitoring 
system and an excepted monitoring system under appendices D and E to 
part 75 of this chapter) under Sec. 96.370(a)(1). The owner or operator 
of a unit that qualifies to use the low mass

[[Page 843]]

emissions excepted monitoring methodology under Sec. 75.19 of this 
chapter or that qualifies to use an alternative monitoring system under 
subpart E of part 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 or operator 
shall ensure that each continuous monitoring system under Sec. 
96.370(a)(1)(including the automated data acquisition and handling 
system) successfully completes all of the initial certification testing 
required under Sec. 75.20 of this chapter by the applicable deadline in 
Sec. 96.370(b). In addition, whenever the owner or operator installs a 
monitoring system to meet the requirements of this subpart in a location 
where no such monitoring system was previously installed, initial 
certification in accordance with Sec. 75.20 of this chapter is 
required.
    (2) Requirements for recertification. Whenever the owner or operator 
makes a replacement, modification, or change in any certified continuous 
emission monitoring system under Sec. 96.370(a)(1) that may 
significantly affect the ability of the system to accurately measure or 
record NOX mass emissions or heat input rate or to meet the 
quality-assurance and quality-control requirements of Sec. 75.21 of 
this chapter or appendix B to part 75 of this chapter, the owner or 
operator shall recertify the monitoring system 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's operation that may significantly change the stack 
flow or concentration profile, the owner or operator shall recertify 
each continuous emission monitoring system whose accuracy is potentially 
affected by the change, in accordance with Sec. 75.20(b) of this 
chapter. Examples of changes to a continuous emission monitoring system 
that require recertification include: replacement of the analyzer, 
complete replacement of an existing continuous emission monitoring 
system, or change in location or orientation of the sampling probe or 
site. Any fuel flowmeter systems, and any excepted NOX 
monitoring system under appendix E to part 75 of this chapter, under 
Sec. 96.370(a)(1) are subject to the recertification requirements in 
Sec. 75.20(g)(6) of this chapter.
    (3) Approval process for initial certification and recertification. 
Paragraphs (d)(3)(i) through (iv) of this section apply to both initial 
certification and recertification of a continuous monitoring system 
under Sec. 96.370(a)(1). For recertifications, 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 designated 
representative shall submit to the permitting authority, the appropriate 
EPA Regional Office, and the Administrator written notice of the dates 
of certification testing, in accordance with Sec. 96.373.
    (ii) Certification application. The CAIR designated representative 
shall submit to the permitting authority a certification application for 
each monitoring system. A complete certification application shall 
include the information specified in Sec. 75.63 of this chapter.
    (iii) Provisional certification date. The provisional certification 
date for a monitoring system shall be determined in accordance with 
Sec. 75.20(a)(3) of this chapter. A provisionally certified monitoring 
system may be used under the CAIR NOX Ozone Season Trading 
Program for a period not to exceed 120 days after receipt by the 
permitting authority of the complete certification application for the 
monitoring system under paragraph (d)(3)(ii) of this section. Data 
measured and recorded by the provisionally certified monitoring system, 
in accordance with the requirements of part 75 of this chapter, will be 
considered valid quality-assured data (retroactive to the date and time 
of provisional certification), provided that the permitting authority 
does not invalidate the provisional certification by issuing a notice of 
disapproval within 120 days of the date of receipt of the complete 
certification application by the permitting authority.
    (iv) Certification application approval process. The permitting 
authority will issue a written notice of approval or

[[Page 844]]

disapproval of the certification application to the owner or operator 
within 120 days of receipt of the complete certification application 
under paragraph (d)(3)(ii) of this section. In the event the permitting 
authority does not issue such a notice within such 120-day period, each 
monitoring system that meets the applicable performance requirements of 
part 75 of this chapter and is included in the certification application 
will be deemed certified for use under the CAIR NOX Ozone 
Season Trading Program.
    (A) Approval notice. If the certification application is complete 
and shows that each monitoring system meets the applicable performance 
requirements of part 75 of this chapter, then the permitting authority 
will issue a written notice of approval of the certification application 
within 120 days of receipt.
    (B) Incomplete application notice. If the certification application 
is not complete, then the permitting authority will issue a written 
notice of incompleteness that sets a reasonable date by which the CAIR 
designated representative must submit the additional information 
required to complete the certification application. If the CAIR 
designated representative does not comply with the notice of 
incompleteness by the specified date, then the permitting authority may 
issue a notice of disapproval under paragraph (d)(3)(iv)(C) of this 
section. The 120-day review period shall not begin before receipt of a 
complete certification application.
    (C) Disapproval notice. If the certification application shows that 
any monitoring system does not meet the performance requirements of part 
75 of this chapter or if the certification application is incomplete and 
the requirement for disapproval under paragraph (d)(3)(iv)(B) of this 
section is met, then the permitting authority will issue a written 
notice of disapproval of the certification application. Upon issuance of 
such notice of disapproval, the provisional certification is invalidated 
by the permitting authority and the data measured and recorded by each 
uncertified monitoring system shall not be considered valid quality-
assured data beginning with the date and hour of provisional 
certification (as defined under Sec. 75.20(a)(3) of this chapter). The 
owner or operator shall follow the procedures for loss of certification 
in paragraph (d)(3)(v) of this section for each monitoring system that 
is disapproved for initial certification.
    (D) Audit decertification. The permitting authority or, for a CAIR 
NOX Ozone Season opt-in unit or a unit for which a CAIR opt-
in permit application is submitted and not withdrawn and a CAIR opt-in 
permit is not yet issued or denied under subpart IIII of this part, the 
Administrator may issue a notice of disapproval of the certification 
status of a monitor in accordance with Sec. 96.372(b).
    (v) Procedures for loss of certification. If the permitting 
authority or the Administrator issues a notice of disapproval of a 
certification application under paragraph (d)(3)(iv)(C) of this section 
or a notice of 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 unit operation 
during the period of invalid data specified under Sec. 
75.20(a)(4)(iii), Sec. 75.20(g)(7), or Sec. 75.21(e) of this chapter 
and continuing until the applicable 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 potential NOX 
emission rate, as defined in Sec. 72.2 of this chapter.
    (2) For a disapproved NOX pollutant concentration monitor 
and disapproved flow monitor, respectively, the maximum potential 
concentration of NOX and the maximum potential flow rate, as 
defined in sections 2.1.2.1 and 2.1.4.1 of appendix A to part 75 of this 
chapter.
    (3) For a disapproved moisture monitoring system and disapproved 
diluent gas monitoring system, respectively, the minimum potential 
moisture percentage and either the maximum potential CO2 
concentration or the minimum potential O2 concentration (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.

[[Page 845]]

    (4) For a disapproved fuel flowmeter system, the maximum potential 
fuel flow rate, as defined in section 2.4.2.1 of appendix D to part 75 
of this chapter.
    (5) For a disapproved excepted NOX monitoring system 
under appendix E to part 75 of this chapter, the fuel-specific maximum 
potential NOX emission rate, as defined in Sec. 72.2 of this 
chapter.
    (B) The CAIR designated representative shall submit a notification 
of certification retest dates and a new certification application in 
accordance with paragraphs (d)(3)(i) and (ii) of this section.
    (C) The owner or operator shall repeat all certification tests or 
other requirements that were failed by the monitoring system, as 
indicated in the permitting authority's or the Administrator's notice of 
disapproval, no later than 30 unit operating days after the date of 
issuance of the notice of disapproval.
    (e) Initial certification and recertification procedures for units 
using the low mass emission excepted methodology under Sec. 75.19 of 
this chapter. The owner or operator of a unit qualified to use the low 
mass emissions (LME) excepted methodology under Sec. 75.19 of this 
chapter shall meet the applicable certification and recertification 
requirements in Sec. Sec. 75.19(a)(2) and 75.20(h) of this chapter. If 
the owner or operator of such a unit elects to certify a fuel flowmeter 
system for heat input determination, the owner or operator shall also 
meet the certification and recertification requirements in Sec. 
75.20(g) of this chapter.
    (f) Certification/recertification procedures for alternative 
monitoring systems. The CAIR designated representative of each unit for 
which the owner or operator intends to use an alternative monitoring 
system approved by the Administrator and, if applicable, the permitting 
authority under subpart E of part 75 of this chapter shall comply with 
the applicable notification and application procedures 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 validation 
requirements of part 75 of this chapter, data shall be substituted using 
the applicable missing data procedures in subpart D or subpart H of, or 
appendix D or appendix E to, part 75 of this chapter.
    (b) Audit decertification. Whenever both an audit of a monitoring 
system and a review of the initial certification or recertification 
application reveal that any monitoring system should not have been 
certified or recertified because it did not meet a particular 
performance specification or other requirement under Sec. 96.371 or the 
applicable provisions of part 75 of this chapter, both at the time of 
the initial certification or recertification application submission and 
at the time of the audit, the permitting authority or, for a CAIR 
NOX Ozone Season opt-in unit or a unit for which a CAIR opt-
in permit application is submitted and not withdrawn and a CAIR opt-in 
permit is not yet issued or denied under subpart IIII of this part, the 
Administrator will issue a notice of disapproval of the certification 
status of such monitoring system. For the purposes of this paragraph, an 
audit shall be either a field audit or an audit of any information 
submitted to the permitting authority or the Administrator. By issuing 
the notice of disapproval, the permitting authority or the Administrator 
revokes prospectively the certification status of the monitoring system. 
The data measured and recorded by the monitoring system shall not be 
considered valid quality-assured data from the date of issuance of the 
notification of the revoked certification status until the date and time 
that the owner or operator completes subsequently approved initial 
certification or recertification tests for the monitoring system. The 
owner or operator shall follow the applicable initial certification or 
recertification procedures in Sec. 96.371 for each disapproved 
monitoring system.



Sec. 96.373  Notifications.

    The CAIR designated representative for a CAIR NOX Ozone 
Season unit

[[Page 846]]

shall submit written notice to the permitting authority and the 
Administrator in accordance with Sec. 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 representative shall 
comply with all recordkeeping and reporting requirements in this 
section, the applicable recordkeeping and reporting requirements under 
Sec. 75.73 of this chapter, and the requirements of Sec. 96.310(e)(1).
    (b) Monitoring plans. The owner or operator of a CAIR NOX 
Ozone Season unit shall comply with requirements of Sec. 75.73(c) and 
(e) of this chapter and, for a unit for which a CAIR opt-in permit 
application is submitted and not withdrawn and a CAIR opt-in permit is 
not yet issued or denied under subpart IIII of this part, Sec. Sec. 
96.383 and 96.384(a).
    (c) Certification applications. The CAIR designated representative 
shall submit an application to the permitting authority within 45 days 
after completing all initial certification or recertification tests 
required under Sec. 96.371, including the information required under 
Sec. 75.63 of this chapter.
    (d) Quarterly reports. The CAIR designated representative shall 
submit quarterly reports, as follows:
    (1) If the CAIR NOX Ozone Season unit is subject to an 
Acid Rain emissions limitation or a CAIR NOX emissions 
limitation or if the owner or operator of such unit chooses to report on 
an annual basis under this subpart, the CAIR designated representative 
shall meet the requirements of subpart H of part 75 of this chapter 
(concerning monitoring of NOX mass emissions) for such unit 
for the entire year and shall report the NOX mass emissions 
data and heat input data for such unit, in an electronic quarterly 
report in a format prescribed by the Administrator, 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 after July 
1, 2007, the calendar quarter corresponding to the earlier of the date 
of provisional certification or the applicable deadline for initial 
certification under Sec. 96.370(b), unless that quarter is the third or 
fourth quarter of 2007 or the first quarter of 2008, in which case 
reporting shall commence in the quarter covering May 1, 2008 through 
June 30, 2008;
    (iii) Notwithstanding paragraphs (d)(1)(i) and (ii) of this section, 
for a unit for which a CAIR opt-in permit application is submitted and 
not withdrawn and a CAIR opt-in permit is not yet issued or denied under 
subpart IIII of this part, the calendar quarter corresponding to the 
date specified in Sec. 96.384(b); and
    (iv) Notwithstanding paragraphs (d)(1)(i) and (ii) of this section, 
for a CAIR NOX Ozone Season opt-in unit under subpart IIII of 
this part, the calendar quarter corresponding to the date on which the 
CAIR NOX Ozone Season opt-in unit enters the CAIR 
NOX Ozone Season Trading Program as provided in Sec. 
96.384(g).
    (2) If the CAIR NOX Ozone Season unit is not subject to 
an Acid Rain emissions limitation or a CAIR NOX emissions 
limitation, then the CAIR designated representative shall either:
    (i) Meet the requirements of subpart H of part 75 (concerning 
monitoring of NOX mass emissions) for such unit for the 
entire year and report the NOX mass emissions data and heat 
input data for such unit in accordance with paragraph (d)(1) of this 
section; or
    (ii) Meet the requirements of subpart H of part 75 for the control 
period (including the requirements in Sec. 75.74(c) of this chapter) 
and report NOX mass emissions data and heat input data 
(including the data described in Sec. 75.74(c)(6) of this chapter) for 
such unit only for the control period of each year and report, in an 
electronic quarterly report in a format prescribed by 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 after July 
1, 2007, the calendar quarter corresponding to the earlier of the date 
of

[[Page 847]]

provisional certification or the applicable deadline for initial 
certification under Sec. 96.370(b), unless that date is not during a 
control period, in which case reporting shall commence in the quarter 
that includes May 1 through June 30 of the first control period after 
such date;.
    (C) Notwithstanding paragraphs (d)(2)(ii)(A) and (2)(ii)(B) of this 
section, for a unit for which a CAIR opt-in permit application is 
submitted and not withdrawn and a CAIR opt-in permit is not yet issued 
or denied under subpart IIII of this part, the calendar quarter 
corresponding to the date specified in Sec. 96.384(b); and
    (D) Notwithstanding paragraphs (d)(2)(ii)(A) and (2)(ii)(B) of this 
section, for a CAIR NOX Ozone Season opt-in unit under 
subpart IIII of this part, the calendar quarter corresponding to the 
date on which the CAIR NOX Ozone Season opt-in unit enters 
the CAIR NOX Ozone Season Trading Program as provided in 
Sec. 96.384(g).
    (2) The CAIR designated representative shall submit each quarterly 
report to the Administrator within 30 days following the end of the 
calendar quarter covered by the report. Quarterly reports shall be 
submitted in the manner specified in Sec. 75.73(f) of this chapter.
    (3) For CAIR NOX Ozone Season units that are also subject 
to an Acid Rain emissions limitation or the CAIR NOX Annual 
Trading Program or CAIR SO2 Trading Program, quarterly 
reports shall include the applicable data and information required by 
subparts F through H of part 75 of this chapter as applicable, in 
addition to the NOX mass emission data, heat input data, and 
other information required by this subpart.
    (e) Compliance certification. The CAIR designated representative 
shall submit to the Administrator a compliance certification (in a 
format prescribed by the Administrator) in support of each quarterly 
report based on reasonable inquiry of those persons with primary 
responsibility for ensuring that all of the unit's emissions are 
correctly and fully monitored. The certification shall state that:
    (1) The monitoring data submitted were recorded in accordance with 
the applicable requirements of this subpart and part 75 of this chapter, 
including the quality assurance procedures and specifications;
    (2) For a unit with add-on NOX emission controls and for 
all hours where NOX data are substituted in accordance with 
Sec. 75.34(a)(1) of this chapter, the add-on emission controls were 
operating within the range of parameters listed in the quality 
assurance/quality control program under appendix B to part 75 of this 
chapter and the substitute data values do not systematically 
underestimate NOX emissions; and
    (3) For a unit that is reporting on a control period basis under 
paragraph (d)(2)(ii) of this section, the NOX emission rate 
and NOX concentration values substituted for missing data 
under subpart D of part 75 of this chapter are calculated using only 
values from a control period and do not systematically underestimate 
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, the CAIR 
designated representative of a CAIR NOX Ozone Season unit 
that is subject to an Acid Rain emissions limitation may submit a 
petition under Sec. 75.66 of this chapter to the Administrator 
requesting approval to apply an alternative to any requirement of this 
subpart. Application of an alternative to any requirement of this 
subpart is in accordance with this subpart only to the extent that the 
petition is approved in writing by the Administrator, in consultation 
with the permitting authority.
    (b)(1) The CAIR designated representative of a CAIR NOX 
Ozone Season unit that is not subject to an Acid Rain emissions 
limitation may submit a petition under Sec. 75.66 of this chapter to 
the permitting authority and the Administrator requesting approval to 
apply an alternative to any requirement of this subpart. Application of 
an alternative to any requirement of this subpart is in accordance with 
this subpart only to the extent that the petition is approved in writing 
by both the permitting authority and the Administrator.

[[Page 848]]

    (2) The CAIR designated representative of a CAIR NOX 
Ozone Season unit that is subject to an Acid Rain emissions limitation 
may submit a petition under Sec. 75.66 of this chapter to the 
permitting authority and the Administrator requesting approval to apply 
an alternative to a requirement concerning any additional continuous 
emission monitoring system required under Sec. 75.72 of this chapter. 
Application of an alternative to any such requirement is in accordance 
with this subpart only to the extent that the petition is approved in 
writing by both the permitting authority and the Administrator.



             Subpart IIII_CAIR NOX Ozone Season Opt-in Units

    Source: 70 FR 25382, May 12, 2005, unless otherwise noted.



Sec. 96.380  Applicability.

    A CAIR NOX Ozone Season opt-in unit must be a unit that:
    (a) Is located in the State;
    (b) Is not a CAIR NOX Ozone Season unit under Sec. 
96.304 and is not covered by a retired unit exemption under Sec. 96.305 
that is in effect;
    (c) Is not covered by a retired unit exemption under Sec. 72.8 of 
this chapter that is in effect;
    (d) Has or is required or qualified to have a title V operating 
permit or other federally enforceable permit; and
    (e) Vents all of its emissions to a stack and can meet the 
monitoring, recordkeeping, and reporting requirements of subpart HHHH of 
this part.



Sec. 96.381  General.

    (a) Except as otherwise provided in Sec. Sec. 96.301 through 
96.304, Sec. Sec. 96.306 through 96.308, and subparts BBBB and CCCC and 
subparts FFFF through HHHH of this part, a CAIR NOX Ozone 
Season opt-in unit shall be treated as a CAIR NOX Ozone 
Season unit 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 HHHH of this part to a unit for which a CAIR 
opt-in permit application is submitted and not withdrawn and a CAIR opt-
in permit is not yet issued or denied under this subpart, such unit 
shall be treated as a CAIR NOX Ozone Season unit before 
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 unit for 
which a CAIR opt-in permit application is submitted and not withdrawn 
and a CAIR opt-in permit is not yet issued or denied under this subpart, 
located at the same source as one or more CAIR NOX Ozone 
Season units shall have the same CAIR designated representative and 
alternate CAIR designated representative as such CAIR NOX 
Ozone Season units.



Sec. 96.383  Applying for CAIR opt-in permit.

    (a) Applying for initial CAIR opt-in permit. The CAIR designated 
representative of a unit meeting the requirements for a CAIR 
NOX Ozone Season opt-in unit in Sec. 96.380 may apply for an 
initial CAIR opt-in permit at any time, except as provided under Sec. 
96.386 (f) and (g), and, in order to apply, must submit the following:
    (1) A complete CAIR permit application under Sec. 96.322;
    (2) A certification, in a format specified by the permitting 
authority, that the unit:
    (i) Is not a CAIR NOX Ozone Season unit under Sec. 
96.304 and is not covered by a retired unit exemption under Sec. 96.305 
that is in effect;
    (ii) Is not covered by a retired unit exemption under Sec. 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 the 6 
months immediately preceding submission of the CAIR permit application 
under Sec. 96.322;
    (3) A monitoring plan in accordance with subpart HHHH of this part;
    (4) A complete certificate of representation under Sec. 96.313 
consistent with Sec. 96.382, if no CAIR designated representative has 
been previously designated for the source that includes the unit; and
    (5) A statement, in a format specified by the permitting authority, 
whether

[[Page 849]]

the CAIR designated representative requests that the unit be allocated 
CAIR NOX Ozone Season allowances under Sec. 96.388(b) or 
Sec. 96.388(c) (subject to the conditions in Sec. Sec. 96.384(h) and 
96.386(g)). If allocation under Sec. 96.388(c) is requested, this 
statement shall include a statement that the owners and operators of the 
unit intend to repower 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 representative of a 
CAIR NOX Ozone Season opt-in unit shall submit a complete 
CAIR permit application under Sec. 96.322 to renew the CAIR opt-in unit 
permit in accordance with the permitting authority's regulations for 
title V operating permits, or the permitting authority's regulations for 
other federally enforceable permits if applicable, addressing permit 
renewal.
    (2) Unless the permitting authority issues a notification of 
acceptance of withdrawal of the CAIR NOX Ozone Season opt-in 
unit from the CAIR NOX Ozone Season Trading Program in 
accordance with Sec. 96.186 or the unit becomes a CAIR NOX 
Ozone Season unit under Sec. 96.304, the CAIR NOX opt-in 
unit shall remain subject to the requirements for a CAIR NOX 
Ozone Season opt-in unit, even if the CAIR designated representative for 
the CAIR NOX Ozone Season opt-in unit fails to submit a CAIR 
permit application that 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 permit for 
a unit for which an initial application for a CAIR opt-in permit under 
Sec. 96.383 is submitted in accordance with the following:
    (a) Interim review of monitoring plan. The permitting authority and 
the Administrator will determine, on an interim basis, the sufficiency 
of the monitoring plan accompanying the initial application for a CAIR 
opt-in permit under Sec. 96.383. A monitoring plan is sufficient, for 
purposes of interim review, if the plan appears to contain information 
demonstrating that the NOX emissions rate and heat input of 
the unit and all other applicable parameters are monitored and reported 
in accordance with subpart HHHH of this part. A determination of 
sufficiency shall not be construed as acceptance or approval of the 
monitoring plan.
    (b) Monitoring and reporting. (1)(i) If the permitting authority and 
the Administrator determine that the monitoring plan is sufficient under 
paragraph (a) of this section, the owner or operator shall monitor and 
report the NOX emissions rate and the heat input of the unit 
and all other applicable parameters, in accordance with subpart HHHH of 
this part, starting on the date of certification of the appropriate 
monitoring systems under subpart HHHH of this part and continuing until 
a CAIR opt-in permit is denied under Sec. 96.384(f) or, if a CAIR opt-
in permit is issued, the date and time when the unit is withdrawn from 
the CAIR NOX Ozone Season Trading Program in accordance with 
Sec. 96.386.
    (ii) The monitoring and reporting under paragraph (b)(1)(i) of this 
section shall include the entire control period immediately before the 
date on which the unit enters the CAIR NOX Ozone Season 
Trading Program under Sec. 96.384(g), during which period monitoring 
system availability must not be less than 90 percent under subpart HHHH 
of this part and the unit must be in full compliance with any applicable 
State or Federal emissions or emissions-related requirements.
    (2) To the extent the NOX emissions rate and the heat 
input of the unit are monitored and reported in accordance with subpart 
HHHH of this part for one or more control periods, in addition to the 
control period under paragraph (b)(1)(ii) of this section, during which 
control periods monitoring system availability is not less than 90 
percent under subpart HHHH of this part and the unit is in full 
compliance with any applicable State or Federal emissions or emissions-
related requirements and which control periods begin not more than 3 
years before the unit enters the CAIR NOX Ozone Season 
Trading Program under Sec. 96.384(g), such information shall be used as 
provided in paragraphs (c) and (d) of this section.

[[Page 850]]

    (c) Baseline heat input. The unit's baseline heat input shall equal:
    (1) If the unit's NOX emissions rate and heat input are 
monitored and reported for only one control period, in accordance with 
paragraph (b)(1) of this section, the unit's total heat input (in mmBtu) 
for the control period; or
    (2) If the unit's NOX emissions rate and heat input are 
monitored and reported for more than one control period, in accordance 
with paragraphs (b)(1) and (2) of this section, the average of the 
amounts of the unit's total heat input (in mmBtu) for the control 
periods under paragraphs (b)(1)(ii) and (2) of this section.
    (d) Baseline NOX emission rate. The unit's baseline 
NOX emission rate shall equal:
    (1) If the unit's NOX emissions rate and heat input are 
monitored and reported for only one control period, in accordance with 
paragraph (b)(1) of this section, the unit's NOX emissions 
rate (in lb/mmBtu) for the control period;
    (2) If the unit's NOX emissions rate and heat input are 
monitored and reported for more than one control period, in accordance 
with paragraphs (b)(1) and (2) of this section, and the unit does not 
have add-on NOX emission controls during any such control 
periods, the average of the amounts of the unit's NOX 
emissions rate (in lb/mmBtu) for the control periods under paragraphs 
(b)(1)(ii) and (2) of this section; or
    (3) If the unit's NOX emissions rate and heat input are 
monitored and reported for more than one control period, in accordance 
with paragraphs (b)(1) and (2) of this section, and the unit has add-on 
NOX emission controls during any such control periods, the 
average of the amounts of the unit's NOX emissions rate (in 
lb/mmBtu) for such control periods during which the unit has add-on 
NOX emission controls.
    (e) Issuance of CAIR opt-in permit. After calculating the baseline 
heat input and the baseline NOX emissions rate for the unit 
under paragraphs (c) and (d) of this section and if the permitting 
authority determines that the CAIR designated representative shows that 
the unit meets the requirements for a CAIR NOX Ozone Season 
opt-in unit in Sec. 96.380 and meets the elements certified in Sec. 
96.383(a)(2), the permitting authority will issue a CAIR opt-in permit. 
The permitting authority will provide a copy of the CAIR opt-in permit 
to the Administrator, who will then establish a compliance account for 
the source that includes the CAIR NOX Ozone Season opt-in 
unit unless 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 any time before 
issuance of a CAIR opt-in permit for the unit, the permitting authority 
determines that the CAIR designated representative fails to show that 
the unit meets the requirements for a CAIR NOX Ozone Season 
opt-in unit in Sec. 96.380 or meets the elements certified in Sec. 
96.383(a)(2), the permitting authority will issue a denial of a CAIR 
opt-in permit for the unit.
    (g) Date of entry into CAIR NOX Ozone Season Trading 
Program. A unit for which an initial CAIR opt-in permit is issued by the 
permitting authority shall become a CAIR NOX Ozone Season 
opt-in unit, and a CAIR NOX Ozone Season unit, as of the 
later of May 1, 2009 or May 1 of the first control period 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 permitting authority 
issues a CAIR opt-in permit providing for, allocation to a CAIR 
NOX Ozone Season opt-in unit of CAIR NOX Ozone 
Season allowances under Sec. 96.388(c) and such unit is repowered after 
its date of entry into the CAIR NOX Ozone Season Trading 
Program under paragraph (g) of this section, the repowered unit shall be 
treated as a CAIR NOX Ozone Season opt-in unit replacing the 
original CAIR NOX Ozone Season opt-in unit, as of the date of 
start-up of the repowered unit's combustion chamber.
    (2) Notwithstanding paragraphs (c) and (d) of this section, as of 
the date of start-up under paragraph (h)(1) of this section, the 
repowered unit shall be deemed to have the same date of commencement of 
operation, date of commencement of commercial operation, baseline heat 
input, and baseline NOX

[[Page 851]]

emission rate as the original CAIR NOX Ozone Season opt-in 
unit, and the original CAIR NOX Ozone Season opt-in unit 
shall no longer be treated as a CAIR NOX Ozone Season opt-in 
unit or a CAIR NOX 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 application 
under 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 under Sec. 
96.384(d);
    (5) A statement whether the unit is to be allocated CAIR 
NOX Ozone Season allowances under Sec. 96.388(b) or Sec. 
96.388(c) (subject to the conditions in Sec. Sec. 96.384(h) and 
96.386(g));
    (6) A statement that the unit may withdraw from the CAIR 
NOX Ozone Season Trading Program only in accordance with 
Sec. 96.386; and
    (7) A statement that the unit is subject to, and the owners and 
operators of the unit must comply with, the requirements of Sec. 
96.387.
    (b) Each CAIR opt-in permit is deemed to incorporate automatically 
the definitions of terms under Sec. 96.302 and, upon recordation by the 
Administrator under subpart FFFF or GGGG of this part or this subpart, 
every allocation, transfer, or deduction of CAIR NOX Ozone 
Season allowances to or from the compliance account of the source that 
includes a CAIR NOX Ozone Season opt-in unit covered by the 
CAIR opt-in permit.
    (c) The CAIR opt-in permit shall be included, in a format specified 
by the permitting authority, in the CAIR permit for the source where the 
CAIR NOX Ozone Season opt-in unit is located and in a title V 
operating permit or other federally enforceable 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 CAIR 
NOX Ozone Season opt-in unit may withdraw from the CAIR 
NOX Ozone Season Trading Program, but only if the permitting 
authority issues a notification to the CAIR designated representative of 
the CAIR NOX Ozone Season opt-in unit of the acceptance of 
the withdrawal of the CAIR NOX Ozone Season opt-in unit in 
accordance with paragraph (d) of this section.
    (a) Requesting withdrawal. In order to withdraw a CAIR 
NOX Ozone Season opt-on unit from the CAIR NOX 
Ozone Season Trading Program, the CAIR designated representative of the 
CAIR NOX Ozone Season opt-in unit shall submit to the 
permitting authority a request to withdraw effective as of midnight of 
September 30 of a specified calendar year, which date must be at least 4 
years after September 30 of the year of entry into the CAIR 
NOX Ozone Season Trading Program under Sec. 96.384(g). The 
request must be submitted no later than 90 days before the requested 
effective date of withdrawal.
    (b) Conditions for withdrawal. Before a CAIR NOX Ozone 
Season opt-in unit covered by a request under paragraph (a) of this 
section may withdraw from the CAIR NOX Ozone Season Trading 
Program and the CAIR opt-in permit may be terminated under paragraph (e) 
of this section, the following conditions must be met:
    (1) For the control period ending on the date on which the 
withdrawal is to be effective, the source that includes the CAIR 
NOX Ozone Season opt-in unit must meet the requirement to 
hold CAIR NOX Ozone Season allowances under Sec. 96.306(c) 
and cannot have any excess emissions.
    (2) After the requirement for withdrawal under paragraph (b)(1) of 
this section is met, the Administrator will deduct from the compliance 
account of the source that includes the CAIR NOX Ozone Season 
opt-in unit CAIR NOX Ozone Season allowances equal in amount 
to and allocated for the same or a prior control period as any CAIR 
NOX Ozone Season allowances allocated to the CAIR 
NOX Ozone Season opt-in

[[Page 852]]

unit under Sec. 96.388 for any control period for which the withdrawal 
is to be effective. If there are no remaining CAIR NOX Ozone 
Season units at the source, the Administrator will close the compliance 
account, and the owners and operators of the CAIR NOX Ozone 
Season opt-in unit may submit a CAIR NOX Ozone Season 
allowance transfer for any remaining CAIR NOX Ozone Season 
allowances to another CAIR NOX Ozone Season Allowance 
Tracking System in accordance with subpart GGGG of this part.
    (c) Notification. (1) After the requirements for withdrawal under 
paragraphs (a) and (b) of this section are met (including deduction of 
the full amount of CAIR NOX Ozone Season allowances 
required), the permitting authority will issue a notification to the 
CAIR designated representative of the CAIR NOX Ozone Season 
opt-in unit of the acceptance of the withdrawal of the CAIR 
NOX Ozone Season opt-in unit as of midnight on September 30 
of the calendar year for which the withdrawal was requested.
    (2) If the requirements for withdrawal under paragraphs (a) and (b) 
of this section are not met, the permitting authority will issue a 
notification to the CAIR designated representative of the CAIR 
NOX Ozone Season opt-in unit that the CAIR NOX 
Ozone Season opt-in unit's request to withdraw is denied. Such CAIR 
NOX Ozone Season opt-in unit shall continue to be a CAIR 
NOX Ozone Season opt-in unit.
    (d) Permit amendment. After the permitting authority issues a 
notification under paragraph (c)(1) of this section that the 
requirements for withdrawal have been met, the permitting authority will 
revise the CAIR permit covering the CAIR NOX Ozone Season 
opt-in unit to terminate the CAIR opt-in permit for such unit as of the 
effective date specified under paragraph (c)(1) of this section. The 
unit shall continue to be a CAIR NOX Ozone Season opt-in unit 
until the effective date of the termination and shall comply with all 
requirements under the CAIR NOX Ozone Season Trading Program 
concerning any control periods for which the unit is a CAIR 
NOX Ozone Season opt-in unit, even if such requirements arise 
or must be complied with after the withdrawal takes effect.
    (e) Reapplication upon failure to meet conditions of withdrawal. If 
the permitting authority denies the CAIR NOX Ozone Season 
opt-in unit's request to withdraw, the CAIR designated representative 
may submit another request to withdraw in accordance with paragraphs (a) 
and (b) of this section.
    (f) Ability to reapply to the CAIR NOX Ozone Season 
Trading Program. Once a CAIR NOX Ozone Season opt-in unit 
withdraws from the CAIR NOX Ozone Season Trading Program and 
its CAIR opt-in permit is terminated under this section, the CAIR 
designated representative may not submit another application for a CAIR 
opt-in permit under Sec. 96.383 for such CAIR NOX Ozone 
Season opt-in unit before the date that is 4 years after the date on 
which the withdrawal became effective. Such new application for a CAIR 
opt-in permit will be treated as an initial application for a CAIR opt-
in permit 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 CAIR NOX Ozone 
Season Trading Program if the CAIR designated representative of the CAIR 
NOX Ozone Season opt-in unit requests, and the permitting 
authority issues a CAIR opt-in permit providing for, allocation to the 
CAIR NOX Ozone Season opt-in unit of CAIR NOX 
Ozone Season allowances under Sec. 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 Season opt-in unit 
becomes a CAIR NOX Ozone Season unit under Sec. 96.304, then 
the CAIR designated representative shall notify in writing the 
permitting authority and the Administrator of such change in the CAIR 
NOX Ozone Season opt-in unit's regulatory 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 CAIR 
NOX Ozone Season unit under Sec. 96.304, the permitting 
authority will revise the CAIR NOX Ozone Season opt-in unit's 
CAIR opt-in permit to meet the

[[Page 853]]

requirements of a CAIR permit under Sec. 96.323, and remove the CAIR 
opt-in permit provisions, as of the date on which the CAIR 
NOX Ozone Season opt-in unit becomes a CAIR NOX 
Ozone Season unit under Sec. 96.304.
    (2)(i) The Administrator will deduct from the compliance account of 
the source that includes the CAIR NOX Ozone Season opt-in 
unit that becomes a CAIR NOX Ozone Season unit under Sec. 
96.304, CAIR NOX Ozone Season allowances equal in amount to 
and allocated for the same or a prior control period as:
    (A) Any CAIR NOX Ozone Season allowances allocated to the 
CAIR NOX Ozone Season opt-in unit under Sec. 96.388 for any 
control period after the date on which the CAIR NOX Ozone 
Season opt-in unit becomes a CAIR NOX Ozone Season unit under 
Sec. 96.304; and
    (B) If the date on which the CAIR NOX Ozone Season opt-in 
unit becomes a CAIR NOX Ozone Season unit under Sec. 96.304 
is not September 30, the CAIR NOX Ozone Season allowances 
allocated to the CAIR NOX Ozone Season opt-in unit under 
Sec. 96.388 for the control period that includes the date on which the 
CAIR NOX Ozone Season opt-in unit becomes a CAIR 
NOX Ozone Season unit under Sec. 96.304, multiplied by the 
ratio of the number of days, in the control period, starting with the 
date on which the CAIR NOX Ozone Season opt-in unit becomes a 
CAIR NOX Ozone Season unit under Sec. 96.304 divided by the 
total number of days in the control period and rounded to the nearest 
whole allowance as appropriate.
    (ii) The CAIR designated representative shall ensure that the 
compliance account of the source that includes the CAIR NOX 
Ozone Season opt-in unit that becomes a CAIR NOX Ozone Season 
unit under Sec. 96.304 contains the CAIR NOX Ozone Season 
allowances 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 CAIR 
NOX Ozone Season opt-in unit becomes a CAIR NOX 
Ozone Season unit under Sec. 96.304, the CAIR NOX Ozone 
Season opt-in unit will be allocated CAIR NOX Ozone Season 
allowances under Sec. 96.342.
    (ii) If the date on which the CAIR NOX Ozone Season opt-
in unit becomes a CAIR NOX Ozone Season unit under Sec. 
96.304 is not September 30, the following amount of CAIR NOX 
Ozone Season allowances will be allocated to the CAIR NOX 
Ozone Season opt-in unit (as a CAIR NOX Ozone Season unit) 
under Sec. 96.342 for the control period that includes the date on 
which the CAIR NOX Ozone Season opt-in unit becomes a CAIR 
NOX Ozone Season unit under Sec. 96.304:
    (A) The amount of CAIR NOX Ozone Season allowances 
otherwise allocated to the CAIR NOX Ozone Season opt-in unit 
(as a CAIR NOX Ozone Season unit) under Sec. 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 Season opt-in unit 
becomes a CAIR NOX Ozone Season unit under Sec. 96.304, 
divided by the total number of days in the control 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 CAIR 

NOX Ozone Season opt-in units.

    (a) Timing requirements. (1) When the CAIR opt-in permit is issued 
under Sec. 96.384(e), the permitting authority will allocate CAIR 
NOX Ozone Season allowances to the CAIR NOX Ozone 
Season opt-in unit, and submit to the Administrator the allocation for 
the control period in which a CAIR NOX Ozone Season opt-in 
unit enters the CAIR NOX Ozone Season Trading Program under 
Sec. 96.384(g), in accordance with paragraph (b) or (c) of this 
section.
    (2) By no later than July 31 of the control period after the control 
period in which a CAIR NOX Ozone Season opt-in unit enters 
the CAIR NOX Ozone Season Trading Program under Sec. 
96.384(g) and July 31 of each year thereafter, the permitting authority 
will allocate CAIR NOX Ozone Season allowances to the CAIR 
NOX Ozone Season opt-in unit, and submit to the Administrator 
the allocation for the

[[Page 854]]

control period that includes such submission deadline and in which the 
unit is a CAIR NOX Ozone Season opt-in unit, in accordance 
with paragraph (b)or (c) of this section.
    (b) Calculation of allocation. For each control period for which a 
CAIR NOX Ozone Season opt-in unit is to be allocated CAIR 
NOX Ozone Season allowances, the permitting authority will 
allocate in accordance with the following procedures:
    (1) The heat input (in mmBtu) used for calculating the CAIR 
NOX Ozone Season allowance allocation will be the lesser of:
    (i) The CAIR NOX Ozone Season opt-in unit's baseline heat 
input determined under Sec. 96.384(c); or
    (ii) The CAIR NOX Ozone Season opt-in unit's heat input, 
as determined in accordance with subpart HHHH of this part, for the 
immediately prior control period, except when the allocation is being 
calculated for the control period in which the CAIR NOX Ozone 
Season opt-in unit enters the CAIR NOX Ozone Season Trading 
Program under Sec. 96.384(g).
    (2) The NOX emission rate (in lb/mmBtu) used for 
calculating CAIR NOX Ozone Season allowance allocations will 
be the lesser of:
    (i) The CAIR NOX Ozone Season opt-in unit's baseline 
NOX emissions rate (in lb/mmBtu) determined under Sec. 
96.384(d) and multiplied by 70 percent; or
    (ii) The most stringent State or Federal NOX emissions 
limitation applicable to the CAIR NOX Ozone Season opt-in 
unit at any time during the control period for which CAIR NOX 
Ozone Season allowances are to be allocated.
    (3) The permitting authority will allocate CAIR NOX Ozone 
Season allowances to the CAIR NOX Ozone Season opt-in unit in 
an amount equaling 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 
nearest whole allowance as appropriate.
    (c) Notwithstanding paragraph (b) of this section and if the CAIR 
designated representative requests, and the permitting authority issues 
a CAIR opt-in permit'' (based on a demonstration of the intent to 
repower stated under Sec. 96.383(a)(5)) providing for, allocation to a 
CAIR NOX Ozone Season opt-in unit of CAIR NOX 
Ozone Season allowances under this paragraph (subject to the conditions 
in Sec. Sec. 96.384(h) and 96.386(g)), the permitting authority will 
allocate to the CAIR NOX Ozone Season opt-in unit as follows:
    (1) For each control period in 2009 through 2014 for which the CAIR 
NOX Ozone Season opt-in unit is to be allocated CAIR 
NOX Ozone Season allowances,
    (i) The heat input (in mmBtu) used for calculating CAIR 
NOX Ozone Season allowance allocations will be determined as 
described in paragraph (b)(1) of this section.
    (ii) The NOX emission rate (in lb/mmBtu) used for 
calculating CAIR NOX Ozone Season allowance allocations will 
be the lesser of:
    (A) The CAIR NOX Ozone Season opt-in unit's baseline 
NOX emissions rate (in lb/mmBtu) determined under Sec. 
96.384(d); or
    (B) The most stringent State or Federal NOX emissions 
limitation applicable to the CAIR NOX Ozone Season opt-in 
unit at any time during the control period in which the CAIR 
NOX Ozone Season opt-in unit enters the CAIR NOX 
Ozone Season Trading Program under Sec. 96.384(g).
    (iii) The permitting authority will allocate CAIR NOX 
Ozone 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 under 
paragraph (c)(1)(ii) of this section, divided by 2,000 lb/ton, and 
rounded to the nearest whole allowance as appropriate.
    (2) For each control period in 2015 and thereafter for which the 
CAIR NOX Ozone Season opt-in unit is to be allocated CAIR 
NOX Ozone Season allowances,
    (i) The heat input (in mmBtu) used for calculating the CAIR 
NOX Ozone Season allowance allocations will be determined as 
described in paragraph (b)(1) of this section.
    (ii) The NOX emission rate (in lb/mmBtu) used for 
calculating the CAIR NOX Ozone Season allowance allocation 
will be the lesser of:

[[Page 855]]

    (A) 0.15 lb/mmBtu;
    (B) The CAIR NOX Ozone Season opt-in unit's baseline 
NOX emissions rate (in lb/mmBtu) determined under Sec. 
96.384(d); or
    (C) The most stringent State or Federal NOX emissions 
limitation applicable to the CAIR NOX Ozone Season opt-in 
unit at any time during the control period for which CAIR NOX 
Ozone Season allowances are to be allocated.
    (iii) The permitting authority will allocate CAIR NOX 
Ozone 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 under 
paragraph (c)(2)(ii) of this section, divided by 2,000 lb/ton, and 
rounded to the nearest whole allowance as appropriate.
    (d) Recordation. (1) The Administrator will record, in the 
compliance account of the source that includes the CAIR NOX 
Ozone Season opt-in unit, the CAIR NOX Ozone Season 
allowances allocated by the 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 CAIR 
NOX Ozone Season opt-in unit enters the CAIR NOX 
Ozone Season Trading Program under Sec. 96.384(g), and September 1 of 
each year thereafter, the Administrator will record, in the compliance 
account of the source that includes the CAIR NOX Ozone Season 
opt-in unit, the CAIR NOX Ozone Season allowances allocated 
by the permitting authority to the CAIR NOX Ozone Season opt-
in unit 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 TRADING PROGRAM AND CAIR NOX 

AND SO2 TRADING PROGRAMS--Table of Contents




         Subpart A_NOX Budget Trading Program General Provisions

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 Representative for NOX Budget Sources

97.10 Authorization and responsibilities of NOX authorized 
          account representative.
97.11 Alternate NOX authorized account representative.
97.12 Changing NOX authorized account representative and 
          alternate NOX authorized account representative; 
          changes in owners and operators.
97.13 Account certificate of representation.
97.14 Objections concerning NOX authorized account 
          representative.

                            Subpart C_Permits

97.20 General NOX Budget Trading Program permit requirements.
97.21 Submission of NOX Budget permit applications.
97.22 Information requirements for NOX Budget permit 
          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 allowance allocations.
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 System responsibilities 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.

[[Page 856]]

                   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 Trading Program.
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 Program General 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 CAIR NOX Sources

97.110 Authorization and responsibilities of CAIR designated 
          representative.
97.111 Alternate CAIR designated representative.
97.112 Changing CAIR designated representative and alternate CAIR 
          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 and alternate CAIR 
          designated representative.

                           Subpart CC_Permits

97.120 General CAIR NOX Annual Trading Program permit 
          requirements.
97.121 Submission of CAIR permit applications.
97.122 Information requirements for CAIR permit applications.
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 NOX allowance 
          allocations.
97.142 CAIR NOX allowance allocations.
97.143 Compliance supplement pool.
97.144 Alternative of allocation of CAIR NOX allowances and 
          compliance supplement pool by permitting authority.

Appendix A to Subpart EE of Part 97--States With Approved 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 account representative.
97.153 Recordation of CAIR NOX allowance allocations.
97.154 Compliance with CAIR NOX emissions limitation.
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 allowance transfers.
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 Trading Program.

[[Page 857]]

97.187 Change in regulatory status.
97.188 CAIR NOX allowance allocations to CAIR NOX 
          opt-in units.

Appendix A to Subpart II of Part 97--States With Approved State 
          Implementation Plan Revisions Concerning CAIR NOX 
          Opt-in Units

         Subpart AAA_CAIR SO2 Trading Program General Provisions

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 CAIR SO2 Sources

97.210 Authorization and responsibilities of CAIR designated 
          representative.
97.211 Alternate CAIR designated representative.
97.212 Changing CAIR designated representative and alternate CAIR 
          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 and alternate CAIR 
          designated representative.

                           Subpart CCC_Permits

97.220 General CAIR SO2 Trading Program permit requirements.
97.221 Submission of CAIR permit applications.
97.222 Information requirements for CAIR permit applications.
97.223 CAIR permit contents and term.
97.224 CAIR permit revisions.

Subparts DDD--EEE [Reserved]

             Subpart FFF_CAIR SO2 Allowance Tracking System

97.250 [Reserved]
97.251 Establishment of accounts.
97.252 Responsibilities of CAIR authorized account representative.
97.253 Recordation of CAIR SO2 allowances.
97.254 Compliance with CAIR SO2 emissions limitation.
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 allowance transfers.
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.
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 CAIR SO2 
          opt-in units.

Appendix A to Subpart III of Part 97--States With Approved State 
          Implementation Plan Revisions Concerning CAIR SO2 
          Opt-In Units

  Subpart AAAA_CAIR NOX Ozone Season Trading Program 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 With Approved State 
          Implementation Plan Revisions Concerning Applicability

 Subpart BBBB_CAIR Designated Representative for CAIR NOX Ozone Season 
                                 Sources

97.310 Authorization and responsibilities of CAIR designated 
          representative.
97.311 Alternate CAIR designated representative.
97.312 Changing CAIR designated representative and alternate CAIR 
          designated representative; changes in owners and operators.
97.313 Certificate of representation.

[[Page 858]]

97.314 Objections concerning CAIR designated representative.
97.315 Delegation by CAIR designated representative and alternate CAIR 
          designated representative.

                          Subpart CCCC_Permits

97.320 General CAIR NOX Ozone Season Trading Program permit 
          requirements.
97.321 Submission of CAIR permit applications.
97.322 Information requirements for CAIR permit applications.
97.323 CAIR permit contents and term.
97.324 CAIR permit revisions.

Subpart DDDD [Reserved]

        Subpart EEEE_CAIR NOX Ozone Season Allowance Allocations

97.340 State trading budgets.
97.341 Timing requirements for CAIR NOX Ozone Season 
          allowance allocations.
97.342 CAIR NOX Ozone Season allowance allocations.
97.343 Alternative of allocation of CAIR NOX Ozone Season 
          allowances by permitting authority.

   Appendix A to Subpart EEEE of Part 97--States With Approved State 
          Implementation Plan Revisions Concerning Allocations

      Subpart FFFF_CAIR NOX Ozone Season Allowance Tracking System

97.350 [Reserved]
97.351 Establishment of accounts.
97.352 Responsibilities of CAIR authorized account representative.
97.353 Recordation of CAIR NOX Ozone Season allowance 
          allocations.
97.354 Compliance with CAIR NOX emissions limitation.
97.355 Banking.
97.356 Account error.
97.357 Closing of general accounts.

         Subpart GGGG_CAIR NOX Ozone Season Allowance Transfers

97.360 Submission of CAIR NOX Ozone Season allowance 
          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 Season Trading Program.
97.387 Change in regulatory status.
97.388 CAIR NOX Ozone Season allowance allocations to CAIR 
          NOX Ozone Season opt-in units.

Appendix A to Subpart IIII of Part 97--States With Approved State 
          Implementation Plan Revisions Concerning CAIR NOX 
          Ozone Season Opt-In Units
Appendix A to Part 97--Final Section 126 Rule: EGU Allocations, 2003-
          2007
Appendix B to Part 97--Final Section 126 Rule: Non-EGU Allocations, 
          2003-2007
Appendix C to Part 97--Final Section 126 Rule: Trading Budget, 2003-2007
Appendix D to Part 97--Final Section 126 Rule: State Compliance 
          Supplement Pools for the Section 126 Final Rule (Tons)

    Authority: 42 U.S.C. 7401, 7403, 7410, 7426, 7601, and 7651, et seq.

    Source: 65 FR 2727, Jan. 18, 2000, unless otherwise noted. 71 FR 
25396, 25422, and 25443, Apr. 28, 2006



         Subpart A_NOX Budget Trading Program General Provisions



Sec. 97.1  Purpose.

    This part establishes general provisions and the applicability, 
permitting, allowance, excess emissions, monitoring, and opt-in 
provisions 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 and nitrogen oxides, an 
ozone precursor.



Sec. 97.2  Definitions.

    The terms used in this part shall have the meanings set forth in 
this section as follows:
    Account number means the identification number given by the 
Administrator to each NOX Allowance Tracking System account.
    Acid Rain emissions limitation means, as defined in Sec. 72.2 of 
this chapter, a

[[Page 859]]

limitation on emissions of sulfur dioxide or nitrogen oxides under the 
Acid Rain Program under title IV of the Clean Air Act.
    Administrator means the Administrator of the United States 
Environmental Protection Agency or the Administrator's duly authorized 
representative.
    Allocate or allocation means, with regard to NOX 
allowances, the determination by the Administrator of the number of 
NOX allowances to be initially credited to a NOX 
Budget unit or an allocation set-aside.
    Automated data acquisition and handling system or DAHS means that 
component of the CEMS, or other emissions monitoring system approved for 
use under subpart H of this part, designed to interpret and convert 
individual output signals from pollutant concentration monitors, flow 
monitors, diluent gas monitors, and other component parts of the 
monitoring system to produce a continuous record of the measured 
parameters in the measurement units required by subpart H of this part.
    Boiler means an enclosed fossil or other fuel-fired combustion 
device used to produce heat and to transfer heat to recirculating water, 
steam, or other medium.
    Clean Air Act means the Clean Air Act, 42 U.S.C. 7401 et seq.
    Combined cycle system means a system comprised of one or more 
combustion turbines, heat recovery steam generators, and steam turbines 
configured to improve overall efficiency of electricity generation or 
steam production.
    Combustion turbine means an enclosed fossil or other fuel-fired 
device that is comprised of a compressor, a combustor, and a turbine, 
and in which the flue gas resulting from the combustion of fuel in the 
combustor passes through the turbine, rotating the turbine.
    Commence commercial operation means, with regard to a unit that 
serves a generator, to have begun to produce steam, gas, or other heated 
medium used to generate electricity for sale or use, including test 
generation. Except as provided in Sec. 97.4(b), Sec. 97.5, or subpart 
I of this part, for a unit that is a NOX Budget unit under 
Sec. 97.4(a) on the date the unit commences commercial operation, such 
date shall remain the unit's date of commencement of commercial 
operation even if the unit is subsequently modified, reconstructed, or 
repowered. Except as provided in Sec. 97.4(b), Sec. 97.5, or subpart I 
of this part, for a unit that is not a NOX Budget unit under 
Sec. 97.4(a) on the date the unit commences commercial operation, the 
date the unit becomes a NOX Budget unit under Sec. 97.4(a) 
shall be 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 in Sec. 97.4(b), Sec. 
97.5, or subpart I of this part for a unit that is a NOX 
Budget unit under Sec. 97.4(a) on the date of commencement of 
operation, such date shall remain the unit's date of commencement of 
operation even if the unit is subsequently modified, reconstructed, or 
repowered. Except as provided in Sec. 97.4(b), Sec. 97.5, or subpart I 
of this part, for a unit that is not a NOX Budget unit under 
Sec. 97.4(a) on the date of commencement of operation, the date the 
unit becomes a NOX Budget unit under Sec. 97.4(a) shall be 
the unit's date of commencement of operation.
    Common stack means a single flue through which emissions from two or 
more units are exhausted.
    Compliance account means a NOX Allowance Tracking System 
account, established by the Administrator for a NOX Budget 
unit under subpart F of this part, in which the NOX allowance 
allocations for the unit are initially recorded and in which are held 
NOX allowances available for use by the unit for a control 
period for the purpose of meeting the unit's NOX Budget 
emissions limitation.
    Continuous emission monitoring system or CEMS means the equipment 
required under subpart H of this part to sample, analyze, measure, and 
provide, by means of readings taken at least once every 15 minutes 
(using an automated data acquisition and handling system (DAHS)), a 
permanent record of nitrogen oxides (NOX) emissions, stack 
gas volumetric flow rate or stack gas moisture content (as applicable), 
in a manner consistent with part 75 of this

[[Page 860]]

chapter. The following are the principal types of continuous emission 
monitoring systems required under subpart H of this part:
    (1) A flow monitoring system, consisting of a stack flow rate 
monitor and an automated DAHS. A flow monitoring system provides a 
permanent, continuous record of stack gas volumetric flow rate, in units 
of standard cubic feet per hour (scfh);
    (2) A nitrogen oxides concentration monitoring system, consisting of 
a NOX pollutant concentration monitor and an automated DAHS. 
A NOX concentration monitoring system provides a permanent, 
continuous record of NOX emissions in units of parts per 
million (ppm);
    (3) A nitrogen oxides emission rate (or NOX-diluent) 
monitoring system, consisting of a NOX pollutant 
concentration monitor, a diluent gas (CO2 or O2) 
monitor, and an automated DAHS. A NOX concentration 
monitoring system provides a permanent, continuous record of: 
NOX concentration in units of parts per million (ppm), 
diluent gas concentration in units of percent O2 or 
CO2 (percent O2 or CO2), and 
NOX emission rate in units of pounds per million British 
thermal units (lb/mmBtu); and
    (4) A moisture monitoring system, as defined in Sec. 75.11(b)(2) of 
this chapter. A moisture monitoring system provides a permanent, 
continuous record of the stack gas moisture content, in units of percent 
H2O (percent H2O).
    Control period means the period beginning May 1 of a year and ending 
on September 30 of the same year, inclusive.
    Electricity for sale under firm contract to the grid means 
electricity for sale where the capacity involved is intended to be 
available at all times during the period covered by a guaranteed 
commitment to deliver, even under adverse conditions.
    Emissions means air pollutants exhausted from a unit or source into 
the atmosphere, as measured, recorded, and reported to the Administrator 
by the NOX authorized account representative and as 
determined by the Administrator in accordance with subpart H of this 
part.
    Energy Information Administration means the Energy Information 
Administration of the United States Department of Energy.
    Excess emissions means any tonnage of nitrogen oxides emitted by a 
NOX Budget unit during a control period that exceeds the 
NOX Budget emissions limitation for the unit.
    Fossil fuel means natural gas, petroleum, coal, or any form of 
solid, liquid, or gaseous fuel derived from such material.
    Fossil fuel fired means, with regard to a unit:
    (1) For units that commenced operation before January 1, 1996, the 
combustion of fossil fuel, alone or in combination with any other fuel, 
where fossil fuel actually combusted comprises more than 50 percent of 
the annual heat input on a Btu basis during 1995, or, if a unit had no 
heat input in 1995, during the last year of operation of the unit prior 
to 1995;
    (2) For units that commenced operation on or after January 1, 1996 
and before January 1, 1997, the combustion of fossil fuel, alone or in 
combination with any other fuel, where fossil fuel actually combusted 
comprises more than 50 percent of the annual heat input on a Btu basis 
during 1996; or
    (3) For units that commence operation on or after January 1, 1997:
    (i) The combination of fossil fuel, alone or in combustion with any 
other fuel, where fossil fuel actually combusted comprises more than 50 
percent of the annual heat input on a Btu basis during any year; or
    (ii) The combination of fossil fuel, alone or in combination with 
any other fuel, where fossil fuel is projected to comprise more than 50 
percent of the annual heat input on a Btu basis during any year, 
provided that the unit shall be ``fossil fuel-fired'' as of the date, 
during such year, on which the unit begins combusting fossil fuel.
    General account means a NOX Allowance Tracking System 
account, established under subpart F of this part, that is not a 
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

[[Page 861]]

(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 fuel feed rate into 
a combustion device (in lb of fuel/time), as measured, recorded, and 
reported to the Administrator by the NOX authorized account 
representative and as determined by the Administrator in accordance with 
subpart H of this part. Heat input does 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 specific fuel, the 
amount of heat input attributed to the fuel (in mmBtu) divided by the 
unit operating time (in hr) during which the unit combusts the fuel.
    Life-of-the-unit, firm power contractual arrangement means a unit 
participation power sales agreement under which a utility or industrial 
customer reserves, or is entitled to receive, a specified amount or 
percentage of nameplate capacity and associated energy from any 
specified unit and pays its proportional amount of such 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, including 
contracts that permit an election for early termination; or
    (3) For a period equal to or greater than 25 years or 70 percent of 
the economic useful life of the unit determined as of the time the unit 
is built, with option rights to purchase or release some portion of the 
nameplate capacity and associated energy generated by the unit at the 
end of the period.
    Maximum design heat input means the ability of a unit to combust a 
stated maximum amount of fuel per hour (in mmBtu/hr) on a steady state 
basis, as determined by the physical design and physical characteristics 
of the unit.
    Maximum potential hourly heat input means an hourly heat input (in 
mmBtu/hr) used for reporting purposes when a unit lacks certified 
monitors to report heat input. If the unit intends to use appendix D of 
part 75 of this chapter to report heat input, this value should be 
calculated, in accordance with part 75 of this chapter, using the 
maximum fuel flow rate and the maximum gross calorific value. If the 
unit intends to use a flow monitor and a diluent gas monitor, this value 
should be reported, in accordance with part 75 of this chapter, using 
the maximum potential flowrate and either the maximum carbon dioxide 
concentration (in percent CO2) or the minimum oxygen 
concentration (in percent O2).
    Maximum potential NOX emission rate means the emission rate of 
nitrogen oxides (in lb/mmBtu) calculated in accordance with section 3 of 
appendix F of part 75 of this chapter, using the maximum potential 
concentration of NOX under section 2 of appendix A of part 75 
of this chapter, and either the maximum oxygen concentration (in percent 
O2) or the minimum 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 specific maximum hourly 
heat input (in mmBtu/hr) which is the higher of the manufacturer's 
maximum rated hourly heat input or the highest observed hourly heat 
input.
    Monitoring system means any monitoring system that meets the 
requirements of subpart H of this part, including a continuous emissions 
monitoring system, an excepted monitoring system, or an alternative 
monitoring system.
    Most stringent State or Federal NOX emissions limitation means the 
lowest NOX emissions limitation (in lb/mmBtu) that is 
applicable to the unit under State or Federal law, regardless of the 
averaging period to which the emissions limitation applies.
    Nameplate capacity means the maximum electrical generating output 
(in MWe) that a generator can sustain over a specified period of time 
when not restricted by seasonal or other deratings as measured in 
accordance with the United States Department of Energy standards.
    Non-title V permit means a federally enforceable permit administered 
by the permitting authority pursuant to the Clean Air Act and regulatory 
authority under the Clean Air Act, other than

[[Page 862]]

title V of the Clean Air Act and part 70 or 71 of this chapter.
    NOX allowance means a limited authorization by the Administrator 
under the NOX Budget Trading Program to emit up to one ton of 
nitrogen oxides during the control period of the specified year or of 
any year thereafter, except as provided under Sec. 97.54(f). No 
provision of the NOX Budget Trading Program, the 
NOX Budget permit application, the NOX Budget 
permit, or an exemption under Sec. 97.4(b) or Sec. 97.5 and no 
provision of law shall be construed to limit the authority of the United 
States to terminate or limit such authorization, which does not 
constitute a property right. For purposes of all sections of this part 
except Sec. 97.40, Sec. 97.41, Sec. 97.42, Sec. 97.43, or Sec. 
97.88, ``NOX allowance'' also includes an authorization to 
emit up to one ton of nitrogen oxides during the control period of the 
specified year or of any year thereafter by the permitting authority or 
the Administrator in accordance with a State NOX Budget 
Trading Program established, and approved and administered by the 
Administrator, pursuant to Sec. 51.121 of this chapter.
    NOX allowance deduction or deduct NOX allowances means the permanent 
withdrawal of NOX allowances by the Administrator from a 
NOX Allowance Tracking System compliance account or overdraft 
account to account for the number of tons of NOX emissions 
from a NOX Budget unit for a control period, determined in 
accordance with subparts H and F of this part, or for any other 
NOX allowance withdrawal requirement under this part.
    NOX Allowance Tracking System means the system by which the 
Administrator records allocations, deductions, and transfers of 
NOX allowances under the NOX Budget Trading 
Program.
    NOX Allowance Tracking System account means an account in the 
NOX Allowance Tracking System established by the 
Administrator for purposes of recording the allocation, holding, 
transferring, or deducting of NOX allowances.
    NOX allowance transfer deadline means midnight of November 30 or, if 
November 30 is not a business day, midnight of the first business day 
thereafter and is the deadline by which NOX allowances must 
be submitted for recordation in a NOX Budget unit's 
compliance account, or the overdraft account of the source where the 
unit is located, in order to meet the unit's NOX Budget 
emissions limitation for the control period immediately preceding such 
deadline.
    NOX allowances held or hold NOX allowances means the NOX 
allowances recorded by the Administrator, or submitted to the 
Administrator for recordation, in accordance with subparts F and G of 
this part, in a NOX Allowance Tracking System account.
    NOX authorized account representative means, for a NOX 
Budget source or NOX Budget unit at the source, the natural 
person who is authorized by the owners and operators of the source and 
all NOX Budget units at the source, in accordance with 
subpart B of this part, to represent and legally bind each owner and 
operator in matters pertaining to the NOX Budget Trading 
Program or, for a general account, the natural person who is authorized, 
in accordance with subpart F of this part, to transfer or otherwise 
dispose of NOX allowances held in the general account.
    NOX Budget emissions limitation means, for a NOX Budget 
unit, the tonnage equivalent of the NOX allowances available 
for compliance deduction for the unit under Sec. 97.54(a), (b), (e), 
and (f) in a control period adjusted by deductions of such 
NOX allowances to account for actual heat input under Sec. 
97.42(e) for the control period or to account for excess emissions for a 
prior control period under Sec. 97.54(d) or to account for withdrawal 
from the NOX Budget Trading Program, or for a change in 
regulatory status, of a NOX Budget opt-in unit under Sec. 
97.86 or Sec. 97.87.
    NOX Budget opt-in permit means a NOX Budget permit 
covering a NOX Budget opt-in unit.
    NOX Budget opt-in unit means a unit that has been elected to become 
a NOX Budget unit under the NOX Budget Trading 
Program and whose NOX Budget opt-in permit has been issued 
and is in effect under subpart I of this part.

[[Page 863]]

    NOX Budget permit means the legally binding and federally 
enforceable written document, or portion of such document, issued by the 
permitting authority under this part, including any permit revisions, 
specifying the NOX Budget Trading Program requirements 
applicable to a NOX Budget source, to each NOX 
Budget unit at the NOX Budget source, and to the owners and 
operators and the NOX authorized account representative of 
the NOX Budget source and each NOX Budget unit.
    NOX Budget source means a source that includes one or more 
NOX Budget units.
    NOX Budget Trading Program means a multistate nitrogen oxides air 
pollution control and emission reduction program established by the 
Administrator in accordance with this part and pursuant to Sec. 52.34 
of this chapter, as a means of mitigating the interstate transport of 
ozone and nitrogen oxides, an ozone precursor.
    NOX Budget unit means a unit that is subject to the NOX 
Budget emissions limitation under Sec. 97.4(a) or Sec. 97.80.
    Operating means, with regard to a unit under Sec. Sec. 97.22(d)(2) 
and 97.80, having documented heat input for more than 876 hours in the 6 
months immediately preceding the submission of an application for an 
initial NOX Budget permit under Sec. 97.83(a). The unit's 
documented heat input will be determined in accordance with part 75 of 
this chapter if the unit was otherwise subject to the requirements of 
part 75 of this chapter during that 6-month period or will be based on 
the best available data reported to the Administrator for the unit if 
the unit was not otherwise subject to the requirements of part 75 of 
this chapter during that 6-month period.
    Operator means any person who operates, controls, or supervises a 
NOX Budget unit, a NOX Budget source, or a unit 
for which an application for a NOX Budget opt-in permit under 
Sec. 97.83 is submitted and not denied or withdrawn and shall include, 
but not be limited to, any holding company, utility system, or plant 
manager of such a unit or source.
    Opt-in means to be elected to become a NOX Budget unit 
under the NOX Budget Trading Program through a final, 
effective NOX Budget opt-in permit under subpart I of this 
part.
    Overdraft account means the NOX Allowance Tracking System 
account, established by the Administrator under subpart F of this part, 
for each NOX Budget source where there 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 a 
NOX Budget unit or in a unit for which an application for a 
NOX Budget opt-in permit under Sec. 97.83 is submitted and 
not denied or withdrawn; or
    (2) Any holder of a leasehold interest in a NOX Budget 
unit or in a unit for which an application for a NOX Budget 
opt-in permit under Sec. 97.83 is submitted and not denied or 
withdrawn; or
    (3) Any purchaser of power from a NOX Budget unit or from 
a unit for which an application for a NOX Budget opt-in 
permit under Sec. 97.83 is submitted and not denied or withdrawn under 
a life-of-the-unit, firm power contractual arrangement. However, unless 
expressly provided for in a leasehold agreement, owner shall not include 
a passive lessor, or a person who has an equitable interest through such 
lessor, whose rental payments are not based, either directly or 
indirectly, upon the revenues or income from the NOX Budget 
unit or the unit for which an application for a NOX Budget 
opt-in permit under Sec. 97.83 is submitted and not denied or 
withdrawn; or
    (4) With respect to any general account, any person who has an 
ownership interest with respect to the NOX allowances held in 
the general account and who is subject to the binding agreement for the 
NOX authorized account representative to represent that 
person's ownership interest with respect to the NOX 
allowances.
    Percent monitor data availability means, for purposes of Sec. 97.43 
(a)(1) and Sec. 97.84(b), total unit operating hours for which quality-
assured data were recorded under subpart H of this part in a control 
period, divided by the total number of unit operating hours in the 
control period, and multiplied by 100 percent.
    Permitting authority means the State air pollution control agency, 
local

[[Page 864]]

agency, other State agency, or other agency authorized by the 
Administrator to issue or revise permits to meet the requirements of the 
NOX Budget Trading Program in accordance with subpart C of 
this part.
    Potential electrical output capacity means 33 percent of a unit's 
maximum design heat input.
    Receive or receipt of means, when referring to the permitting 
authority or the Administrator, to come into possession of a document, 
information, or correspondence (whether sent in writing or by authorized 
electronic transmission), as indicated in an official correspondence 
log, or by a notation made on the document, information, or 
correspondence, by the permitting authority or the Administrator in the 
regular course of business.
    Recordation, record, or recorded means, with regard to 
NOX allowances, the movement of NOX allowances by 
the Administrator from one NOX Allowance Tracking System 
account to another, for purposes of allocation, transfer, or deduction.
    Reference method means any direct test method of sampling and 
analyzing for an air pollutant as specified in appendix A of part 60 of 
this chapter.
    Serial number means, when referring to NOX allowances, 
the unique identification number assigned to each NOX 
allowance by the Administrator, under Sec. 97.53(c).
    Source means any governmental, institutional, commercial, or 
industrial structure, installation, plant, building, or facility that 
emits or has the potential to emit any regulated air pollutant under the 
Clean Air Act. For purposes of section 502(c) of the Clean Air Act, a 
``source,'' including a ``source'' with multiple units, shall be 
considered a single ``facility.''
    State means one of the 48 contiguous States or a portion thereof or 
the District of Columbia that is specified in Sec. 52.34 of this 
chapter and in which are located units for which the Administrator makes 
an effective finding under Sec. 52.34 of this chapter.
    Submit or serve means to send or transmit a document, information, 
or correspondence to the person specified in accordance with 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 be determined by the date of dispatch, transmission, or mailing 
and not the date of receipt.
    Title V operating permit means a permit issued under title V of the 
Clean Air Act and part 70 or part 71 of this chapter.
    Title V operating permit regulations means the regulations that the 
Administrator has approved or issued as meeting the requirements of 
title V of the Clean Air Act 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 the NOX Budget 
emissions limitation, total tons for a control period shall be 
calculated as the sum of all recorded hourly emissions (or the tonnage 
equivalent of the recorded hourly emissions rates) in accordance with 
subpart H of this part, with any remaining fraction of a ton equal to or 
greater than 0.50 ton deemed to equal one ton and any fraction of a ton 
less than 0.50 ton deemed to equal zero tons.
    Unit means a fossil fuel-fired stationary boiler, combustion 
turbine, or combined cycle system.
    Unit operating day means a calendar day in which a unit combusts any 
fuel.
    Unit operating hour or hour of unit operation means any hour (or 
fraction of an hour) during which a unit combusts any fuel.

[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 are 
defined 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.

[[Page 865]]

ton-2000 pounds.



Sec. 97.4  Applicability.

    (a) The following units in a State shall be a NOX Budget 
unit, and any source that includes one or more such units shall be a 
NOX Budget source, subject to the requirements of this part:
    (1)(i) For units other than cogeneration units--
    (A) For units commencing operation before January 1, 1997, a unit 
serving 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 to the 
electric grid.
    (B) For units commencing operation in 1997 or 1998, a unit serving 
during 1997 or 1998 a generator--
    (1) With a nameplate capacity greater than 25 MWe and
    (2) Producing electricity for sale under a firm contract to the 
electric grid.
    (C) For units commencing operation on or after January 1, 1999, a 
unit 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 unit 
serving during 1995 or 1996 a generator with a nameplate capacity 
greater than 25 MWe and failing to qualify as an unaffected unit under 
Sec. 72.6(b)(4) of this chapter for 1995 or 1996 under the Acid Rain 
Program.
    (B) For units commencing operation in 1997 or 1998, a unit serving 
during 1997 or 1998 a generator with a nameplate capacity grater than 25 
MWe and failing to qualify as an unaffected unit under Sec. 72.6(b)(4) 
of this chapter for 1997 or 1998 under the Acid Rain Program.
    (C) For units commencing operation on or after January 1, 1999, a 
unit serving at any time a generator with a nameplate capacity greater 
than 25 MWe and failing to qualify as an unaffected unit under Sec. 
72.6(b)(4) of this chapter under the Acid Rain Program for any year.
    (2)(i) For units other than cogeneration units--
    (A) For units commencing operation before January 1, 1997, a unit--
    (1) With a maximum design heat input greater than 250 mmBtu/hr and
    (2) Not serving during 1995 or 1996 a generator producing 
electricity 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 250 mmBtu/hr and
    (2) Not serving during 1997 or 1998 a generator producing 
electricity for sale under a firm contract to the electric grid.
    (C) For units commencing on or after January 1, 1999, a unit with a 
maximum design heat input greater than 250 mmBtu/hr:
    (1) At no time serving a generator producing electricity for sale; 
or
    (2) At any time serving a generator with a nameplate capacity of 25 
MWe or less producing electricity for sale and with the potential to use 
no more than 50 percent of the potential electrical output capacity of 
the unit.
    (ii) For cogeneration units--
    (A) For units commencing operation before January 1, 1997, a unit 
with a maximum design heat input greater than 250 mmBtu/hr and 
qualifying as an unaffected unit under Sec. 72.6(b)(4) of this chapter 
under the Acid Rain Program for 1995 and 1996.
    (B) For units commencing operation in 1997 or 1998, a unit with a 
maximum design heat input greater than 250 mmBtu/hr and qualifying as an 
unaffected unit under Sec. 72.6(b)(4) under the Acid Rain Program for 
1997 and 1998.
    (C) For units commencing on or after January 1, 1999, a unit with a 
maximum design heat input greater than 250 mmBtu/hr and qualifying as an 
unaffected unit under Sec. 72.6(b)(4) of this chapter under the Acid 
Rain Program for each year.
    (b)(1) Notwithstanding paragraph (a) of this section, a unit under 
paragraph (a)(1) or (a)(2) of this section that has a federally 
enforceable permit that restricts the unit to combusting only natural 
gas or fuel oil (as defined in Sec. 75.2 of this chapter) during a 
control period includes a NOX emission limitation restricting 
NOX emissions during a

[[Page 866]]

control period to 25 tons or less, and includes the special provisions 
in paragraph (b)(4) of this section shall be exempt from the 
requirements of the NOX Budget Trading Program, except for 
the provisions of this paragraph (b), Sec. 97.2, Sec. 97.3, Sec. 
97.4(a), Sec. 97.7, and subparts E, F, and G of this part. The 
NOX emission limitation under this paragraph (b)(1) shall 
restrict NOX emissions during the control period by limiting 
unit operating hours. The restriction on unit operating hours shall be 
calculated by dividing 25 tons by the unit's maximum potential hourly 
NOX mass emissions, which shall equal the unit's maximum 
rated hourly heat input multiplied by the highest default NOX 
emission rate otherwise applicable to the unit under Sec. 75.19 of this 
chapter.
    (2) The exemption under paragraph (b)(1) of this section shall 
become effective as follows:
    (i) The exemption shall become effective on the date on which the 
NOX emission limitation and the special provisions in the 
permit under paragraph (b)(1) of this section become final; or
    (ii) If the NOX emission limitation and the special 
provisions in the permit under paragraph (b)(1) of this section become 
final during a control period and after the first date on which the unit 
operates during such control period, then the exemption shall become 
effective on May 1 of such control period, provided that such 
NOX emission limitation and the special provisions apply to 
the unit as of such first date of operation. If such NOX 
emission limitation and special provisions do not apply to the unit as 
of such first date of operation, then the exemption under paragraph 
(b)(1) of this section shall become effective on October 1 of the year 
during which such NOX emission limitation and the special 
provisions become final.
    (3) The permitting authority that issues a federally enforceable 
permit under paragraph (b)(1) of this section for a unit under paragraph 
(a)(1) or (a)(2) of this section will provide the Administrator written 
notice of the issuance of such permit and, upon request, 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 use and unit 
operating hours described in paragraph (b)(1) of this section during the 
control period in each year.
    (ii) The Administrator will allocate NOX allowances to 
the unit under Sec. Sec. 97.41(a) through (c) and 97.42(a) through (c). 
For each control period for which the unit is allocated NOX 
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 general 
account, in which the Administrator will record the NOX 
allowances; and
    (B) After the Administrator records a NOX allowance 
allocations under Sec. Sec. 97.41(a) through (c) and 97.42(a) through 
(c), the Administrator will deduct, from the general account under 
paragraph (b)(4)(ii)(A) of this section, NOX allowances that 
are allocated for the same or a prior control period as the 
NOX allowances allocated to the unit under Sec. Sec. 
97.41(a) through (c) and 97.42(a) through (c) and that equal the 
NOX emission limitation (in tons of NOX) on which 
the unit's exemption under paragraph (b)(1) of this section is based. 
The NOX authorized account representative shall ensure that 
such general account contains the NOX allowances necessary 
for completion of such deduction.
    (iii) A unit exempt under this paragraph (b) shall report hours of 
unit operation during the control period in each year to the permitting 
authority by November 1 of that year.
    (iv) For a period of 5 years from the date the records are created, 
the owners and operators of a unit exempt under paragraph (b)(1) of this 
section shall retain, at the source that includes the unit, records 
demonstrating that the conditions of the federally enforceable 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 time prior to the end 
of the period, in writing by the permitting authority or the 
Administrator. The owners and operators bear the burden of proof that 
the unit met the restriction on fuel use or unit operating hours.

[[Page 867]]

    (v) The owners and operators and, to the extent applicable, the 
NOX authorized account representative of a unit exempt under 
paragraph (b)(1) of this section shall comply with the requirements of 
the NOX Budget Trading Program concerning all periods for 
which the exemption is not in effect, even if such requirements arise, 
or must be complied with, after the exemption takes effect.
    (vi) On the earlier of the following dates, a unit exempt under 
paragraph (b)(1) of this section shall lose its exemption:
    (A) The date on which the restriction on fuel use or unit operating 
hours described in paragraph (b)(1) of this section is removed from the 
unit's federally enforceable permit or otherwise becomes no longer 
applicable to any control period starting in 2004; or
    (B) The first date on which the unit fails to comply, or with regard 
to which the owners and operators fail to meet their burden of proving 
that the unit is complying, with the restriction on fuel use or unit 
operating hours described in paragraph (b)(1) of this section during 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 of this 
part. For the purpose of applying permitting requirements under subpart 
C of this part, allocating allowances under subpart E of this part, and 
applying monitoring requirements under subpart H of this part, the unit 
shall be treated as commencing operation and, if the unit is covered by 
paragraph (a)(1) of this section, commencing commercial operation on the 
date the unit loses its exemption.
    (viii) A unit that is exempt under paragraph (b)(1) of this section 
is not eligible to be a 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 21645, Apr. 21, 2004]



Sec. 97.5  Retired unit exemption.

    (a) This section applies to any NOX Budget unit, other 
than a NOX Budget opt-in unit, that is permanently retired.
    (b)(1) Any NOX Budget unit, other than a NOX 
Budget opt-in unit, that is permanently retired shall be exempt from the 
NOX Budget Trading Program, except for the provisions of this 
section, Sec. 97.2, Sec. 97.3, Sec. 97.4, Sec. 97.7, and subparts E, 
F, and G of this part.
    (2) The exemption under paragraph (b)(1) of this section shall 
become effective the day on which the unit is permanently retired. 
Within 30 days of permanent retirement, the NOX authorized 
account representative (authorized in accordance with subpart B of this 
part) shall submit a statement to the permitting authority otherwise 
responsible for administering any NOX Budget permit for the 
unit. The NOX authorized account representative shall submit 
a copy of the statement to the Administrator. The statement shall state, 
in a format prescribed by the permitting authority, that the unit is 
permanently retired and will comply with the requirements of paragraph 
(c) of this section.
    (3) After receipt of the notice under paragraph (b)(2) of this 
section, the permitting authority will amend any permit covering the 
source at which the unit is located to add the provisions and 
requirements of the exemption under paragraphs (b)(1) and (c) of this 
section.
    (c) Special provisions. (1) A unit exempt under this section shall 
not emit any nitrogen oxides, starting on the date that the exemption 
takes effect.
    (2) The Administrator will allocate NOX allowances under 
subpart E of this part to a unit exempt under this section. For each 
control period for which the unit is allocated one or more 
NOX allowances, the owners and operators of the unit shall 
specify a general account, in which the Administrator will record such 
NOX 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 shall 
retain at the source that includes the unit, records demonstrating that 
the unit is permanently retired. The 5-year period for keeping records 
may be extended for cause, at any time prior to the end of the period, 
in writing by the permitting authority or the Administrator.

[[Page 868]]

The owners and operators bear the burden of proof that the unit is 
permanently retired.
    (4) The owners and operators and, to the extent applicable, the 
NOX authorized account representative of a unit exempt under 
this section shall comply with the requirements of the NOX 
Budget Trading Program concerning all periods for which 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 source that 
is required, or but for this exemption would be required, to have a 
title V operating permit shall not resume operation unless the 
NOX authorized account representative of the source submits a 
complete NOX Budget permit application under Sec. 97.22 for 
the unit not less than 18 months (or such lesser time provided by the 
permitting authority) before the later of May 31, 2004 or the date on 
which the unit resumes operation.
    (ii) A unit exempt under this section and located at a source that 
is required, or but for this exemption would be required, to have a non-
title V permit shall not resume operation unless the NOX 
authorized account representative of the source submits a complete 
NOX Budget permit application under Sec. 97.22 for the unit 
not less than 18 months (or such lesser time provided by the permitting 
authority) before the later of May 31, 2004 or the date on which the 
unit is to first resume operation.
    (6) On the earlier of the following dates, a unit exempt under 
paragraph (b) of this section shall lose its exemption:
    (i) The date on which the NOX authorized account 
representative submits a NOX Budget permit application under 
paragraph (c)(5) of this section;
    (ii) The date on which the NOX authorized account 
representative is required under paragraph (c)(5) of this section to 
submit a NOX Budget permit application; or
    (iii) The date on which the unit resumes operation, if the unit is 
not required to submit a NOX permit application.
    (7) For the purpose of applying monitoring requirements under 
subpart H of this part, a unit that loses its exemption under this 
section shall be treated as a unit that commences operation or 
commercial operation on the first date on which the unit resumes 
operation.
    (8) A unit that is exempt under this section is not eligible to be a 
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 authorized account 
representative of each NOX Budget source required to have a 
federally enforceable permit and each NOX Budget unit 
required to have a federally enforceable permit at the source shall:
    (i) Submit to the permitting authority a complete NOX 
Budget permit application under Sec. 97.22 in accordance with the 
deadlines specified in Sec. 97.21(b) and (c);
    (ii) Submit in a timely manner any supplemental information that the 
permitting authority determines is necessary in order to review a 
NOX Budget permit application and issue or deny a 
NOX Budget permit.
    (2) The owners and operators of each NOX Budget source 
required to have a federally enforceable permit and each NOX 
Budget unit required to have a federally enforceable permit at the 
source shall have a NOX Budget permit issued by the 
permitting authority and operate the unit in compliance with such 
NOX Budget permit.
    (3) The owners and operators of a NOX Budget source that 
is not otherwise required to have a federally enforceable permit are not 
required to submit a NOX Budget permit application, and to 
have a NOX Budget permit, under subpart C of this part for 
such NOX Budget source.
    (b) Monitoring requirements. (1) The owners and operators and, to 
the extent applicable, the NOX authorized account 
representative of each NOX Budget source and each 
NOX Budget unit at the source shall comply with the 
monitoring requirements of subpart H of this part.

[[Page 869]]

    (2) The emissions measurements recorded and reported in accordance 
with subpart H of this part shall be used to determine compliance by the 
unit with the NOX Budget emissions limitation under paragraph 
(c) of this section.
    (c) Nitrogen oxides requirements. (1) The owners and operators of 
each NOX Budget source and each NOX Budget unit at 
the source shall hold NOX allowances available for compliance 
deductions under Sec. 97.54(a), (b), (e), or (f) as of the 
NOX allowance transfer deadline, in the unit's compliance 
account and the source's overdraft account in an amount not less than 
the total NOX emissions for the control period from the unit, 
as determined in accordance with subpart H of this part, plus any amount 
necessary to account for actual heat input under Sec. 97.42(e) for the 
control period or to account for excess emissions for a prior control 
period under Sec. 97.54(d) or to account for withdrawal from the 
NOX Budget Trading Program, or a change in regulatory status, 
of a NOX Budget opt-in unit under Sec. 97.86 or Sec. 97.87.
    (2) Each ton of nitrogen oxides emitted in excess of the 
NOX Budget emissions limitation shall constitute a separate 
violation of this part, the Clean Air Act, and applicable State law.
    (3) A NOX Budget unit shall be subject to the 
requirements under paragraph (c)(1) of this section starting on the 
later of May 31, 2004 or the date on which the unit commences operation.
    (4) NOX allowances shall be held in, deducted from, or 
transferred among NOX Allowance Tracking System accounts in 
accordance with subparts E, F, G, and I of this part.
    (5) A NOX allowance shall not be deducted, in order to 
comply with the requirements under paragraph (c)(1) of this section, for 
a control period in a year prior to the year for which the 
NOX allowance was allocated.
    (6) A NOX allowance allocated by the Administrator under 
the NOX Budget Trading Program is a limited authorization to 
emit one ton of nitrogen oxides in accordance with the NOX 
Budget Trading Program. No provision of the NOX Budget 
Trading Program, the NOX Budget permit application, the 
NOX Budget permit, or an exemption under Sec. 97.4(b) or 
Sec. 97.5 and no provision of law shall be construed to limit the 
authority of the United States to terminate or limit such authorization.
    (7) A NOX allowance allocated by the Administrator under 
the NOX Budget Trading Program does not constitute a property 
right.
    (8) Upon recordation by the Administrator under subpart F or G of 
this part, every allocation, transfer, or deduction of a NOX 
allowance to or from a NOX Budget unit's compliance account 
or the overdraft account of the source where the unit is located is 
incorporated automatically in any NOX Budget permit of the 
NOX Budget unit.
    (d) Excess emissions requirements. (1) The owners and operators of a 
NOX Budget unit that has excess emissions in any control 
period shall:
    (i) Surrender the NOX allowances required for deduction 
under Sec. 97.54(d)(1); and
    (ii) Pay any fine, penalty, or assessment or comply with any other 
remedy imposed under Sec. 97.54(d)(3).
    (e) Recordkeeping and reporting requirements. (1) Unless otherwise 
provided, the owners and operators of the NOX Budget source 
and each NOX Budget unit at the source shall keep on site at 
the source each of the following documents for a period of 5 years from 
the date the document is created. This period may be extended for cause, 
at any time prior to the end of 5 years, in writing by the permitting 
authority or the Administrator.
    (i) The account certificate of representation under Sec. 97.13 for 
the NOX authorized account representative for the source and 
each NOX Budget unit at the source and all documents that 
demonstrate the truth of the statements in the account certificate of 
representation; provided that the certificate and documents shall be 
retained on site at the source beyond such 5-year period until such 
documents are superseded because of the submission of a new account 
certificate of representation under Sec. 97.13 changing the 
NOX authorized account representative.
    (ii) All emissions monitoring information, in accordance with 
subpart H of this part; provided that to the extent that subpart H of 
this part provides for a 3-year period for recordkeeping, the 3-year 
period shall apply.

[[Page 870]]

    (iii) Copies of all reports, compliance certifications, and other 
submissions and all records made or required under the NOX 
Budget Trading Program.
    (iv) Copies of all documents used to complete a NOX 
Budget permit application and any other submission under the 
NOX Budget Trading Program or to demonstrate compliance with 
the requirements of the NOX Budget Trading Program.
    (2) The NOX authorized account representative of a 
NOX Budget source and each NOX Budget unit at the 
source shall submit the reports and compliance certifications required 
under the NOX Budget Trading Program, including those under 
subpart D, H, or I of this part.
    (f) Liability. (1) Any person who knowingly violates any requirement 
or prohibition of the NOX Budget Trading Program, a 
NOX Budget permit, or an exemption under Sec. 97.4(b) or 
Sec. 97.5 shall be subject to enforcement pursuant to applicable State 
or Federal law.
    (2) Any person who knowingly makes a false material statement in any 
record, submission, or report under the NOX Budget Trading 
Program shall be subject to criminal enforcement pursuant to the 
applicable State or Federal law.
    (3) No permit revision shall excuse any violation of the 
requirements of the NOX Budget Trading Program that occurs 
prior to the date that the revision takes effect.
    (4) Each NOX Budget source and each NOX Budget 
unit shall meet the requirements of the NOX Budget Trading 
Program.
    (5) Any provision of the NOX Budget Trading Program that 
applies to a NOX Budget source or the NOX 
authorized account representative of a NOX Budget source 
shall also apply to the owners and operators of such source and of the 
NOX Budget units at the source.
    (6) Any provision of the NOX Budget Trading Program that 
applies to a NOX Budget unit or the NOX authorized 
account representative of a NOX budget unit shall also apply 
to the owners and operators of such unit. Except with regard to the 
requirements applicable to units with a common stack under subpart H of 
this part, the owners and operators and the NOX authorized 
account representative of one NOX Budget unit shall not be 
liable for any violation by any other NOX Budget unit of 
which they are not owners or operators or the NOX authorized 
account representative and that is located at a source of which they are 
not owners or operators or the NOX authorized account 
representative.
    (g) Effect on other authorities. No provision of the NOX 
Budget Trading Program, a NOX Budget permit application, a 
NOX Budget permit, or an exemption under Sec. 97.4(b) or 
Sec. 97.5 shall be construed as exempting or excluding the owners and 
operators and, to the extent applicable, the NOX authorized 
account representative of a NOX Budget source or 
NOX Budget unit from compliance with any other provision of 
the applicable, approved State implementation plan, a federally 
enforceable permit, or the Clean Air Act.

[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 the 
NOX Budget Trading Program, to begin on the occurrence of an 
act or event shall begin on the day the act or event occurs.
    (b) Unless otherwise stated, any time period scheduled, under the 
NOX Budget Trading Program, to begin before the occurrence of 
an act or event shall be computed so that the period ends the day before 
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 weekend or a 
State or Federal holiday, the time period shall be extended to the next 
business day.



   Subpart B_NOX Authorized Account Representative for NOX 
                             Budget Sources



Sec. 97.10  Authorization and responsibilities of NOX authorized account 

representative.

    (a) Except as provided under Sec. 97.11, each NOX Budget 
source, including all NOX Budget units at the source, shall 
have one and only one NOX authorized account representative, 
with regard to

[[Page 871]]

all matters under the NOX Budget Trading Program concerning 
the source or any NOX Budget unit at the source.
    (b) The NOX authorized account representative of the 
NOX Budget source shall be selected by an agreement binding 
on the owners and operators of the source and all NOX Budget 
units at the source.
    (c) Upon receipt by the Administrator of a complete account 
certificate of representation under Sec. 97.13, the NOX 
authorized account representative of the source shall represent and, by 
his or her representations, actions, inactions, or submissions, legally 
bind each owner and operator of the NOX Budget source 
represented and each NOX Budget unit at the source in all 
matters pertaining to the NOX Budget Trading Program, not 
withstanding any agreement between the NOX authorized account 
representative and such owners and operators. The owners and operators 
shall be bound by any decision or order issued to the NOX 
authorized account representative by the permitting authority, the 
Administrator, or a court regarding the source or unit.
    (d) No NOX Budget permit shall be issued, and no 
NOX Allowance Tracking System account shall be established 
for a NOX Budget unit at a source, until the Administrator 
has received a complete account certificate of representation under 
Sec. 97.13 for a NOX authorized account representative of 
the source and the NOX Budget units at the source.
    (e) (1) Each submission under the NOX Budget Trading 
Program shall be submitted, signed, and certified by the NOX 
authorized account representative for each NOX Budget source 
on behalf of which the submission is made. Each such submission shall 
include the following certification statement by the NOX 
authorized account representative: ``I am authorized to make this 
submission on behalf of the owners and operators of the NOX 
Budget sources or NOX Budget units for which the submission 
is made. I certify under penalty of law that I have personally examined, 
and am familiar with, the statements and information submitted in this 
document and all its attachments. Based on my inquiry of those 
individuals with primary responsibility for obtaining the information, I 
certify that the statements and information are to the best of my 
knowledge and belief true, accurate, and complete. I am aware that there 
are significant penalties for submitting false statements and 
information or omitting required statements and information, including 
the possibility of fine or imprisonment.''
    (2) The permitting authority and the Administrator will accept or 
act on a submission made on behalf of owner or operators of a 
NOX Budget source or a NOX Budget unit only if the 
submission has been made, signed, and certified in accordance with 
paragraph (e)(1) of this section.



Sec. 97.11  Alternate NOX authorized account representative.

    (a) An account certificate of representation may designate one and 
only one alternate NOX authorized account representative who 
may act on behalf of the NOX authorized account 
representative. The agreement by which the alternate NOX 
authorized account representative is selected shall include a procedure 
for authorizing the alternate NOX authorized account 
representative to act in lieu of the NOX authorized account 
representative.
    (b) Upon receipt by the Administrator of a complete account 
certificate of representation under Sec. 97.13, any representation, 
action, inaction, or submission by the alternate NOX 
authorized account representative shall be deemed to be a 
representation, action, inaction, or submission by the NOX 
authorized account representative.
    (c) Except in this section and Sec. Sec. 97.10(a), 97.12, 97.13, 
and 97.51, whenever the term ``NOX authorized account 
representative'' is used in this part, the term shall be construed to 
include the alternate NOX authorized account representative.



Sec. 97.12  Changing NOX authorized account representative and alternate NOX 

authorized account representative; changes in owners and operators.

    (a) Changing NOX authorized account representative. The 
NOX authorized account representative may be changed

[[Page 872]]

at any time upon receipt by the Administrator of a superseding complete 
account certificate of representation under Sec. 97.13. Notwithstanding 
any such change, all representations, actions, inactions, and 
submissions by the previous NOX authorized account 
representative prior to the time and date when the Administrator 
receives the superseding account certificate of representation shall be 
binding on the new NOX authorized account representative and 
the owners and operators of the NOX Budget source and the 
NOX Budget units at the source.
    (b) Changing alternate NOX authorized account 
representative. The alternate NOX authorized account 
representative may be changed at any time upon receipt by the 
Administrator of a superseding complete account certificate of 
representation under Sec. 97.13. Notwithstanding any such change, all 
representations, actions, inactions, and submissions by the previous 
alternate NOX authorized account representative prior to the 
time and date when the Administrator receives the superseding account 
certificate of representation shall be binding on the new alternate 
NOX authorized account representative and the owners and 
operators of the NOX Budget source and the NOX 
Budget units at the source.
    (c) Changes in owners and operators. (1) In the event a new owner or 
operator of a NOX Budget source or a NOX Budget 
unit is not included in the list of owners and operators submitted in 
the account certificate of representation under Sec. 97.13, such new 
owner or operator shall be deemed to be subject to and bound by the 
account certificate of representation, the representations, actions, 
inactions, and submissions of the NOX authorized account 
representative and any alternate NOX authorized account 
representative of the source or unit, and the decisions, orders, 
actions, and inactions of the permitting authority or the Administrator, 
as if the new owner or operator were included in such list.
    (2) Within 30 days following any change in the owners and operators 
of a NOX Budget source or a NOX Budget unit, 
including the addition of a new owner or operator, the NOX 
authorized account representative or alternate NOX authorized 
account representative shall submit a revision to the account 
certificate of representation under Sec. 97.13 amending the list of 
owners and operators to include the change.



Sec. 97.13  Account certificate of representation.

    (a) A complete account certificate of representation for a 
NOX authorized account representative or an alternate 
NOX authorized account representative shall include the 
following elements in a format prescribed by the Administrator:
    (1) Identification of the NOX Budget source and each 
NOX Budget unit at the source for which the account 
certificate of representation is submitted.
    (2) The name, address, e-mail address (if any), telephone number, 
and facsimile transmission number (if any) of the NOX 
authorized account representative and any alternate NOX 
authorized account representative.
    (3) A list of the owners and operators of the NOX Budget 
source and of each NOX Budget unit at the source.
    (4) The following certification statement by the NOX 
authorized account representative and any alternate NOX 
authorized account representative: ``I certify that I was selected as 
the NOX authorized account representative or alternate 
NOX authorized account representative, as applicable, by an 
agreement binding on the owners and operators of the NOX 
Budget source and each NOX Budget unit at the source. I 
certify that I have all the necessary authority to carry out my duties 
and responsibilities under the NOX Budget Trading Program on 
behalf of the owners and operators of the NOX Budget source 
and of each NOX Budget unit at the source and that each such 
owner and operator shall be fully bound by my representations, actions, 
inactions, or submissions and by any decision or order issued to me by 
the permitting authority, the Administrator, or a court regarding the 
source or unit.''
    (5) The signature of the NOX authorized account 
representative and any alternate NOX authorized account 
representative and the dates signed.

[[Page 873]]

    (b) Unless otherwise required by the permitting authority or the 
Administrator, documents of agreement referred to in the account 
certificate of representation shall not be submitted to the permitting 
authority or the Administrator. Neither the permitting authority nor the 
Administrator shall be under any obligation to review or evaluate the 
sufficiency of such documents, if submitted.



Sec. 97.14  Objections concerning NOX authorized account representative.

    (a) Once a complete account certificate of representation under 
Sec. 97.13 has been submitted and received, the permitting authority 
and the Administrator will rely on the account certificate of 
representation unless and until a superseding complete account 
certificate of representation under Sec. 97.13 is received by the 
Administrator.
    (b) Except as provided in Sec. 97.12 (a) or (b), no objection or 
other communication submitted to the permitting authority or the 
Administrator concerning the authorization, or any representation, 
action, inaction, or submission of the NOX authorized account 
representative shall affect any representation, action, inaction, or 
submission of the NOX authorized account representative or 
the finality of any decision or order by the permitting authority or the 
Administrator under the NOX Budget Trading Program.
    (c) Neither the permitting authority nor the Administrator will 
adjudicate any private legal dispute concerning the authorization or any 
representation, action, inaction, or submission of any NOX 
authorized account representative, including private legal disputes 
concerning the proceeds of NOX allowance transfers.



                            Subpart C_Permits



Sec. 97.20  General NOX Budget Trading Program permit requirements.

    (a) For each NOX Budget source required to have a 
federally enforceable permit, such permit shall include a NOX 
Budget permit administered by the permitting authority for the federally 
enforceable permit.
    (1) For NOX Budget sources required to have a title V 
operating permit, the NOX Budget portion of the title V 
permit shall be administered in accordance with the permitting 
authority's title V operating permits regulations promulgated under part 
70 or 71 of this chapter, except as provided otherwise by this subpart 
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 V permit 
shall be administered in accordance with the permitting authority's 
regulations promulgated to administer non-title V permits, except as 
provided otherwise by this subpart or subpart I of this part.
    (b) Each NOX Budget permit shall contain all applicable 
NOX Budget Trading Program requirements and shall be a 
complete and segregable portion of the permit under paragraph (a) of 
this section.



Sec. 97.21  Submission of NOX Budget permit applications.

    (a) Duty to apply. The NOX authorized account 
representative of any NOX Budget source required to have a 
federally enforceable permit shall submit to the permitting authority a 
complete NOX Budget permit application under Sec. 97.22 by 
the applicable deadline in paragraph (b) of this section.
    (b)(1) For NOX Budget sources required to have a title V 
operating permit:
    (i) For any source, with one or more NOX Budget units 
under Sec. 97.4(a) that commence operation before January 1, 2001, the 
NOX authorized account representative shall submit a complete 
NOX Budget permit application under Sec. 97.22 covering such 
NOX Budget units to the permitting authority at least 18 
months (or such lesser time provided by the permitting authority) before 
May 31, 2004.
    (ii) For any source, with any NOX Budget unit under Sec. 
97.4(a) that commences operation on or after January 1, 2001, the 
NOX authorized account representative shall submit a complete 
NOX Budget permit application under Sec. 97.22 covering such 
NOX Budget unit to the permitting authority at least 18 
months (or such lesser time provided by the permitting authority) before 
the later of May 31, 2004 or the date on

[[Page 874]]

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 units 
under Sec. 97.4(a) that commence operation before January 1, 2001, the 
NOX authorized account representative shall submit a complete 
NOX Budget permit application under Sec. 97.22 covering such 
NOX Budget units to the permitting authority at least 18 
months (or such lesser time provided by the permitting authority) before 
May 31, 2004.
    (ii) For any source, with any NOX Budget unit under Sec. 
97.4(a) that commences operation on or after January 1, 2001, the 
NOX authorized account representative shall submit a complete 
NOX Budget permit application under Sec. 97.22 covering such 
NOX Budget unit to the permitting authority at least 18 
months (or such lesser time provided by the permitting authority) before 
the later of May 31, 2004 or the date on which the NOX Budget 
unit commences operation.
    (c) Duty to reapply. (1) For a NOX Budget source required 
to have a title V operating permit, the NOX authorized 
account representative shall submit a complete NOX Budget 
permit application under Sec. 97.22 for the NOX Budget 
source covering the NOX Budget units at the source in 
accordance with the permitting authority's title V operating permits 
regulations addressing operating permit renewal.
    (2) For a NOX Budget source required to have a non-title 
V permit, the NOX authorized account representative shall 
submit a complete NOX Budget permit application under Sec. 
97.22 for the NOX Budget source covering the NOX 
Budget units at the source in accordance with the permitting authority's 
non-title V permits regulations addressing 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 permit applications.

    A complete NOX Budget permit application shall include 
the following elements concerning the NOX Budget source for 
which the application is submitted, in a format prescribed by the 
permitting authority:
    (a) Identification of the NOX Budget source, including 
plant name and the ORIS (Office of Regulatory Information Systems) or 
facility code assigned to the source by the Energy Information 
Administration, if applicable;
    (b) Identification of each NOX Budget unit at the 
NOX Budget source and whether it is a NOX Budget 
unit under Sec. 97.4(a) or under subpart I of this part;
    (c) The standard requirements under Sec. 97.6; and
    (d) For each NOX Budget opt-in unit at the NOX 
Budget source, the following certification statements by the 
NOX authorized account representative:
    (1) ``I certify that each unit for which this permit application is 
submitted under subpart I of this part is not a NOX Budget 
unit under 40 CFR 97.4(a) and is not covered by an exemption under 40 
CFR 97.4(b) or 97.5 that is in effect.''
    (2) If the application is for an initial NOX Budget opt-
in permit, ``I certify that each unit for which this permit application 
is submitted under subpart I of 40 CFR part 97 is operating, 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 format 
prescribed by the permitting authority, all elements required for a 
complete NOX Budget permit application under Sec. 97.22.
    (b) Each NOX Budget permit is deemed to incorporate 
automatically the definitions of terms under Sec. 97.2 and, upon 
recordation by the Administrator under subpart F or G of this part, 
every allocation, transfer, or deduction of a NOX allowance 
to or from the compliance accounts of the NOX Budget units 
covered by the permit or the overdraft account of the NOX 
Budget source covered by the permit.



Sec. 97.24  NOX Budget permit revisions.

    (a) For a NOX Budget source with a title V operating 
permit, except as provided in Sec. 97.23(b), the permitting authority 
will revise the NOX Budget permit, as necessary, in 
accordance with the permitting authority's title V operating permits 
regulations addressing permit revisions.

[[Page 875]]

    (b) For a NOX Budget source with a non-title V permit, 
except as provided in Sec. 97.23(b), the permitting authority will 
revise the NOX Budget permit, as necessary, in accordance 
with the permitting authority's non-title V permits regulations 
addressing permit revisions.



                   Subpart D_Compliance Certification



Sec. 97.30  Compliance certification report.

    (a) Applicability and deadline. For each control period in which one 
or more NOX Budget units at a source are subject to the 
NOX Budget emissions limitation, the NOX 
authorized account representative of the source shall submit to the 
permitting authority and the Administrator by November 30 of that year, 
a compliance certification report for each source covering all such 
units.
    (b) Contents of report. The NOX authorized account 
representative shall include in the compliance certification report 
under paragraph (a) of this section the following elements, in a format 
prescribed by the Administrator, concerning each unit at the source and 
subject to the NOX Budget emissions limitation for the 
control period covered by the report:
    (1) Identification of each NOX Budget unit;
    (2) At the NOX authorized account representative's 
option, the serial numbers of the NOX allowances that are to 
be deducted from each unit's compliance account under Sec. 97.54 for 
the control period;
    (3) At the NOX authorized account representative's 
option, for units sharing a common stack and having NOX 
emissions that are not monitored separately or apportioned in accordance 
with subpart H of this part, the percentage of allowances that is to be 
deducted from each unit's compliance account under Sec. 97.54(e); and
    (4) The compliance certification under paragraph (c) of this 
section.
    (c) Compliance certification. In the compliance certification report 
under paragraph (a) of this section, the NOX authorized 
account representative shall certify, based on reasonable inquiry of 
those persons with primary responsibility for operating the source and 
the NOX Budget units at the source in compliance with the 
NOX Budget Trading Program, whether each NOX 
Budget unit for which the compliance certification is submitted was 
operated during the calendar year covered by the report in compliance 
with the requirements of the NOX Budget Trading Program 
applicable to the unit, including:
    (1) Whether the unit was operated in compliance with the 
NOX Budget emissions limitation;
    (2) Whether the monitoring plan that governs the unit has been 
maintained to reflect the actual operation and monitoring of the unit 
and contains all information necessary to attribute NOX 
emissions to the unit, in accordance with subpart H of this part;
    (3) Whether all the NOX emissions from the unit, or a 
group of units (including the unit) using a common stack, were monitored 
or accounted for through the missing data procedures and reported in the 
quarterly monitoring reports, including whether conditional data were 
reported in the quarterly reports in accordance with subpart H of this 
part. If conditional data were reported, the owner or operator shall 
indicate whether the status of all conditional data has been resolved 
and all necessary quarterly report resubmissions have been made;
    (4) Whether the facts that form the basis for certification under 
subpart 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 excepted 
monitoring method or alternative monitoring method approved under 
subpart 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 the 
change, when the change occurred, and how the unit's compliance status 
was determined subsequent to the change, including what method was used 
to determine emissions when a change mandated the need for monitor 
recertification.

[[Page 876]]



Sec. 97.31  Administrator's action on compliance certifications.

    (a) The Administrator may review and conduct independent audits 
concerning any compliance certification or any other submission under 
the NOX Budget Trading Program and make appropriate 
adjustments of the information in the compliance certifications or other 
submissions.
    (b) The Administrator may deduct NOX allowances from or 
transfer NOX allowances to a unit's compliance account or a 
source's overdraft account based on the information in the compliance 
certifications or other submissions, as adjusted under paragraph (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, the Administrator 
will allocate to the NOX Budget units under Sec. 97.4(a) in 
a State, for each control period specified in Sec. 97.41, a total 
number of NOX allowances equal to the trading budget for the 
State, as set forth in appendix C of this part, less the sum of the 
NOX emission limitations (in tons) for each unit exempt under 
Sec. 97.4(b) that is not allocated any NOX allowances under 
Sec. 97.42 (b) or (c) for the control period and whose NOX 
emission limitation (in tons of NOX) is not 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 in 
accordance with Sec. Sec. 97.42(a) through (c), for the control periods 
in 2004 through 2007 are set forth in appendices A and B of this part.
    (b) By April 1, 2005, the Administrator will determine by order the 
NOX allowance allocations, in accordance with Sec. Sec. 
97.42 (a) through (c), for the control periods in 2008 through 2012.
    (c) By April 1, 2010, by April 1 of 2015, and thereafter by April 1 
of the year that is 5 years after the last year for which NOX 
allowances allocations are determined, the Administrator will determine 
by order the NOX allowance allocations, in accordance with 
Sec. Sec. 97.42(a) through (c), for the control periods in the years 
that are 3, 4, 5, 6, and 7 years after the applicable deadline under 
this paragraph (c).
    (d) By April 1, 2004 and April 1 of each year thereafter, the 
Administrator will determine by order the NOX allowance 
allocations, in accordance with Sec. 97.42(d), for the control period 
in the year of the applicable deadline under this paragraph (d).
    (e) The Administrator will make available to the public each 
determination of NOX allowance allocations under paragraph 
(b), (c), or (d) of this section and will provide an opportunity for 
submission of objections to the determination. Objections shall be 
limited to addressing whether the determination is in accordance with 
Sec. 97.42. Based on any such objections, the Administrator will adjust 
each determination to the extent necessary to ensure that it 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 calculating NOX 
allowance allocations for each NOX Budget unit under Sec. 
97.4(a) will be:
    (i) For a NOX allowance allocation under Sec. 97.41(a):
    (A) For a unit under Sec. 97.4(a)(1), the average of the two 
highest amounts of the unit's heat input for the control periods in 1995 
through 1998; or
    (B) For a unit under Sec. 97.4(a)(2), the control period in 1995 
or, if the Administrator determines that reasonably reliable data are 
available for control periods in 1996 through 1998, the average of the 
two highest amounts of the unit's heat input for the control periods in 
1995 through 1998.
    (ii) For a NOX allowance allocation under Sec. 97.41(b), 
the unit's average heat input for the control periods in 2002 through 
2004.
    (iii) For a NOX allowance allocation under Sec. 
97.41(c), the unit's average heat input for the control period in the

[[Page 877]]

years that are 4, 5, 6, 7, and 8 years before the first year for which 
the allocation is being calculated.
    (2) The unit's heat input for the control period in each year 
specified under paragraph (a)(1) of this section will be determined in 
accordance with part 75 of this chapter. Notwithstanding the first 
sentence of this paragraph (a)(2):
    (i) For a NOX allowance allocation under Sec. 97.41(a), 
such heat input will be determined using the best available data 
reported to the Administrator for the unit if the unit was not otherwise 
subject to the requirements of part 75 of this chapter for the control 
period.
    (ii) For a NOX allowance allocation under Sec. 97.41(b) 
or (c) for a unit exempt under Sec. 97.4(b), such heat input shall be 
treated as zero if the unit is exempt under Sec. 97.4(b) during the 
control period.
    (b) For each group of control periods specified in Sec. 97.41(a) 
through (c), the Administrator will allocate to all NOX 
Budget units in a given State under Sec. 97.4(a)(1) that commenced 
operation before May 1, 1997 for allocations under Sec. 97.41(a), May 
1, 2003 for allocations under Sec. 97.41(b), and May 1 of the year 5 
years before the first year for which the allocation under Sec. 
97.41(c) is being calculated, a total number of NOX 
allowances equal to 95 percent of the portion of the State's trading 
program budget under Sec. 97.40 covering such units. The Administrator 
will allocate in accordance with the following procedures:
    (1) The Administrator will allocate NOX allowances to 
each NOX Budget unit under Sec. 97.4(a)(1) for each control 
period in an amount equaling 0.15 lb/mmBtu multiplied by the heat input 
determined under paragraph (a) of this section, divided by 2,000 lb/ton, 
and rounded to the nearest whole number of NOX allowances as 
appropriate.
    (2) If the initial total number of NOX allowances 
allocated to all NOX Budget units under Sec. 97.4(a)(1) in 
the State for a control period under paragraph (b)(1) of this section 
does not equal 95 percent of the portion of the State's trading program 
budget under Sec. 97.40 covering such units, the Administrator will 
adjust the total number of NOX allowances allocated to all 
such NOX Budget units for the control period under paragraph 
(b)(1) of this section so that the total number of NOX 
allowances allocated equals 95 percent of such portion of the State's 
trading program budget. This adjustment will be made by: multiplying 
each unit's allocation by 95 percent of such portion of the State's 
trading program budget; dividing by the total number of NOX 
allowances allocated under paragraph (b)(1) of this section for the 
control period; and rounding to the nearest whole number of 
NOX allowances as appropriate.
    (c) For each group of control periods specified in Sec. 97.41(a) 
through (c), the Administrator will allocate to all NOX 
Budget units in a given State under Sec. 97.4(a)(2) that commenced 
operation before May 1, 1997 for allocations under Sec. 97.41(a), May 
1, 2003 for allocations under Sec. 97.41(b), and May 1 of the year 5 
years before the first year for which the allocation under Sec. 
97.41(c) is being calculated, a total number of NOX 
allowances equal to 95 percent of the portion of the State's trading 
program budget under Sec. 97.40 covering such units. The Administrator 
will allocate in accordance with the following procedures:
    (1) The Administrator will allocate NOX allowances to 
each NOX Budget unit under Sec. 97.4(a)(2) for each control 
period in an amount equaling 0.17 lb/mmBtu multiplied by the heat input 
determined under paragraph (a) of this section, divided by 2,000 lb/ton, 
and rounded to the nearest whole number of NOX allowances as 
appropriate.
    (2) If the initial total number of NOX allowances 
allocated to all NOX Budget units under Sec. 97.4(a)(2) in 
the State for a control period under paragraph (c)(1) of this section 
does not equal 95 percent of the portion of the State's trading program 
budget under Sec. 97.40 covering such units, the Administrator will 
adjust the total number of NOX allowances allocated to all 
such NOX Budget units for the control period under paragraph 
(a)(1) of this section so that the total number of NOX 
allowances allocated equals 95 percent of the portion of the State's 
trading program budget under Sec. 97.40 covering such units. This 
adjustment will be made by: multiplying each unit's allocation by 95 
percent of the portion of the

[[Page 878]]

State's trading program budget under Sec. 97.40 covering such units; 
dividing by the total number of NOX allowances allocated 
under paragraph (c)(1) of this section for the control period; and 
rounding to the nearest whole number of NOX allowances as 
appropriate.
    (d) For each control period specified in Sec. 97.41(d), the 
Administrator will allocate NOX allowances to NOX 
Budget units in a given State under Sec. 97.4(a) (except for units 
exempt under Sec. 97.4(b)) that commence operation, or are projected to 
commence operation, on or after: May 1, 1997 (for control periods under 
Sec. 97.41(a)); May 1, 2003, (for control periods under Sec. 
97.41(b)); and May 1 of the year 5 years before the beginning of the 
group of 5 years that includes the control period (for control periods 
under Sec. 97.41(c)). The Administrator will make the allocations under 
this paragraph (d) in accordance with the following procedures:
    (1) The Administrator will establish one allocation set-aside for 
each control period. Each allocation set-aside will be allocated 
NOX allowances equal to 5 percent of the tons of 
NOX emission in the State's trading program budget under 
Sec. 97.40, rounded to the nearest whole number of NOX 
allowances as appropriate.
    (2) The NOX authorized account representative of a 
NOX Budget unit specified in this paragraph (d) may submit to 
the Administrator a request, in a format specified by the Administrator, 
to be allocated NOX allowances for the control period. The 
NOX allowance allocation request must be received by the 
Administrator on or after the date on which the State permitting 
authority issues a permit to construct the unit and by January 1 before 
the control period for which NOX allowances are requested.
    (3) In a NOX allowance allocation request under paragraph 
(d)(2) of this section, the NOX authorized account 
representative for a NOX Budget unit under Sec. 97.4(a)(1) 
may request for the control period NOX allowances in an 
amount that does not exceed the lesser of:
    (i) 0.15 lb/mmBtu multiplied by the unit's maximum design heat 
input, multiplied by the lesser of 3,672 hours or the number of hours 
remaining in the control period starting with the day in the control 
period on which the unit commences operation or is projected to commence 
operation, divided by 2,000 lb/ton, and rounded to the nearest whole 
number of NOX allowances as appropriate; or
    (ii) The unit's most stringent State or Federal NOX 
emission limitation multiplied by the unit's maximum design heat input, 
multiplied by the lesser of 3,672 hours or the number of hours remaining 
in the control period starting with the day in the control period on 
which the unit commences operation or is projected to commence 
operation, divided by 2,000 lb/ton, and rounded to the nearest whole 
number of NOX allowances as appropriate.
    (4) In a NOX allowance allocation request under paragraph 
(d)(2) of this section, the NOX authorized account 
representative for a NOX Budget unit under Sec. 97.4(a)(2) 
may request for the control period NOX allowances in an 
amount that does not exceed the lesser of:
    (i) 0.17 lb/mmBtu multiplied by the unit's maximum design heat 
input, multiplied by the lesser of 3,672 hours or the number of hours 
remaining in the control period starting with the day in the control 
period on which the unit commences operation or is projected to commence 
operation, divided by 2,000 lb/ton, and rounded to the nearest whole 
number of NOX allowances as appropriate; or
    (ii) The unit's most stringent State or Federal NOX 
emission limitation multiplied by the unit's maximum design heat input, 
multiplied by the lesser of 3,672 hours or the number of hours remaining 
in the control period starting with the day in the control period on 
which the unit commences operation or is projected to commence 
operation, divided by 2,000 lb/ton, and rounded to the nearest whole 
number of NOX allowances as appropriate.
    (5) The Administrator will review each NOX allowance 
allocation request submitted in accordance with paragraph (d)(2) of this 
section and will allocate NOX allowances pursuant to such 
request as follows:
    (i) Upon receipt of the NOX allowance allocation request, 
the Administrator will make any necessary adjustments

[[Page 879]]

to the request to ensure that the requirements of paragraphs (d) 
introductory text, (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 (as adjusted 
under paragraph (d)(5)(i) of this section) in all NOX 
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 State that commenced 
operation, or are projected to commence operation, on or after May 1, 
1997 (for control periods under Sec. 97.41(a)); May 1, 2003, (for 
control periods under Sec. 97.41(b)); and May 1 of the year 5 years 
before beginning of the group of 5 years that includes the control 
period (for control periods under Sec. 97.41(c)), the sum of the 
NOX emission limitations (in tons of NOX) on which 
each unit's exemption under Sec. 97.4(b) is based.
    (iii) If the number of NOX allowances in the allocation 
set-aside for the control period less the amount under paragraph 
(d)(5)(ii)(B) of this section is not less than the amount determined 
under paragraph (d)(5)(ii)(A) of this section, the Administrator will 
allocate the amount of the NOX allowances requested (as 
adjusted under paragraph (d)(5)(i) of this section) to the 
NOX Budget unit for which the allocation request was 
submitted.
    (iv) If the number of NOX allowances in the allocation 
set-aside for the control period less the amount under paragraph 
(d)(5)(ii)(B) of this section is less than the amount determined under 
paragraph (d)(5)(ii)(A) of this section, the Administrator will 
allocate, to the NOX Budget unit for which the allocation 
request was submitted, the amount of NOX allowances requested 
(as adjusted under paragraph (d)(5)(i) of this section) multiplied by 
the number of NOX allowances in the allocation set-aside for 
the control period less the amount determined under paragraph 
(d)(5)(ii)(B) of this section, divided by the amount determined under 
paragraph (d)(5)(ii)(A) of this section, and rounded to the nearest 
whole number of NOX allowances as appropriate.
    (e)(1) For a NOX Budget unit that is allocated 
NOX allowances under paragraph (d) of this section for a 
control period, the Administrator will deduct NOX allowances 
under Sec. 97.54(b), (e), or (f) to account for the actual heat input 
of the unit during the control period. The Administrator will calculate 
the number of NOX allowances to be deducted to account for 
the unit's actual heat input using the following formulas and rounding 
to the nearest whole number of NOX allowance as appropriate, 
provided that the number of NOX allowances to be deducted 
shall be zero if the number calculated is less than zero:

NOX allowances deducted for actual heat input for a unit 
    under Sec. 97.4(a)(1) = Unit's NOX allowances allocated 
    for control period-(Unit's actual control period heat inputx the 
    lesser of 0.15 lb/mmBtu the unit's most stringent State or Federal 
    emission limitation x 2,000 lb/ton); and NOX allowances 
    deducted for actual heat input for a unit under Sec. 97.4(a)(2) = 
    Unit's NOX allowances allocated for control period-
    (Unit's actual control period heat input x the lesser of 0.17 lb/
    mmBtu the unit's most stringent State or Federal emission limitation 
    x 2,000 lb/ton)

Where:

``Unit's NOX allowances allocated for control period'' is the 
number of NOX allowances allocated to the unit for the 
control period under paragraph (d) of this section; and
``Unit's actual control period heat input'' is the heat input (in mmBtu) 
of the unit during the control period.

    (2) The Administrator will transfer any NOX allowances 
deducted 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 under Sec. 97.54(b), 
(e), or (f) for a control period, the Administrator will determine 
whether any NOX allowances remain in the allocation set-aside 
for the control period. The Administrator will allocate any such 
NOX allowances to the NOX Budget units in the 
State using the following formula and rounding to the nearest whole 
number of NOX allowances as appropriate:

Unit's share of NOX allowances remaining in allocation set-
    aside = Total

[[Page 880]]

    NOX allowances remaining in allocation set-aside x 
    (Unit's NOX allowance allocation / State's trading 
    program budget excluding allocation set-aside)

Where:

``Total NOX allowances remaining in allocation set-aside'' is 
the total number of NOX allowances remaining in the 
allocation set-aside for the control period;
``Unit's NOX allowance allocation'' is the number of 
NOX allowances allocated under paragraph (b) or (c) of this 
section to the unit for the control period to which the allocation set-
aside applies; and
``State's trading program budget excluding allocation set-aside'' is the 
State's trading program budget under Sec. 97.40 for the control period 
to which the allocation set-aside applies multiplied by 95 percent, 
rounded to the nearest whole number of NOX allowances as 
appropriate.

    (g) If the Administrator determines that NOX allowances 
were allocated under paragraph (b), (c), or (d) of this section for a 
control period and the recipient of the allocation is not actually a 
NOX Budget unit under Sec. 97.4(a), the Administrator will 
notify the NOX authorized account representative and then 
will act in accordance with the following procedures:
    (1)(i) The Administrator will not record such NOX 
allowances for the control period in an account under Sec. 97.53;
    (ii) If the Administrator already recorded such NOX 
allowances for the control period in an account under Sec. 97.53 and if 
the Administrator makes such determination before making all deductions 
pursuant to Sec. 97.54 (except deductions pursuant to Sec. 
97.54(d)(2)) for the control period, then the Administrator will deduct 
from the account NOX allowances equal in number to and 
allocated for the same or a prior control period as the NOX 
allowances allocated to such recipient for the control period. The 
NOX authorized account representative shall ensure that the 
account contains the NOX allowances necessary for completion 
of such deduction. If account does not contain the necessary 
NOX allowances, the Administrator will deduct the required 
number of NOX allowances, regardless of the control period 
for which they were allocated, whenever NOX allowances are 
recorded in the account; or
    (iii) If the Administrator already recorded such NOX 
allowances for the control period in an account under Sec. 97.53 and if 
the Administrator makes such determination after making all deductions 
pursuant to Sec. 97.54 (except deductions pursuant to Sec. 
97.54(d)(2)) for the control period, then the Administrator will apply 
paragraph (g)(1)(ii) of this section to any subsequent control period 
for which NOX allowances were allocated to such recipient.
    (2) The Administrator will transfer the NOX allowances 
that are not recorded, or that are deducted, pursuant to paragraph 
(g)(1) of this section to an allocation set-aside for the State in which 
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 its 
NOX emission rate in the 2001 through 2003 control period, 
the owners and operators may request early reduction credits in 
accordance with the following requirements:
    (1) Each NOX Budget unit for which the owners and 
operators intend to request, or request, any early reduction credits in 
accordance with paragraph (a)(4) of this section shall monitor and 
report NOX emissions in accordance with subpart H of this 
part starting in the 2000 control period and for each control period for 
which such early reduction credits are requested. The unit's percent 
monitor data availability shall not be less than 90 percent during the 
2000 control period, and the unit must be in full compliance with any 
applicable State or Federal NOX emission 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 with 
subpart H of this part.
    (3) Each NOX Budget unit for which the owners and 
operators intend to request, or request, any early reduction credits 
under paragraph (a)(4) of this section shall reduce its NOX 
emission rate, for each control period for which early reduction credits 
are requested, to less than both 0.25 lb/mmBtu and 80

[[Page 881]]

percent of the unit's NOX emission rate in the 2000 control 
period.
    (4) The NOX authorized account representative of a 
NOX Budget unit that meets the requirements of paragraphs (a) 
(1) and (3) of this section may submit to the Administrator a request 
for early reduction credits for the unit based on NOX 
emission rate reductions made by the unit in the control period for 2001 
through 2003.
    (i) In the early reduction credit request, the NOX 
authorized account may request early reduction credits for such control 
period in an amount equal to the unit's heat input for such control 
period multiplied by the difference between 0.25 lb/mmBtu and the unit's 
NOX emission rate for such control period, divided by 2000 
lb/ton, and rounded to the nearest whole number of tons.
    (ii) The early reduction credit request must be submitted, in a 
format specified by the Administrator, by February 1, 2004.
    (b) For any NOX Budget unit that is subject to the Ozone 
Transport Commission NOX Budget Program under title I of the 
Clean Air Act, the owners and operators may request early reduction 
credits in accordance with the following requirements:
    (1) The NOX authorized account representative of the unit 
may submit to the Administrator a request for early reduction credits in 
an amount equal to the amount of banked allowances under the Ozone 
Transport Commission NOX Budget Program that were allocated 
for the control period in 2001 through 2003 and are held by the unit, in 
accordance with the Ozone Transport Commission NOX Budget 
Program, as of the date of submission of the request. During the entire 
control period in 2001 through 2003 for which the allowances were 
allocated, the unit must have monitored and reported NOX 
emissions in accordance with part 75 (except for subpart H) of this 
chapter and the Guidance for Implementation of Emission Monitoring 
Requirements for the NOX Budget Program (January 28, 1997).
    (2) The early reduction credit request under paragraph (b)(1) must 
be submitted, in a format specified by the Administrator, by February 1, 
2004.
    (3) The NOX authorized account representative of the unit 
shall not submit a request for early reduction credits under paragraph 
(b)(1) of this section for banked allowances under the Ozone Transport 
Commission NOX Budget Program that were allocated for any 
control period during which the unit made NOX emission 
reductions for which he or she submits a request for early reduction 
credits under paragraph (a) of this section for the unit.
    (c) The Administrator will review each early reduction credit 
request submitted in accordance with paragraph (a) or (b) of this 
section and will allocate NOX allowances to NOX 
Budget units in a given State and covered by such request as follows:
    (1) Upon receipt of each early reduction credit request, the 
Administrator will make any necessary adjustments to the request to 
ensure that the amount of the early reduction credits requested meets 
the requirements of paragraph (a) or (b) of this section.
    (2) After February 1, 2004, the Administrator will make available to 
the public a statement of the total number of early reduction credits 
requested by NOX Budget units in the State.
    (3) If the State's compliance supplement pool set forth in appendix 
D of this part has a number of NOX allowances not less than 
the amount of early reduction credits in all early reduction credit 
requests under paragraph (a) or (b) of this section for 2001 through 
2003 (as adjusted under paragraph (c)(1) of this section) submitted by 
February 1, 2004, the Administrator will allocate to each NOX 
Budget unit covered by such requests one allowance for each early 
reduction credit requested (as adjusted under paragraph (c)(1) of this 
section).
    (4) If the State's compliance supplement pool set forth in appendix 
D of this part has a smaller number of NOX allowances than 
the amount of early reduction credits in all early reduction credit 
requests under paragraph (a) or (b) of this section for 2001 through 
2003 (as adjusted under paragraph (c)(1) of this section) submitted by 
February 1, 2004, the Administrator will allocate NOX 
allowances to each NOX Budget

[[Page 882]]

unit covered by such requests according to the following formula and 
rounding to the nearest whole number of NOX allowances as 
appropriate:

Unit's allocation for early reduction credits = Unit's adjusted early 
    reduction credits x (State's compliance supplement pool / Total 
    adjusted early reduction credits for all units)

Where:

``Unit's allocation for early reduction credits'' is the number of 
NOX allowances allocated to the unit for early reduction 
credits.
``Unit's adjusted early reduction credits'' is the amount of early 
reduction credits requested for the unit for 2001 and 2002 in early 
reduction credit requests under paragraph (a) or (b) of this section, as 
adjusted under paragraph (c)(1) of this section.
``State's compliance supplement pool'' is the number of NOX 
allowances in the State's compliance supplement pool set forth in 
appendix D of this part.
``Total adjusted early reduction credits for all units'' is the amount 
of early reduction credits requested for all units for 2001 and 2002 in 
early reduction credit requests under paragraph (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 order the 
allocations under paragraph (c)(3) or (4) of this section. The 
Administrator will make available to the public each determination of 
NOX allowance allocations and will provide an opportunity for 
submission of objections to the determination. Objections shall be 
limited to addressing whether the determination is in accordance with 
paragraph (c)(1), (3), or (4) of this section. Based on any such 
objections, the Administrator will adjust each determination to the 
extent 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 allocations 
under paragraph (c)(3) or (4) of this section.
    (7) NOX allowances recorded under paragraph (c)(6) of 
this section may be deducted for compliance under Sec. 97.54 for the 
control period in 2004 or 2005. Notwithstanding Sec. 97.55(a), the 
Administrator will deduct as retired any NOX allowance that 
is recorded under paragraph (c)(6) of this section and that is not 
deducted for compliance under Sec. 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 overdraft 
accounts. Consistent with Sec. 97.51(a), the Administrator will 
establish one compliance account for each NOX Budget unit and 
one overdraft account for each source with two or more NOX 
Budget units. Allocations of NOX allowances pursuant to 
subpart E of this part or Sec. 97.88, and deductions or transfers of 
NOX allowances pursuant to Sec. 97.31, Sec. 96.54, Sec. 
96.56, subpart G of this part, or subpart I of this part will be 
recorded in compliance accounts or overdraft accounts in accordance with 
this subpart.
    (b) Nature and function of general accounts. Consistent with Sec. 
97.51(b), the Administrator will establish, upon request, a general 
account for any person. Allocations of NOX allowances 
pursuant to Sec. 97.4(b)(4)(ii) or Sec. 97.5(c)(2) and transfers of 
allowances pursuant to subpart G of this part will be recorded in 
general accounts in accordance with this subpart.



Sec. 97.51  Establishment of accounts.

    (a) Compliance accounts and overdraft accounts. Upon receipt of a 
complete account certificate of representation under Sec. 97.13, the 
Administrator will establish:
    (1) A compliance account for each NOX Budget unit for 
which the account certificate of representation was submitted; and
    (2) An overdraft account for each source for which the account 
certificate of representation was submitted and that has two or more 
NOX Budget units.
    (b) General accounts.--(1) Application for general account. (i) Any 
person may apply to open a general account for the purpose of holding 
and transferring allowances. An application for a general account may 
designate one and only

[[Page 883]]

one NOX authorized account representative and one and only 
one alternate NOX authorized account representative who may 
act on behalf of the NOX authorized account representative. 
The agreement by which the alternate NOX authorized account 
representative is selected shall include a procedure for authorizing the 
alternate NOX authorized account representative to act in 
lieu of the NOX authorized account representative. A complete 
application for a general account shall be submitted to the 
Administrator and shall include the following elements in a format 
prescribed by the Administrator:
    (A) Name, mailing address, e-mail address (if any), telephone 
number, and facsimile transmission number (if any) of the NOX 
authorized account representative and any alternate NOX 
authorized account representative;
    (B) At the option of the NOX authorized account 
representative, organization name and type of organization;
    (C) A list of all persons subject to a binding agreement for the 
NOX authorized account representative and any alternate 
NOX authorized account representative to represent their 
ownership interest with respect to the allowances held in the general 
account;
    (D) The following certification statement by the NOX 
authorized account representative and any alternate NOX 
authorized account representative: ``I certify that I was selected as 
the NOX authorized account representative or the 
NOX alternate authorized account representative, as 
applicable, by an agreement that is binding on all persons who have an 
ownership interest with respect to NOX allowances held in the 
general account. I certify that I have all the necessary authority to 
carry out my duties and responsibilities under the NOX Budget 
Trading Program on behalf of such persons and that each such person 
shall be fully bound by my representations, actions, inactions, or 
submissions and by any order or decision issued to me by the 
Administrator or a court regarding the general account.;''
    (E) The signature of the NOX authorized account 
representative and any alternate NOX authorized account 
representative and the dates signed.
    (ii) Unless otherwise required by the permitting authority or the 
Administrator, documents of agreement referred to in the application for 
a general account shall not be submitted to the permitting authority or 
the Administrator. Neither the permitting authority nor the 
Administrator shall be under any obligation to review or evaluate the 
sufficiency of such documents, if submitted.
    (2) Authorization of NOX authorized account 
representative. Upon receipt by the Administrator of a complete 
application for a general account under paragraph (b)(1) of this 
section:
    (i) The Administrator will establish a general account for the 
person or persons for whom the application is submitted.
    (ii) The NOX authorized account representative and any 
alternate NOX authorized account representative for the 
general account shall represent and, by his or her representations, 
actions, inactions, or submissions, legally bind each person who has an 
ownership interest with respect to NOX allowances held in the 
general account in all matters pertaining to the NOX Budget 
Trading Program, not withstanding any agreement between the 
NOX authorized account representative or any alternate 
NOX authorized account representative and such person. Any 
such person shall be bound by any order or decision issued to the 
NOX authorized account representative or any alternate 
NOX authorized account representative by the Administrator or 
a court regarding the general account.
    (iii) Any representation, action, inaction, or submission by any 
alternate NOX authorized account representative shall be 
deemed to be a representation, action, inaction, or submission by the 
NOX authorized account representative.
    (iv) Each submission concerning the general account shall be 
submitted, signed, and certified by the NOX authorized 
account representative or any alternate NOX authorized 
account representative for the persons having an ownership interest with 
respect to NOX allowances held in the general account. Each 
such submission shall include the following certification statement by 
the NOX authorized account representative or any alternate 
NOX authorizing

[[Page 884]]

account representative: ``I am authorized to make this submission on 
behalf of the persons having an ownership interest with respect to the 
NOX allowances held in the general account. I certify under 
penalty of law that I have personally examined, and am familiar with, 
the statements and information submitted in this document and all its 
attachments. Based on my inquiry of those individuals with primary 
responsibility for obtaining the information, I certify that the 
statements and information are to the best of my knowledge and belief 
true, accurate, and complete. I am aware that there are significant 
penalties for submitting false statements and information or omitting 
required statements and information, including the possibility of fine 
or imprisonment.''
    (v) The Administrator will accept or act on a submission concerning 
the general account only if the submission has been made, signed, and 
certified in accordance with paragraph (b)(2)(iv) of this section.
    (3) Changing NOX authorized account representative and 
alternate NOX authorized account representative; changes in 
persons with ownership interest. (i) The NOX authorized 
account representative for a general account may be changed at any time 
upon receipt by the Administrator of a superseding complete application 
for a general account under paragraph (b)(1) of this section. 
Notwithstanding any such change, all representations, actions, 
inactions, and submissions by the previous NOX authorized 
account representative prior to the time and date when the Administrator 
receives the superseding application for a general account shall be 
binding on the new NOX authorized account representative and 
the persons with an ownership interest with respect to the 
NOX allowances in the general account.
    (ii) The alternate NOX authorized account representative 
for a general account may be changed at any time upon receipt by the 
Administrator of a superseding complete application for a general 
account under paragraph (b)(1) of this section. Notwithstanding any such 
change, all representations, actions, inactions, and submissions by the 
previous alternate NOX authorized account representative 
prior to the time and date when the Administrator receives the 
superseding application for a general account shall be binding on the 
new alternate NOX authorized account representative and the 
persons with an ownership interest with respect to the NOX 
allowances in the general account.
    (iii)(A) In the event a new person having an ownership interest with 
respect to NOX allowances in the general account is not 
included in the list of such persons in the account certificate of 
representation, such new person shall be deemed to be subject to and 
bound by the account certificate of representation, the representation, 
actions, inactions, and submissions of the NOX authorized 
account representative and any alternate NOX authorized 
account representative of the source or unit, and the decisions, orders, 
actions, and inactions of the Administrator, as if the new person were 
included in such list.
    (B) Within 30 days following any change in the persons having an 
ownership interest with respect to NOX allowances in the 
general account, including the addition of persons, the NOX 
authorized account representative or any alternate NOX 
authorized account representative shall submit a revision to the 
application for a general account amending the list of persons having an 
ownership interest with respect to the NOX allowances in the 
general account to include the change.
    (4) Objections concerning NOX authorized account 
representative. (i) Once a complete application for a general account 
under paragraph (b)(1) of this section has been submitted and received, 
the Administrator will rely on the application unless and until a 
superseding 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)(3)(i) or (ii) of this 
section, no objection or other communication submitted to the 
Administrator concerning the authorization, or any representation, 
action, inaction, or submission of the NOX authorized account 
representative or any alternative NOX authorized account 
representative for a

[[Page 885]]

general account shall affect any representation, action, inaction, or 
submission of the NOX authorized account representative or 
any alternative NOX authorized account representative or the 
finality of any decision or order by the Administrator under the 
NOX Budget Trading Program.
    (iii) The Administrator will not adjudicate any private legal 
dispute concerning the authorization or any representation, action, 
inaction, or submission of the NOX authorized account 
representative or any alternative NOX authorized account 
representative for a general account, including private legal disputes 
concerning the proceeds of NOX allowance transfers.
    (c) Account identification. The Administrator will assign a unique 
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 of NOX 

authorized account representative.

    (a) Following the establishment of a NOX Allowance 
Tracking System account, all submissions to the Administrator pertaining 
to the account, including, but not limited to, submissions concerning 
the deduction or transfer of NOX allowances in the account, 
shall be made only by the NOX authorized account 
representative for the account.
    (b) Authorized account representative identification. The 
Administrator will assign a unique identifying number to each 
NOX authorized account representative.



Sec. 97.53  Recordation of NOX allowance allocations.

    (a) The Administrator will record the NOX allowances for 
2004 for a NOX Budget unit allocated under subpart E of this 
part in the unit's compliance account, except for NOX 
allowances under Sec. 97.4(b)(4)(ii) or Sec. 97.5(c)(2), which will be 
recorded in the general account specified by the owners and operators of 
the unit. The Administrator will record NOX allowances for 
2004 for a NOX Budget opt-in unit in the unit's compliance 
account as allocated under Sec. 97.88(a).
    (b) By May 1, 2003, the Administrator will record the NOX 
allowances for 2005 for a NOX Budget unit allocated under 
subpart E of this part in the unit's compliance account, except for 
NOX allowances under Sec. 97.4(b)(4)(ii) or Sec. 
97.5(c)(2), which will be recorded in the general account specified by 
the owners and operators of the unit. The Administrator will record 
NOX allowances for 2005 for a NOX Budget opt-in 
unit in the unit's compliance account as allocated under Sec. 97.88(a).
    (c) By May 1, 2003, the Administrator will record the NOX 
allowances for 2006 for a NOX Budget unit allocated under 
subpart E of this part in the unit's compliance account, except for 
NOX allowances under Sec. 97.4(b)(4)(ii) or Sec. 
97.5(c)(2), which will be recorded in the general account specified by 
the owners and operators of the unit. The Administrator will record 
NOX allowances for 2006 for a NOX Budget opt-in 
unit in the unit's compliance account as allocated under Sec. 97.88(a).
    (d) By May 1, 2004, the Administrator will record the NOX 
allowances for 2007 for a NOX Budget unit allocated under 
subpart E of this part in the unit's compliance account, except for 
NOX allowances under Sec. 97.4(b)(4)(ii) or Sec. 
97.5(c)(2), which will be recorded in the general account specified by 
the owners and operators of the unit. The Administrator will record 
NOX allowances for 2007 for a NOX Budget opt-in 
unit in the unit's compliance account as allocated under Sec. 97.88(a).
    (e) Each year starting with 2005, after the Administrator has made 
all deductions from a NOX Budget unit's compliance account 
and the overdraft account pursuant to Sec. 97.54 (except deductions 
pursuant to Sec. 97.54(d)(2)), the Administrator will record:
    (1) NOX allowances, in the compliance account, as 
allocated to the unit under subpart E of this part for the third year 
after the year of the control period for which such deductions were or 
could have been made;
    (2) NOX allowances, in the general account specified by 
the owners and operators of the unit, as allocated under Sec. 
97.4(b)(4)(ii) or Sec. 97.5(c)(2) for the third

[[Page 886]]

year after the year of the control period for which such deductions are 
or could have been made; and
    (3) NOX allowances, in the compliance account, as 
allocated to the unit under Sec. 97.88(a).
    (f) Serial numbers for allocated NOX allowances. When 
allocating NOX allowances to a NOX Budget unit and 
recording them in an account, the Administrator will assign each 
NOX allowance a unique identification number that will 
include digits identifying the year for 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. The NOX 
allowances are available to be deducted for compliance with a unit's 
NOX Budget emissions limitation for a control period in a 
given year only if the NOX allowances:
    (1) Were allocated for a control period in a prior year or the same 
year; and
    (2) Are held in the unit's compliance account, or the overdraft 
account of the source where the unit is located, as of the 
NOX allowance transfer deadline for that control period or 
are transferred into the compliance account or overdraft account by a 
NOX allowance transfer correctly submitted for recordation 
under Sec. 97.60 by the NOX allowance transfer deadline for 
that control period.
    (b) Deductions for compliance. (1) Following the recordation, in 
accordance with Sec. 97.61, of NOX allowance transfers 
submitted for recordation in the unit's compliance account or the 
overdraft account of the source where the unit is located by the 
NOX allowance transfer deadline for a control period, the 
Administrator will deduct NOX allowances available under 
paragraph (a) of this section to cover the unit's NOX 
emissions (as determined in accordance with subpart H of this part), or 
to account for actual heat input under Sec. 97.42(e), for the control 
period:
    (i) From the compliance account; and
    (ii) Only if no more NOX allowances available under 
paragraph (a) of this section remain in the compliance account, from the 
overdraft account. In deducting allowances for units at the source from 
the overdraft account, the Administrator will begin with the unit having 
the compliance account with the lowest account number and end with the 
unit having the compliance account with the highest account number (with 
account numbers sorted beginning with the left-most character and ending 
with the right-most character and the letter characters assigned values 
in alphabetical order and less than all numeric characters).
    (2) The Administrator will deduct NOX allowances first 
under 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 for the 
control period equals the number of tons of NOX emissions, 
determined in accordance with subpart H of this part, from the unit for 
the control period for which compliance is being determined, plus the 
number of NOX allowances required for deduction to account 
for actual heat input under Sec. 97.42(e) for the control period; or
    (ii) Until no more NOX allowances available under 
paragraph (a) of this section remain in the respective account.
    (c)(1) Identification of NOX allowances by serial number. The 
NOX authorized account representative for each compliance 
account may identify by serial number the NOX allowances to 
be deducted from the unit's compliance account under paragraph (b), (d), 
(e), or (f) of this section. Such identification shall be made in the 
compliance certification report submitted in accordance with Sec. 
97.30.
    (2) First-in, first-out. The Administrator will deduct 
NOX allowances for a control period from the compliance 
account, in the absence of an identification or in the case of a partial 
identification of NOX allowances by serial number under 
paragraph (c)(1) of this section, or the overdraft account on a first-
in, first-out (FIFO) accounting basis in the following order:
    (i) Those NOX allowances that were allocated for the 
control period to the unit under subpart E or I of this part;
    (ii) Those NOX allowances that were allocated for the 
control period to any unit and transferred and recorded in the account 
pursuant to subpart G of

[[Page 887]]

this part, in order of their date of recordation;
    (iii) Those NOX allowances that were allocated for a 
prior control period to the unit under subpart E or I of this part; and
    (iv) Those NOX allowances that were allocated for a prior 
control period to any unit and transferred and recorded in the account 
pursuant to subpart G of this part, in order of their date of 
recordation.
    (d) Deductions for excess emissions. (1) After making the deductions 
for compliance under paragraph (b) of this section, the Administrator 
will deduct from the unit's compliance account or the overdraft account 
of the source where the unit is located a number of NOX 
allowances, allocated for a control period after the control period in 
which the unit has excess emissions, equal to three times the number of 
the unit's excess emissions.
    (2) If the compliance account or overdraft account does not contain 
sufficient NOX allowances, the Administrator will deduct the 
required number of NOX allowances, regardless of the control 
period for which they were allocated, whenever NOX allowances 
are recorded in either account.
    (3) Any allowance deduction required under paragraph (d) of this 
section shall not affect the liability of the owners and operators of 
the NOX Budget unit for any fine, penalty, or assessment, or 
their obligation to comply with any other remedy, for the same 
violation, 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 control period, 
each day in the control period (153 days) constitutes a day in violation 
unless the owners and operators of the unit demonstrate that a 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 case of 
units sharing a common stack and having emissions that are not 
separately monitored or apportioned in accordance with subpart H of this 
part:
    (1) The NOX authorized account representative of the 
units may identify the percentage of NOX allowances to be 
deducted from each such unit's compliance account to cover the unit's 
share of NOX emissions from the common stack for a control 
period. Such identification shall be made in the compliance 
certification report submitted in accordance with Sec. 97.30.
    (2) Notwithstanding paragraph (b)(2)(i) of this section, the 
Administrator will deduct NOX allowances for each such unit 
until the number of NOX allowances deducted equals the unit's 
identified percentage under paragraph (e)(1) of this section or, if no 
percentage is identified, an equal percentage for each unit multiplied 
by the number of tons of NOX emissions, as determined in 
accordance with subpart H of this part, from the common stack for the 
control period for which compliance is being determined. In addition to 
the deductions under the first sentence of this paragraph (e)(1), the 
Administrator will deduct NOX allowances for each such unit 
until the number of NOX allowances deducted equals the number 
of NOX allowances required to account for actual heat input 
under Sec. 97.42(e) for the unit for the control period.
    (f) Deduction of banked allowances. Each year starting in 2006, 
after the Administrator has completed the designation of banked 
NOX allowances under Sec. 97.55(b) and before May 1 of the 
year, the Administrator will determine the extent to which banked 
NOX allowances otherwise available under paragraph (a) of 
this section are available for compliance in the control period for the 
current year, as follows. For each State NOX Budget Trading 
Program that is established, and approved and administered by the 
Administrator pursuant to Sec. 51.121 of this chapter, the terms 
``compliance account'' or ``compliance accounts'', ``overdraft account'' 
or ``overdraft accounts'', ``general account'' or ``general accounts'', 
``States'', and ``trading program budgets 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

[[Page 888]]

established under such State NOX Budget Trading Program; an 
overdraft account or overdraft accounts established under such State 
NOX Budget Trading Program; a general account or general 
accounts established under such State NOX Budget Trading 
Program; the State or portion of a State covered by such State 
NOX Budget Trading Program; and the trading program budget of 
the State or portion of a State covered by such State NOX 
Budget Trading Program.
    (1) The Administrator will determine the total number of banked 
NOX allowances held in compliance accounts, overdraft 
accounts, or general accounts.
    (2) If the total number of banked NOX allowances 
determined, under paragraph (f)(1) of this section, to be held in 
compliance accounts, overdraft accounts, or general accounts is less 
than or equal to 10 percent of the sum of the trading program budgets 
under Sec. 97.40 for all States for the control period, any banked 
NOX allowance may be deducted for compliance in accordance 
with paragraphs (a) through (e) of this section.
    (3) If the total number of banked NOX allowances 
determined, under paragraph (f)(1) of this section, to be held in 
compliance accounts, overdraft accounts, or general accounts exceeds 10 
percent of the sum of the trading program budgets under Sec. 97.40 for 
all States for the control period, any banked allowance 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: 0.10 
multiplied by the sum of the trading program budgets under Sec. 97.40 
for all States for the control period and divided by the total number of 
banked NOX allowances determined, under paragraph (f)(1) of 
this section, to be held in compliance accounts, overdraft accounts, or 
general accounts.
    (ii) The Administrator will multiply the number of banked 
NOX allowances in each compliance account or overdraft 
account by the ratio determined under paragraph (f)(3)(i) of this 
section. The resulting product is the number of banked NOX 
allowances in the account that may be deducted for compliance in 
accordance with paragraphs (a) through (e) of this section. Any banked 
NOX allowances in excess of the resulting product may be 
deducted for compliance in accordance with paragraphs (a) through (e) of 
this section, except that, if such NOX allowances are used to 
make a deduction under paragraph (b) or (e) of this section, two (rather 
than one) such NOX allowances shall authorize up to one ton 
of NOX emissions during the control period and must be 
deducted for each deduction of one NOX allowance required 
under paragraph (b) or (e) of this section.
    (g) Recordation of deductions. The Administrator will record in the 
appropriate compliance account or overdraft account all deductions from 
such an 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 or transfer 
in a compliance account, an overdraft account, or a general account, as 
follows:
    (a) Any NOX allowance that is held in a compliance 
account, an overdraft account, or a general account will remain in such 
account unless and until the NOX allowance is deducted or 
transferred under Sec. 97.31, Sec. 97.54, Sec. 97.56, or subpart G or 
I of this part.
    (b) The Administrator will designate, as a ``banked'' NOX 
allowance, any NOX allowance that remains in a compliance 
account, an overdraft account, or a general account after the 
Administrator has made all deductions for a given control period from 
the compliance account or overdraft account pursuant to Sec. 97.54 
(except deductions pursuant to Sec. 97.54(d)(2)) and that was allocated 
for that control period 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 or 
her own motion, correct any error in any NOX Allowance 
Tracking System account. Within 10 business days of making such

[[Page 889]]

correction, the Administrator will notify the NOX authorized 
account representative for the account.



Sec. 97.57  Closing of general accounts.

    (a) The NOX authorized account representative of a 
general account may instruct the Administrator to close the account by 
submitting a statement requesting deletion of the account from the 
NOX Allowance Tracking System and by correctly submitting for 
recordation under Sec. 97.60 an allowance transfer of all 
NOX allowances in the account to one or more other 
NOX Allowance Tracking System accounts.
    (b) If a general account shows no activity for a period of a year or 
more and does not contain any NOX allowances, the 
Administrator may notify the NOX authorized account 
representative for the account that the account will be closed and 
deleted from the NOX Allowance Tracking System following 20 
business days after the notice is sent. The account will be closed after 
the 20-day period unless before the end of the 20-day period the 
Administrator receives a correctly submitted transfer of NOX 
allowances into the account under Sec. 97.60 or a statement submitted 
by the NOX authorized account representative demonstrating to 
the satisfaction of the Administrator good 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 seeking 
recordation of a NOX allowance transfer shall submit the 
transfer to the Administrator. To be considered correctly submitted, the 
NOX allowance transfer shall include the following elements 
in a format specified by the Administrator:
    (a) The numbers identifying both the transferor and transferee 
accounts;
    (b) A specification by serial number of each NOX 
allowance to be transferred; and
    (c) The printed name and signature of the NOX authorized 
account representative of the transferor account and the date signed.



Sec. 97.61  EPA recordation.

    (a) Within 5 business days of receiving a NOX allowance 
transfer, except as provided in paragraph (b) of this section, the 
Administrator will record a NOX allowance transfer by moving 
each NOX allowance from the transferor account to the 
transferee account as specified by the request, provided that:
    (1) The transfer is correctly submitted under Sec. 97.60; and
    (2) The transferor account includes each NOX allowance 
identified by serial number in the transfer.
    (b) A NOX allowance transfer that is submitted for 
recordation following the NOX allowance transfer deadline and 
that includes any NOX allowances allocated for a control 
period prior to or the same as the control period to which the 
NOX allowance transfer deadline applies will not be recorded 
until after the Administrator completes the recordation of 
NOX allowance allocations under Sec. 97.53 for the control 
period in the fourth year after the control period to which the 
NOX allowance transfer deadline applies.
    (c) Where a NOX allowance transfer submitted for 
recordation fails to meet the requirements of paragraph (a) of this 
section, 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 of 
recordation of a NOX allowance transfer under Sec. 97.61, 
the Administrator will notify the NOX authorized account 
representatives of both the transferor and transferee accounts.
    (b) Notification of non-recordation. Within 10 business days of 
receipt of a NOX allowance transfer that fails to meet the 
requirements of Sec. 97.61(a), the Administrator will notify the 
NOX authorized account representatives of both accounts 
subject to the transfer of:
    (1) A decision not to record the transfer; and
    (2) The reasons for such non-recordation.

[[Page 890]]

    (c) Nothing in this section shall preclude the submission of a 
NOX allowance transfer for recordation following notification 
of non-recordation.



                   Subpart H_Monitoring and Reporting



Sec. 97.70  General requirements.

    The owners and operators, and to the extent applicable, the 
NOX authorized account representative of a NOX 
Budget unit, shall comply with the monitoring, recordkeeping, and 
reporting requirements as provided in this subpart and in subpart H of 
part 75 of this chapter. For purposes of complying with such 
requirements, the definitions in Sec. 97.2 and in Sec. 72.2 of this 
chapter shall apply, and the terms ``affected unit,'' ``designated 
representative,'' and ``continuous emission monitoring system'' (or 
``CEMS'') in part 75 of this chapter shall be deemed to refer to the 
terms ``NOX Budget unit,'' ``NOX authorized 
account representative,'' and ``continuous emission monitoring system'' 
(or ``CEMS'') respectively, as defined in Sec. 97.2. The owner or 
operator of a unit that is not a NOX Budget unit but that is 
monitored under Sec. 75.72(b)(2)(ii) of this chapter shall comply with 
the monitoring, recordkeeping, and reporting requirements for a 
NOX Budget unit under this part.
    (a) Requirements for installation, certification, and data 
accounting. The owner or operator of each NOX Budget unit 
shall meet the following requirements. These provisions shall also apply 
to a unit for which an application for a NOX Budget opt-in 
permit is submitted and not denied or withdrawn, as provided in subpart 
I of this part:
    (1) Install all monitoring systems required under this subpart for 
monitoring NOX mass emissions. This includes all systems 
required to monitor NOX emission rate, NOX 
concentration, heat input rate, and stack flow rate, in accordance with 
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 under 
Sec. 97.71 and meet all other requirements of this subpart and part 75 
of this chapter applicable to the monitoring systems under paragraphs 
(a)(1) and (2) of this section.
    (4) Record, report, and quality-assure the data from the monitoring 
systems under paragraphs (a)(1) and (2) of this section.
    (b) Compliance deadlines. The owner or operator shall meet the 
certification and other requirements of paragraphs (a)(1) through (a)(3) 
of this section on or before the following dates. The owner or operator 
shall record, report and quality-assure the data from the monitoring 
systems under paragraphs (a)(1) and (a)(2) of this section on and after 
the following dates.
    (1) For the owner or operator of a NOX Budget unit for 
which the owner or operator intends to apply for early reduction credits 
under Sec. 97.43, by May 1, 2001. If the owner or operator of a 
NOX Budget unit fails to meet this deadline, he or she is not 
eligible to apply for early reduction credits and is subject to the 
deadline under paragraph (b)(2) of this section.
    (2) For the owner or operator of a NOX Budget unit under 
Sec. 97.4(a) that commences operation before January 1, 2003 and that 
is not subject to or does not meet the deadline under paragraph (b)(1) 
of this section, by May 1, 2003.
    (3) For the owner or operator of a NOX Budget unit under 
Sec. 97.4(a) that commences operation on or after January 1, 2003 and 
that reports on an annual basis under Sec. 97.74(d) by the following 
dates:
    (i) The earlier of 90 unit operating days after the date on which 
the unit commences commercial operation or 180 calendar days after the 
date 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 unit under 
Sec. 97.4(a) that commences operation on or after January 1, 2003 and 
that reports on a control period basis under Sec. 97.74(d)(2)(ii), by 
the following dates:
    (i) The earlier of 90 unit operating days or 180 calendar days after 
the date on which the unit commences commercial operation, if this 
compliance date is during a control period; or

[[Page 891]]

    (ii) May 1 immediately following the compliance date under paragraph 
(b)(4)(i) of this section, if such compliance date is not during a 
control period.
    (5) For the owner or operator of a NOX Budget unit that 
has a new stack or flue or add-on NOX emission controls for 
which construction is completed after the applicable deadline under 
paragraph (b)(1), (b)(2), (b)(3), or (b)(4) of this section or under 
subpart I of this part and that reports on an annual basis under Sec. 
97.74(d), by the earlier of 90 unit operating days or 180 calendar days 
after the date on which emissions first exit to the atmosphere through 
the new stack or flue or add-on NOX emission controls.
    (6) For the owner or operator of a NOX Budget unit that 
has a new stack or flue or add-on NOX emission controls for 
which construction is completed after the applicable deadline under 
paragraph (b)(1), (b)(2), (b)(3), or (b)(4) of this section or under 
subpart I of this part and that reports on a control period basis under 
Sec. 97.74(d)(2)(ii), by the following dates:
    (i) The earlier of 90 unit operating days or 180 calendar days after 
the date on which emissions first exit to the atmosphere through the new 
stack or flue or add-on NOX emission controls, if this 
compliance date is during a control period; or
    (ii) May 1 immediately following the compliance date under paragraph 
(b)(6)(i) of this section, if such compliance date is not during a 
control period.
    (7) For the owner or operator of a unit for which an application for 
a NOX Budget opt-in permit is submitted and not denied or 
withdrawn, by the date specified under subpart I of this part.
    (c) Commencement of data reporting. (1) The owner or operator of 
NOX Budget units under paragraph (b)(1) or (b)(2) of this 
section shall determine, record and report NOX mass 
emissions, heat input rate, and any other values required to determine 
NOX mass emissions (e.g., NOX emission rate and 
heat input rate, or NOX concentration and stack flow rate) in 
accordance with Sec. 75.70(g) of this chapter, beginning on the first 
hour of the applicable compliance deadline in paragraph (b)(1) or (b)(2) 
of this section.
    (2) The owner or operator of a NOX Budget unit under 
paragraph (b)(3) or (b)(4) of this section shall determine, record and 
report NOX mass emissions, heat input rate, and any other 
values required to determine NOX mass emissions (e.g., 
NOX emission rate and heat input rate, or NOX 
concentration and stack flow rate) and electric and thermal output in 
accordance with Sec. 75.70(g) of this chapter, beginning on:
    (i) The date and hour on which the unit commences operation, if the 
date and hour on which the unit commences operation is during a control 
period; or
    (ii) The first hour on May 1 of the first control period after the 
date and hour on which the unit commences operation, if the date and 
hour on which the unit commences operation is not during a control 
period.
    (3) Notwithstanding paragraphs (c)(2)(i) and (c)(2)(ii) of this 
section, the owner or operator may begin reporting NOX mass 
emission data and heat input data before the date and hour under 
paragraph (c)(2)(i) or (c)(2)(ii) of this section if the unit reports on 
an annual basis and if the required monitoring systems are certified 
before the applicable date and hour under paragraph (c)(1) or (c)(2) of 
this section.
    (d) Prohibitions. (1) No owner or operator of a NOX 
Budget unit shall use any alternative monitoring system, alternative 
reference method, or any other alternative for the required continuous 
emission monitoring system without having obtained prior written 
approval in accordance with Sec. 97.75.
    (2) No owner or operator of a NOX Budget unit shall 
operate the unit so as to discharge, or allow to be discharged, 
NOX emissions to the atmosphere without accounting for all 
such emissions in accordance with the applicable provisions of this 
subpart and part 75 of this chapter, except as provided in Sec. 75.74 
of this chapter.
    (3) No owner or operator of a NOX Budget unit shall 
disrupt the continuous emission monitoring system, any portion thereof, 
or any other approved emission monitoring method, and thereby avoid 
monitoring and recording NOX mass emissions discharged into 
the atmosphere, except for periods

[[Page 892]]

of recertification or periods when calibration, quality assurance 
testing, or maintenance is performed in accordance with the applicable 
provisions of this subpart and part 75 of this chapter or except as 
provided in Sec. 75.74 of this chapter.
    (4) No owner or operator of a NOX Budget unit shall 
retire or permanently discontinue use of the continuous emission 
monitoring system, any component thereof, or any other approved emission 
monitoring system under this subpart, except under any one of the 
following circumstances:
    (i) During the period that the unit is covered by an exemption under 
Sec. 97.4(b) or Sec. 97.5 that is in effect;
    (ii) The owner or operator is monitoring emissions from the unit 
with another certified monitoring system approved, in accordance with 
the applicable provisions of this subpart and part 75 of this chapter, 
by the permitting authority for use at that unit that provides emission 
data for the same pollutant or parameter as the retired or discontinued 
monitoring system; or
    (iii) The NOX authorized account representative submits 
notification of the date of certification testing of a replacement 
monitoring system for the retired or discontinued monitoring 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 is 
subject to an Acid Rain emissions limitation shall comply with the 
initial certification and recertification procedures of part 75 of this 
chapter for NOX-diluent CEMS, flow monitors, NOX 
concentration CEMS, or excepted monitoring systems under appendix E of 
part 75 of this chapter for NOX. under appendix D for heat 
input, or under Sec. 75.19 for NOX and heat input, except 
that:
    (1) If, prior to January 1, 1998, the Administrator approved a 
petition under Sec. 75.17(a) or (b) of this chapter for apportioning 
the NOX emission rate measured in a common stack or a 
petition under Sec. 75.66 of this chapter for an alternative to a 
requirement in Sec. 75.17 of this chapter, the NOX 
authorized account representative shall resubmit the petition to the 
Administrator under Sec. 97.75(a) to determine if the approval applies 
under the NOX Budget Trading Program.
    (2) For any additional CEMS required under the common stack 
provisions in Sec. 75.72 of this chapter or for any NOX 
concentration CEMS used under the provisions of Sec. 75.71(a)(2) of 
this chapter, the owner or operator shall meet the requirements of 
paragraph (b) of this section.
    (b) The owner or operator of a NOX Budget unit that is 
not subject to an Acid Rain emissions limitation shall comply with the 
following initial certification and recertification procedures. The 
owner or operator of such a unit that qualifies to use the low mass 
emissions excepted monitoring methodology under Sec. 75.19 of this 
chapter or that qualifies to use an alternative monitoring system under 
subpart E of part 75 of this chapter shall comply with the following 
procedures, as modified by paragraph (c) or (d) of this section. The 
owner or operator of a NOX Budget unit that is subject to an 
Acid Rain emissions limitation and that requires additional CEMS under 
the common stack provisions in Sec. 75.72 of this chapter or uses a 
NOX concentration CEMS under Sec. 75.71(a)(2) of this 
chapter shall comply with the following procedures.
    (1) Requirements for initial certification. The owner or operator 
shall ensure that each emission monitoring system required by subpart H 
of part 75 of this chapter (which includes the automated data 
acquisition and handling system) successfully completes all of the 
initial certification testing required under Sec. 75.20 of this chapter 
by the applicable deadline in Sec. 97.70(b). In addition, whenever the 
owner or operator installs an emission monitoring system in order to 
meet the requirements of this part in a location where no such emission 
monitoring system was previously installed, initial certification in 
accordance with Sec. 75.20 of this chapter is required.
    (2) Requirements for recertification. Whenever the owner or operator 
makes a replacement, modification, or change in a certified emission 
monitoring system that may significantly affect the

[[Page 893]]

ability of the system to accurately measure or record NOX 
mass emissions or heat input rate or to meet the requirements of Sec. 
75.21 of this chapter or appendix B to part 75 of this chapter, the 
owner or operator shall recertify the emission monitoring system 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's operation that may 
significantly change the stack flow or concentration profile, the owner 
or operator shall recertify the continuous emissions monitoring system 
in accordance with Sec. 75.20(b) of this chapter. Examples of changes 
that require recertification include: replacement of the analyzer, 
complete replacement of an existing continuous emission monitoring 
system, or change in location or orientation of the sampling probe or 
site.
    (3) Certification approval process for initial certification and 
recertification--(i) Notification of certification. The NOX 
authorized account representative shall submit to the Administrator, the 
appropriate EPA Regional Office and the permitting authority written 
notice of the dates of certification in accordance with Sec. 97.73.
    (ii) Certification application. The NOX authorized 
account representative shall submit to the Administrator, the 
appropriate EPA Regional Office and the permitting authority a 
certification application for each emission monitoring system required 
under subpart H of part 75 of this chapter. A complete certification 
application shall include the information specified in subpart H of part 
75 of this chapter.
    (iii) Except for units using the low mass emission excepted 
methodology under Sec. 75.19 of this chapter, the provisional 
certification date for a monitor shall be determined in accordance with 
Sec. 75.20(a)(3) of this chapter. A provisionally certified monitor may 
be used under the NOX Budget Trading Program for a period not 
to exceed 120 days after receipt by the Administrator of the complete 
certification application for the monitoring system under paragraph 
(b)(3)(ii) of this section. Data measured and recorded by the 
provisionally certified monitoring system, in accordance with the 
requirements of part 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 
provisional certification by issuing a notice of disapproval within 120 
days of receipt of the complete certification application by the 
Administrator.
    (iv) Certification application formal approval process. The 
Administrator will issue a written notice of approval or disapproval of 
the certification application to the owner or operator within 120 days 
of receipt of the complete certification application under paragraph 
(b)(3)(ii) of this section. In the event the Administrator does not 
issue such a notice within such 120-day period, each monitoring system 
that meets the applicable performance requirements of part 75 of this 
chapter and is included in the certification application will be deemed 
certified for use under the NOX Budget Trading Program.
    (A) Approval notice. If the certification application is complete 
and shows that each monitoring system meets the applicable performance 
requirements of part 75 of this chapter, then the Administrator will 
issue a written notice of approval of the certification application 
within 120 days of receipt.
    (B) Incomplete application notice. A certification application will 
be considered complete when all of the applicable information required 
to be submitted under paragraph (b)(3)(ii) of this section has been 
received by the Administrator. If the certification application is not 
complete, then the Administrator will issue a written notice of 
incompleteness that sets a reasonable date by which the NOX 
authorized account representative must submit the additional information 
required to complete the certification application. If the 
NOX authorized account representative does not comply with 
the notice of incompleteness by the specified date, then the 
Administrator may issue a notice of disapproval under paragraph 
(b)(3)(iv)(C) of this section. The 120-day review period shall not begin 
prior to receipt of a complete certification application.

[[Page 894]]

    (C) Disapproval notice. If the certification application shows that 
any monitoring system or component thereof does not meet the performance 
requirements of this part, or if the certification application is 
incomplete and the requirement for disapproval under paragraph 
(b)(3)(iv)(B) of this section has been met, then the Administrator will 
issue a written notice of disapproval of the certification application. 
Upon issuance of such notice of disapproval, the provisional 
certification is invalidated by the Administrator and the data measured 
and recorded by each uncertified monitoring system shall not be 
considered valid quality-assured data beginning with the date and hour 
of provisional certification (as defined under Sec. 75.20(a)(3) of this 
chapter). The owner or operator shall follow the procedures for loss of 
certification in paragraph (b)(3)(v) of this section for each monitoring 
system that is disapproved for initial certification.
    (D) Audit decertification. The Administrator may issue a notice of 
disapproval of the certification status of a monitor in accordance with 
Sec. 97.72(b).
    (v) Procedures for loss of certification. If the Administrator 
issues a notice of disapproval of a certification application under 
paragraph (b)(3)(iv)(C) of this section or a notice of 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 data specified 
under Sec. 75.20(a)(4)(iii), Sec. 75.20(b)(5), Sec. 75.20(h)(4), or 
Sec. 75.21(e) and continuing until the date and hour specified under 
Sec. 75.20(a)(5)(i) of this chapter:
    (1) For units that the owner or operator intends to monitor or 
monitors for NOX emission rate and heat input rate or intends 
to determine or determines NOX mass emissions using the low 
mass emission excepted methodology under Sec. 75.19 of this chapter, 
the maximum potential NOX emission rate and the maximum 
potential hourly heat input of the unit; and
    (2) For units that the owner or operator intends to monitor or 
monitors for NOX mass emissions using a NOX 
pollutant concentration monitor and a flow monitor, the maximum 
potential concentration of NOX and the maximum potential flow 
rate of the unit under section 2 of appendix A of part 75 of this 
chapter.
    (B) The NOX authorized account representative shall 
submit a notification of certification retest dates and a new 
certification application in accordance with paragraphs (b)(3)(i) and 
(ii) of this section.
    (C) The owner or operator shall repeat all certification tests or 
other requirements that were failed by the monitoring system, as 
indicated in the Administrator's notice of disapproval, no later than 30 
unit operating days after the date of issuance of the notice of 
disapproval.
    (c) Initial certification and recertification procedures for low 
mass emission units using the excepted methodologies under Sec. 75.19 
of this chapter. The owner or operator of a gas-fired or oil-fired unit 
using the low mass emissions excepted methodology under Sec. 75.19 of 
this chapter and not subject to an Acid Rain emissions limitation shall 
meet the applicable general operating requirements of Sec. 75.10 of 
this chapter and the applicable requirements of Sec. 75.19 of this 
chapter. The owner or operator of such a unit shall also meet the 
applicable certification and recertification procedures of paragraph (b) 
of this section, except that the excepted methodology shall be deemed 
provisionally certified for use under the NOX Budget Trading 
Program as of the date on which a complete certification application is 
received by the Administrator. The methodology shall be considered to be 
certified either upon receipt of a written notice of approval from the 
Administrator or, if such notice is not provided, at the end of the 
Administrator's 120 day review period. However, a provisionally 
certified or certified low mass emissions excepted methodology shall not 
be used to report data under the NOX Budget Trading Program 
prior to the applicable commencement date specified in Sec. 
75.19(a)(1)(ii) of this chapter.
    (d) Certification/recertification procedures for alternative 
monitoring systems. The NOX authorized account representative 
of each unit not subject to an Acid Rain emissions limitation for

[[Page 895]]

which the owner or operator intends to use an alternative monitoring 
system approved by the Administrator under subpart E of part 75 of this 
chapter shall comply with the applicable certification procedures of 
paragraph (b) of this section before using the system under the 
NOX Budget Trading Program. The NOX authorized 
account representative shall also comply with the applicable 
recertification procedures of paragraph (b) of this section. Section 
75.20(f) of this chapter shall apply to such alternative 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 the 
quality assurance or data validation requirements of part 75 of this 
chapter, data shall be substituted using the applicable procedures in 
subpart D, subpart H, appendix D, or appendix E of part 75 of this 
chapter.
    (b) Audit decertification. Whenever both an audit of an emission 
monitoring system and a review of the initial certification or 
recertification application reveal that any system should not have been 
certified or recertified because it did not meet a particular 
performance specification or other requirement under Sec. 97.71 or the 
applicable provisions of part 75 of this chapter, both at the time of 
the initial certification or recertification application submission and 
at the time of the audit, the Administrator will issue a notice of 
disapproval of the certification status of such system. For the purposes 
of this paragraph, an audit shall be either a field audit or an audit of 
any information submitted to the permitting authority or the 
Administrator. By issuing the notice of disapproval, the Administrator 
revokes prospectively the certification status of the system. The data 
measured and recorded by the system shall not be considered valid 
quality-assured data from the date of issuance of the notification of 
the revoked certification status until the date and time that the owner 
or operator completes subsequently approved initial certification or 
recertification tests for the system. The owner or operator shall follow 
the initial certification or recertification procedures 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 a 
NOX Budget unit shall submit written notice to the 
Administrator, the appropriate EPA Regional Office, and the permitting 
authority in accordance with Sec. 75.61 of this chapter.
    (b) For any unit that does not have an Acid Rain emissions 
limitation, the permitting authority may waive the requirement to notify 
the permitting authority in paragraph (a) of this section.



Sec. 97.74  Recordkeeping and reporting.

    (a) General provisions. (1) The NOX authorized account 
representative shall comply with all recordkeeping and reporting 
requirements in this section, with the recordkeeping and reporting 
requirements under Sec. 75.73 of this chapter, and with the 
requirements of Sec. 97.10(e)(1).
    (2) If the NOX authorized account representative for a 
NOX Budget unit subject to an Acid Rain emission limitation 
who signed and certified any submission that is made under subpart F or 
G of part 75 of this chapter and that includes data and information 
required under this subpart or subpart H of part 75 of this chapter is 
not the same person as the designated representative or the alternative 
designated representative for the unit under part 72 of this chapter, 
then the submission must also be signed by the designated representative 
or the alternative designated representative.
    (b) Monitoring plans. (1) The owner or operator of a unit subject to 
an Acid Rain emissions limitation shall comply with requirements of 
Sec. 75.62 of this chapter, except that the monitoring plan shall also 
include all of the information required by subpart H of part 75 of this 
chapter.
    (2) The owner or operator of a unit that is not subject to an Acid 
Rain emissions limitation shall comply with requirements of Sec. 75.62 
of this chapter, except that the monitoring plan is only

[[Page 896]]

required to include the information required by subpart H of part 75 of 
this chapter.
    (c) Certification applications. The NOX authorized 
account representative shall submit an application to the Administrator, 
the appropriate EPA Regional Office, and the permitting authority within 
45 days after completing all initial certification or recertification 
tests required under Sec. 97.71 including the information required 
under subpart H of part 75 of this chapter.
    (d) Quarterly reports. The NOX authorized account 
representative shall submit quarterly reports, as follows:
    (1) If a unit is subject to an Acid Rain emission limitation or if 
the owner or operator of the NOX budget unit chooses to meet 
the annual reporting requirements of this subpart H, the NOX 
authorized account representative shall submit a quarterly report for 
each calendar quarter beginning with:
    (i) For a unit for which the owner or operator intends to apply or 
applies 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 reported from 
the first hour on May 1, 2000; or
    (ii) For a unit that commences operation before January 1, 2003 and 
that is not subject to paragraph (d)(1)(i) of this section, the calendar 
quarter covering May 1, 2003 through June 30, 2003. The NOX 
mass emission data shall be recorded and reported from the 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, if 
unit operation commences during a control period. The NOX 
mass emission data shall be recorded and reported from the date and hour 
when the unit commences operation; or
    (B) The calendar quarter which includes May 1 through June 30 of the 
first control period following the date on which the unit commences 
operation, if the unit does not commence operation during a control 
period. The NOX mass emission data shall be recorded and 
reported from the first hour on May 1 of that control period; 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 owner 
or operator elects to begin reporting early under Sec. 97.70(c)(3).
    (2) If a NOX budget unit is not subject to an Acid Rain 
emission limitation, then the NOX authorized account 
representative shall either:
    (i) Meet all of the requirements of part 75 related to monitoring 
and reporting NOX mass emissions during the entire year and 
meet the deadlines specified in paragraph (d)(1) of this section; or
    (ii) Submit quarterly reports, documenting NOX mass 
emissions from the unit, only for the period from May 1 through 
September 30 of each year and including the data described in Sec. 
75.74(c)(6) of this chapter. The NOX authorized account 
representative shall submit such quarterly reports, beginning with:
    (A) For a unit for which the owner or operator intends to apply or 
applies 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 reported from 
the first hour on May 1, 2000; or
    (B) For a unit that commences operation before January 1, 2003 and 
that is not subject to paragraph (d)(2)(ii)(A) of this section, the 
calendar quarter covering May 1, 2003 through June 30, 2003. The 
NOX mass emission data shall be recorded and reported from 
the 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 the unit 
commences operation. The NOX mass emission data shall be 
recorded and reported from the date and hour when the unit commences 
operation; or
    (D) For a unit that commences operation on or after January 1, 2003 
and not during a control period, the calendar quarter which includes May 
1 through June 30 of the first control period following the date on 
which the unit commences operation. The NOX mass emission 
data shall be recorded and reported from the first hour on May 1 of that 
control period.

[[Page 897]]

    (3) The NOX authorized account representative shall 
submit each quarterly report to the Administrator within 30 days 
following the end of the calendar quarter covered by the report. 
Quarterly reports shall be submitted in the manner specified in subpart 
H of part 75 of this chapter and Sec. 75.64 of this chapter.
    (i) For units subject to an Acid Rain emissions limitation, 
quarterly reports shall include all of the data and information required 
in subpart H of part 75 of this chapter for each NOX Budget 
unit (or group of units using a common stack) and the data and 
information required in subpart G of part 75 of this chapter.
    (ii) For units not subject to an Acid Rain emissions limitation, 
quarterly reports are only required to include all of the data and 
information required in subpart H of part 75 of this chapter for each 
NOX Budget unit (or group of units using a common stack).
    (4) Compliance certification. The NOX authorized account 
representative shall submit to the Administrator a compliance 
certification in support of each quarterly report based on reasonable 
inquiry of those persons with primary responsibility for ensuring that 
all of the unit's emissions are correctly and fully monitored. The 
certification shall state that:
    (i) The monitoring data submitted were recorded in accordance with 
the applicable requirements of this subpart and part 75 of this chapter, 
including the quality assurance procedures and specifications;
    (ii) For a unit with add-on NOX emission controls and for 
all hours where data are substituted in accordance with Sec. 
75.34(a)(1) of this chapter, the add-on emission controls were operating 
within the range of parameters listed in the quality assurance/quality 
control program under appendix B of part 75 of this chapter and the 
substitute values do not systematically underestimate NOX 
emissions; and
    (iii) For a unit that is reporting on a control period basis under 
paragraph (d)(2)(ii) of this section, the NOX emission rate 
and NOX concentration values substituted for missing data 
under subpart D of part 75 of this chapter are calculated using only 
values from a control period and do not systematically underestimate 
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 a 
NOX Budget unit may submit a petition under Sec. 75.66 of 
this chapter to the Administrator requesting approval to apply an 
alternative to any requirement of this subpart.
    (b) Application of an alternative to any requirement of this subpart 
is in accordance with this subpart only to the extent that the petition 
is approved by the Administrator under Sec. 75.66 of this chapter.



Sec. 97.76  Additional requirements to provide heat input data.

    The owner or operator of a NOX Budget unit that monitors 
and reports NOX mass emissions using a NOX 
concentration system and a flow system shall also monitor and report 
heat input rate at the unit level using the procedures 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), is not a 
NOX Budget unit under Sec. 97.4(a), is not a unit exempt 
under Sec. 97.4(b), vents all of its emissions to a stack, and is 
operating, may qualify to be a NOX Budget opt-in unit under 
this subpart. A unit that is a NOX Budget unit under Sec. 
97.4(a), is covered by an exemption under Sec. 97.4(b) or Sec. 97.5 
that is in effect, or is not operating is not eligible to be a 
NOX Budget opt-in unit.



Sec. 97.81  General.

    Except otherwise as provided in this part, a NOX Budget 
opt-in unit shall be treated as a NOX Budget unit for 
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,

[[Page 898]]

or a NOX Budget opt-in unit, located at the same source as 
one or more NOX Budget units, shall have the same 
NOX authorized account representative as such NOX 
Budget units.



Sec. 97.83  Applying for NOX Budget opt-in permit.

    (a) Applying for initial NOX Budget opt-in permit. In 
order to apply for an initial NOX Budget opt-in permit, the 
NOX authorized account representative of a unit qualified 
under Sec. 97.80 may submit to the Administrator and the permitting 
authority at any time, except as provided under Sec. 97.86(g):
    (1) A complete NOX Budget permit application under Sec. 
97.22;
    (2) A monitoring plan submitted in accordance with subpart H of this 
part; and
    (3) A complete account certificate of representation under Sec. 
97.13, if no NOX authorized account representative 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) or Sec. 97.87(b)(1)(i), 
the NOX authorized account representative of a NOX 
Budget opt-in unit shall submit to the Administrator and permitting 
authority a complete NOX Budget permit application under 
Sec. 97.22 to renew the NOX Budget opt-in permit in 
accordance with Sec. 97.21(c) and, if applicable, an updated monitoring 
plan in accordance with subpart H of this part.



Sec. 97.84  Opt-in process.

    The permitting authority will issue or deny an initial 
NOX Budget opt-in permit for a unit for which an application 
for a NOX Budget opt-in permit under Sec. 97.83 is 
submitted, in accordance with Sec. 97.20 and the following:
    (a) Interim review of monitoring plan. The Administrator will 
determine, on an interim basis, the sufficiency of the monitoring plan 
accompanying the initial application for a NOX Budget opt-in 
permit under Sec. 97.83. A monitoring plan is sufficient, for purposes 
of interim review, if the plan appears to contain information 
demonstrating that the NOX emissions rate and heat input rate 
of the unit are monitored and reported in accordance with subpart H of 
this part. A determination of sufficiency shall not be construed as 
acceptance or approval of the unit's monitoring plan.
    (b) If the Administrator determines that the unit's monitoring plan 
is sufficient under paragraph (a) of this section and after completion 
of monitoring system certification under subpart H of this part, the 
NOX emissions rate and the heat input of the unit shall be 
monitored and reported in accordance with subpart H of this part for one 
full control period during which percent monitor data availability is 
not less than 90 percent and during which the unit is in full compliance 
with any applicable State or Federal emissions or emissions-related 
requirements. Solely for purposes of applying the requirements in the 
prior sentence, the unit shall be treated as a ``NOX Budget 
unit'' prior to issuance of a NOX Budget opt-in permit 
covering the unit.
    (c) Based on the information monitored and reported under paragraph 
(b) of this section, the Administrator will calculate the unit's 
baseline heat input, which will equal the unit's total heat input (in 
mmBtu) for the control period, and the unit's baseline NOX 
emissions rate, which will equal the unit's total NOX mass 
emissions (in lb) for the control period divided by the unit's baseline 
heat input.
    (d) Issuance of draft NOX Budget opt-in permit for public 
comment. The permitting authority will issue a draft NOX 
Budget opt-in permit for public comment in accordance 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 the 
permitting authority determines that the unit does not qualify as a 
NOX Budget opt-in unit under Sec. 97.80, the permitting 
authority will issue a draft denial of a NOX Budget opt-in 
permit for public comment for the unit in accordance with Sec. 97.20.
    (f) Withdrawal of application for NOX Budget opt-in 
permit. A NOX authorized account representative of a unit may 
withdraw its application for an initial NOX Budget opt-in 
permit under Sec. 97.83 at any time prior to the issuance of the 
initial NOX Budget opt-in permit. Once the application for a 
NOX Budget opt-in

[[Page 899]]

permit is withdrawn, a NOX authorized account representative 
wanting to reapply must submit a new application for an initial 
NOX Budget permit under Sec. 97.83.
    (g) The unit shall be a NOX Budget opt-in unit and a 
NOX Budget unit starting May 1 of the first control period 
starting 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 all 
elements required for a complete NOX Budget opt-in permit 
application under Sec. 97.22.
    (b) Each NOX Budget opt-in permit is deemed to 
incorporate automatically the definitions of terms under Sec. 97.2 and, 
upon recordation by the Administrator under subpart F or G of this part, 
every allocation, transfer, or deduction of NOX allowances to 
or from the compliance accounts of each NOX Budget opt-in 
unit covered by the NOX Budget opt-in permit or the overdraft 
account of the NOX Budget 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 the NOX 
Budget Trading Program, the NOX authorized account 
representative of a NOX Budget opt-in unit shall submit to 
the Administrator and the permitting authority a request to withdraw 
effective as of a specified date prior to May 1 or after September 30. 
The submission shall be made no later than 90 days prior to the 
requested effective date of withdrawal.
    (b) Conditions for withdrawal. Before a NOX Budget opt-in 
unit covered by a request under paragraph (a) of this section may 
withdraw from the NOX Budget Trading Program and the 
NOX Budget opt-in permit may be terminated under paragraph 
(e) of this section, the following conditions must be met:
    (1) For the control period immediately before the withdrawal is to 
be effective, the NOX authorized account representative must 
submit or must have submitted to the Administrator and the permitting 
authority an annual compliance certification report in accordance with 
Sec. 97.30.
    (2) If the NOX Budget opt-in unit has excess emissions 
for the control period immediately before the withdrawal is to be 
effective, the Administrator will deduct or has deducted from the 
NOX Budget opt-in unit's compliance account, or the overdraft 
account of the NOX Budget source where the NOX 
Budget opt-in unit is located, the full amount required under Sec. 
97.54(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 from the 
NOX Budget opt-in unit's compliance account, or the overdraft 
account of the NOX Budget source where the NOX 
Budget opt-in unit is located, NOX allowances equal in number 
to and allocated for the same or a prior control period as any 
NOX allowances allocated to that source under Sec. 97.88 for 
any control period for which the withdrawal is to be effective. The 
Administrator will close the NOX Budget opt-in unit's 
compliance account and transfer any remaining allowances to a general 
account specified by the owners and operators of the NOX 
Budget opt-in unit.
    (c) A NOX Budget opt-in unit that withdraws from the 
NOX Budget Trading Program shall comply with all requirements 
under the NOX Budget Trading Program concerning all years for 
which such NOX Budget opt-in unit was a NOX Budget 
opt-in unit, even if such requirements arise or must be complied with 
after the withdrawal takes effect.
    (d) Notification. (1) After the requirements for withdrawal under 
paragraphs (a) and (b) of this section are met (including deduction of 
the full amount of NOX allowances required), the 
Administrator will issue a notification to the permitting authority and 
the NOX authorized account representative of the 
NOX Budget opt-in unit of the acceptance of the withdrawal of 
the NOX Budget opt-in unit as of a specified effective date 
that is after such requirements have been met and that is prior to May 1 
or after September 30.
    (2) If the requirements for withdrawal under paragraphs (a) and (b) 
of

[[Page 900]]

this section are not met, the Administrator will issue a notification to 
the permitting authority and the NOX authorized account 
representative of the NOX Budget opt-in unit that the request 
to withdraw is denied. If the NOX Budget opt-in unit's 
request to withdraw is denied, the NOX Budget opt-in unit 
shall remain subject to the requirements for a NOX Budget 
opt-in unit.
    (e) Permit revision. After the Administrator issues a notification 
under paragraph (d)(1) of this section that the requirements for 
withdrawal have been met, the permitting authority will revise the 
NOX Budget permit covering the NOX Budget opt-in 
unit to terminate the NOX Budget opt-in permit as of the 
effective date specified under paragraph (d)(1) of this section. A 
NOX Budget opt-in unit shall continue to be a NOX 
Budget opt-in unit until the effective date of the termination.
    (f) Reapplication upon failure to meet conditions of withdrawal. If 
the Administrator denies the request to withdraw the NOX 
Budget opt-in unit, the NOX authorized account representative 
may submit another request to withdraw in accordance with paragraphs (a) 
and (b) of this section.
    (g) Ability to return to the NOX Budget Trading Program. Once a 
NOX Budget opt-in unit withdraws from the NOX 
Budget Trading Program and its NOX Budget opt-in permit is 
terminated under paragraph (e) of this section, the NOX 
authorized account representative may not submit another application for 
a NOX Budget opt-in permit under Sec. 97.83 for the unit 
prior to the date that is 4 years after the date on which the terminated 
NOX Budget opt-in permit became effective.



Sec. 97.87  Change in regulatory status.

    (a) Notification. When a NOX Budget opt-in unit becomes a 
NOX Budget unit under Sec. 97.4(a), the NOX 
authorized account representative shall notify in writing the permitting 
authority and the Administrator of such change in the NOX 
Budget opt-in unit'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 unit becomes a NOX Budget 
unit under Sec. 97.4(a), the permitting authority will revise the 
NOX Budget opt-in unit's NOX Budget opt-in permit 
to meet the requirements of a NOX Budget permit under Sec. 
97.23 as of an effective date that is the date on which such 
NOX Budget opt-in unit becomes a NOX Budget unit 
under Sec. 97.4(a).
    (ii)(A) The Administrator will deduct from the compliance account 
for the NOX Budget unit under paragraph (b)(1)(i) of this 
section, or the overdraft account of the NOX Budget source 
where the unit is located, NOX allowances equal in number to 
and allocated for the same or a prior control period as:
    (1) Any NOX allowances allocated to the NOX 
Budget unit (as a NOX Budget opt-in unit) under Sec. 97.88 
for any control period after the last control period during which the 
unit's NOX Budget opt-in permit was effective; and
    (2) If the effective date of the NOX Budget permit 
revision under paragraph (b)(1)(i) of this section is during a control 
period, the NOX allowances allocated to the NOX 
Budget unit (as a NOX Budget opt-in unit) under Sec. 97.88 
for the control period multiplied by the number of days in the control 
period starting with the effective date of the permit revision under 
paragraph (b)(1)(i) of this section, divided by the total number of days 
in the control period, and rounded to the nearest whole number of 
NOX allowances as appropriate.
    (B) The NOX authorized account representative shall 
ensure that the compliance account of the NOX Budget unit 
under paragraph (b)(1)(i) of this section, or the overdraft account of 
the NOX Budget source where the unit is located, contains the 
NOX allowances necessary for completion of the deduction 
under paragraph (b)(1)(ii)(A) of this section. If the compliance account 
or overdraft account does not contain the necessary NOX 
allowances, the Administrator will deduct the required number of 
NOX allowances, regardless of the control period for which 
they were allocated, whenever NOX allowances are recorded in 
either account.
    (iii)(A) For every control period during which the NOX 
Budget permit revised under paragraph (b)(1)(i) of this

[[Page 901]]

section is in effect, the NOX Budget unit under paragraph 
(b)(1)(i) of this section will be treated, solely for purposes of 
NOX allowance allocations under Sec. 97.42, as a unit that 
commenced operation on the effective date of the NOX Budget 
permit revision under paragraph (b)(1)(i) of this section and will be 
allocated NOX allowances under Sec. 97.42. The unit's 
deadline under Sec. 97.84(b) for meeting monitoring requirements in 
accordance with subpart H of this part shall not be changed by the 
change in the unit's regulatory status or by the revision of the 
NOX Budget permit under paragraph (b)(1)(i) of this section.
    (B) Notwithstanding paragraph (b)(1)(iii)(A) of this section, if the 
effective date of the NOX Budget permit revision under 
paragraph (b)(1)(i) of this section is during a control period, the 
following number of NOX allowances will be allocated to the 
NOX Budget unit under paragraph (b)(1)(i) of this section 
under Sec. 97.42 for the control period: the number of NOX 
allowances otherwise allocated to the NOX Budget unit under 
Sec. 97.42 for the control period multiplied by the number of days in 
the control period starting with the effective date of the permit 
revision under paragraph (b)(1)(i) of this section, divided by the total 
number of days in the control period, and rounded to the nearest whole 
number of NOX allowances as appropriate.
    (2)(i) When the NOX authorized account representative of 
a NOX Budget opt-in unit does not renew its NOX 
Budget opt-in permit under Sec. 97.83(b), the Administrator will deduct 
from the NOX Budget opt-in unit's compliance account, or the 
overdraft account of the NOX Budget source where the 
NOX Budget opt-in unit is located, NOX allowances 
equal in number to and allocated for the same or a prior control period 
as any NOX allowances allocated to the NOX Budget 
opt-in unit under Sec. 97.88 for any control period after the last 
control period for which the NOX Budget opt-in permit is 
effective. The NOX authorized account representative shall 
ensure that the NOX Budget opt-in unit's compliance account 
or the overdraft account of the NOX Budget source where the 
NOX Budget opt-in unit is located contains the NOX 
allowances necessary for completion of such deduction. If the compliance 
account or overdraft account does not contain the necessary 
NOX allowances, the Administrator will deduct the required 
number of NOX allowances, regardless of the control period 
for which they were allocated, whenever NOX allowances are 
recorded in either account.
    (ii) After the deduction under paragraph (b)(2)(i) of this section 
is completed, the Administrator will close the NOX Budget 
opt-in unit's compliance account. If any NOX allowances 
remain in the compliance account after completion of such deduction and 
any deduction under Sec. 97.54, the Administrator will close the 
NOX Budget opt-in unit's compliance account and transfer any 
remaining allowances to a general account specified by the owners and 
operators of the NOX Budget 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 April 1 immediately before the 
first control period for which the NOX Budget opt-in permit 
is effective, the Administrator will determine by order the 
NOX allowance allocations for the NOX Budget opt-
in unit for the control period in accordance with paragraph (b) of this 
section.
    (2) By no later than April 1, after the first control period for 
which the NOX Budget opt-in permit is in effect, and April 1 
of each year thereafter, the Administrator will determine by order the 
NOX allowance allocations for the NOX Budget opt-
in unit for the next control period, in accordance with paragraph (b) of 
this section.
    (3) The Administrator will make available to the public each 
determination of NOX allowance allocations under paragraph 
(a)(1) or (2) of this section and will provide an opportunity for 
submission of objections to the determination. Objections shall be 
limited to addressing whether the determination is in accordance with 
paragraph (b) of this section. Based on any such objections, the 
Administrator will adjust each determination to the extent necessary to 
ensure that it is in

[[Page 902]]

accordance with paragraph (b) of this section.
    (b) For each control period for which the NOX Budget opt-
in unit has an approved NOX Budget opt-in permit, the 
NOX Budget opt-in unit will be allocated NOX 
allowances in accordance with the following procedures:
    (1) The heat input (in mmBtu) used for calculating NOX 
allowance allocations will be the lesser of:
    (i) The unit's baseline heat input determined pursuant to Sec. 
97.84(c); or
    (ii) The unit's heat input, as determined in accordance with subpart 
H of this part, for the control period in the year prior to the year of 
the control period for which the NOX allocations are being 
calculated.
    (2) The Administrator will allocate NOX allowances to the 
unit in an amount equaling the heat input determined under paragraph 
(b)(1) of this section multiplied by the lesser of the unit's baseline 
NOX emissions rate determined under Sec. 97.84(c) or the 
most stringent State or federal NOX emissions limitation 
applicable to the unit during the control period, divided by 2,000 lb/
ton, and rounded to the nearest whole number of NOX 
allowances as appropriate.



                       Subpart J_Appeal Procedures



Sec. 97.90  Appeal procedures.

    The appeal procedures for the NOX Budget Trading Program 
are set forth in part 78 of this chapter.

[69 FR 21648, Apr. 21, 2004]



      Subpart AA_CAIR NOX Annual Trading Program General Provisions



Sec. 97.101  Purpose.

    This subpart and subparts BB through II set forth the general 
provisions and the designated representative, permitting, allowance, 
monitoring, and opt-in provisions for the Federal Clean Air Interstate 
Rule (CAIR) NOX Annual Trading Program, under section 110 of 
the Clean Air Act and Sec. 52.35 of this chapter, as a means of 
mitigating interstate transport of fine particulates and nitrogen 
oxides.



Sec. 97.102  Definitions.

    The terms used in this subpart and subparts BB through II shall have 
the meanings set forth in this section as follows:
    Account number means the identification number given by the 
Administrator to each CAIR NOX Allowance Tracking System 
account.
    Acid Rain emissions limitation means a limitation on emissions of 
sulfur dioxide or nitrogen oxides under the Acid Rain Program.
    Acid Rain Program means a multi-state sulfur dioxide and nitrogen 
oxides air pollution control and emission reduction program established 
by the Administrator under title IV of the CAA and parts 72 through 78 
of this chapter.
    Actual weighted average NOX emission rate means, for a 
NOX averaging plan under Sec. 76.11 of this chapter and for 
a year:
    (1) The sum of the products of the actual annual average 
NOX emission rate and actual annual heat input (as determined 
in accordance with part 75 of this chapter) for all units in the 
NOX averaging plan for the year; divided by
    (2) The sum of the actual annual heat input (as determined in 
accordance with part 75 of this chapter) for all units in the 
NOX averaging plan for the year.
    Administrator means the Administrator of the United States 
Environmental Protection Agency or the Administrator's duly authorized 
representative.
    Allocate or allocation means, with regard to CAIR NOX 
allowances, the determination by a permitting authority or the 
Administrator of the amount of such CAIR NOX allowances to be 
initially credited to a CAIR NOX 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 the first business day 
thereafter (if March 1 is not a business day), immediately following the 
control period and is the deadline by which a CAIR NOX 
allowance transfer must be submitted for recordation in a CAIR 
NOX source's compliance account in order to be used to meet 
the source's CAIR NOX emissions limitation for such control 
period in accordance with Sec. 97.154.

[[Page 903]]

    Alternate CAIR designated representative means, for a CAIR 
NOX source and each CAIR NOX unit at the source, 
the natural person who is authorized by the owners and operators of the 
source and all such units at the source, in accordance with subparts BB 
and II of this part, to act on behalf of the CAIR designated 
representative in matters pertaining to the CAIR NOX Annual 
Trading Program. If the CAIR NOX source is also a CAIR 
SO2 source, then this natural person shall be the same person 
as the alternate CAIR designated representative under the CAIR 
SO2 Trading Program. If the CAIR NOX source is 
also a CAIR NOX Ozone Season source, then this natural person 
shall be the same person as the alternate CAIR designated representative 
under the CAIR NOX Ozone Season Trading Program. If the CAIR 
NOX source is also subject to the Acid Rain Program, then 
this natural person shall be the same person as the alternate designated 
representative under the Acid Rain Program. If the CAIR NOX 
source is also subject to the Hg Budget Trading Program, then this 
natural person shall be the same person as the alternate Hg designated 
representative under the Hg Budget Trading Program.
    Automated data acquisition and handling system or DAHS means that 
component of the continuous emission monitoring system, or other 
emissions monitoring system approved for use under subpart HH of this 
part, designed to interpret and convert individual output signals from 
pollutant concentration monitors, flow monitors, diluent gas monitors, 
and other component parts of the monitoring system to produce a 
continuous record of the measured parameters in the measurement units 
required by subpart HH of this part.
    Biomass means--
    (1) Any organic material grown for the purpose of being converted to 
energy;
    (2) Any organic byproduct of agriculture that can be converted into 
energy; or
    (3) Any material that can be converted into energy and is 
nonmerchantable for other purposes, that is segregated from other 
nonmerchantable material, and that is;
    (i) A forest-related organic resource, including mill residues, 
precommercial thinnings, slash, brush, or byproduct from conversion 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-fired combustion 
device used to produce heat and to transfer heat to recirculating water, 
steam, or other medium.
    Bottoming-cycle cogeneration unit means a cogeneration unit in which 
the energy input to the unit is first used to produce useful thermal 
energy and at least some of the reject heat from the useful thermal 
energy application or process is then used for electricity production.
    CAIR authorized account representative means, with regard to a 
general account, a responsible natural person who is authorized, in 
accordance with subparts BB, FF, and II of this part, to transfer and 
otherwise dispose of CAIR NOX allowances held in the general 
account and, with regard to a compliance account, the CAIR designated 
representative of the source.
    CAIR designated representative means, for a CAIR NOX 
source and each CAIR NOX unit at the source, the natural 
person who is authorized by the owners and operators of the source and 
all such units at the source, in accordance with subparts BB and II of 
this part, to represent and legally bind each owner and operator in 
matters pertaining to the CAIR NOX Annual Trading Program. If 
the CAIR NOX source is also a CAIR SO2 source, 
then this natural person shall be the same person as the CAIR designated 
representative under the CAIR SO2 Trading Program. If the 
CAIR NOX source is also a CAIR NOX Ozone Season 
source, then this natural person shall be the same person as the CAIR 
designated representative under the CAIR NOX Ozone Season 
Trading Program. If the CAIR NOX source is also subject to 
the Acid Rain Program, then this natural person shall be the

[[Page 904]]

same person as the designated representative under the Acid Rain 
Program. If the CAIR NOX source is also subject to the Hg 
Budget Trading Program, then this natural person shall be the same 
person as the Hg designated representative under the Hg Budget Trading 
Program.
    CAIR NOX allowance means a limited authorization issued by a 
permitting authority or the Administrator under subpart EE of this part 
or Sec. 97.188, or under provisions of a State implementation plan that 
are approved under Sec. 51.123(o)(1) or (2) or (p) of this chapter, to 
emit one ton of nitrogen oxides during a control period of the specified 
calendar year for which the authorization is allocated or of any 
calendar year thereafter under the CAIR NOX Program. An 
authorization to emit nitrogen oxides that is not issued under subpart 
EE of this part, Sec. 97.188, or provisions of a State implementation 
plan that are approved under Sec. 51.123(o)(1) or (2) or (p) of this 
chapter shall not be a CAIR NOX allowance.
    CAIR NOX allowance deduction or deduct CAIR NOX allowances means the 
permanent withdrawal of CAIR NOX allowances by the 
Administrator from a compliance account, e.g., in order to account for a 
specified number of tons of total nitrogen oxides emissions from all 
CAIR NOX units at a CAIR NOX source for a control 
period, determined in accordance with subpart HH of this part, or to 
account for excess emissions.
    CAIR NOX Allowance Tracking System means the system by which the 
Administrator records allocations, deductions, and transfers of CAIR 
NOX allowances under the CAIR NOX Annual Trading 
Program. Such allowances will be allocated, held, deducted, or 
transferred only as whole allowances.
    CAIR NOX Allowance Tracking System account means an account in the 
CAIR NOX Allowance Tracking System established by the 
Administrator for purposes of recording the allocation, holding, 
transferring, or deducting of CAIR NOX allowances.
    CAIR NOX allowances held or hold CAIR NOX allowances means the CAIR 
NOX allowances recorded by the Administrator, or submitted to 
the Administrator for recordation, in accordance with subparts FF, GG, 
and II of this part, in a CAIR NOX Allowance Tracking System 
account.
    CAIR NOX Annual Trading Program means a multi-state nitrogen oxides 
air pollution control and emission reduction program established by the 
Administrator in accordance with subparts AA through II of this part and 
Sec. Sec. 51.123(p) and 52.35 of this chapter or approved and 
administered by the Administrator in accordance with subparts AA through 
II of part 96 of this chapter and Sec. 51.123(o)(1) or (2) of this 
chapter, as a means of mitigating interstate transport of fine 
particulates and nitrogen oxides.
    CAIR NOX emissions limitation means, for a CAIR NOX 
source, the tonnage equivalent, in NOX emissions in a control 
period, of the CAIR NOX allowances available for deduction 
for the source under Sec. 97.154 (a) and (b) for the control period.
    CAIR NOX Ozone Season source means a source that is subject to the 
CAIR NOX Ozone Season Trading Program.
    CAIR NOX Ozone Season Trading Program means a multi-state nitrogen 
oxides air pollution control and emission reduction program established 
by the Administrator in accordance with subparts AAAA through IIII of 
this part and Sec. Sec. 51.123(ee) and 52.35 of this chapter or 
approved and administered by the Administrator in accordance with 
subparts AAAA through 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 
mitigating interstate transport of ozone and nitrogen oxides.
    CAIR NOX source means a source that includes one or more CAIR 
NOX units.
    CAIR NOX unit means a unit that is subject to the CAIR 
NOX Annual Trading Program under Sec. 97.104 and, except for 
purposes of Sec. 97.105 and subpart EE of this part, a CAIR 
NOX opt-in unit under subpart II of this part.
    CAIR permit means the legally binding and federally enforceable 
written document, or portion of such document, issued by the permitting 
authority under subpart CC of this part, including any permit revisions, 
specifying the CAIR NOX Annual Trading Program requirements 
applicable to a CAIR NOX source, to each CAIR NOX 
unit at the source, and to the owners

[[Page 905]]

and operators and the CAIR designated representative of the source and 
each such unit.
    CAIR SO2 source means a source that is subject to the CAIR 
SO2 Trading Program.
    CAIR SO2 Trading Program means a multi-state sulfur dioxide air 
pollution control and emission reduction program established by the 
Administrator in accordance with subparts AAA through III of this part 
and Sec. Sec. 51.124(r) and 52.36 of this chapter or approved and 
administered by the Administrator in accordance with subparts AAA 
through III of part 96 of this chapter and Sec. 51.124(o)(1) or (2) of 
this chapter, as a means of mitigating interstate transport of fine 
particulates 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 business function 
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 or 
the proprietor respectively; or
    (3) For a local government entity or State, Federal, or other public 
agency, a principal executive officer or ranking elected official.
    Clean Air Act or CAA means the Clean Air Act, 42 U.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, or chemical 
processing of coal.
    Coal-fired means:
    (1) Except for purposes of subpart EE of this part, combusting any 
amount of coal or coal-derived fuel, alone or in combination with any 
amount of any other fuel, during any year; or
    (2) For purposes of subpart EE of this part, combusting any amount 
of coal or coal-derived fuel, alone or in combination with any amount of 
any other fuel, during a specified year.
    Cogeneration unit means a stationary, fossil-fuel-fired boiler or 
stationary, fossil-fuel-fired combustion turbine:
    (1) Having equipment used to produce electricity and useful thermal 
energy for industrial, commercial, heating, or cooling purposes through 
the sequential use of energy; and
    (2) Producing during the 12-month period starting on the date the 
unit first produces electricity and during any calendar year after the 
calendar 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 energy output; and
    (B) Useful power that, when added to one-half of useful thermal 
energy produced, is not less then 42.5 percent of total energy input, if 
useful thermal energy produced is 15 percent or more of total energy 
output, or not less than 45 percent of total energy input, if useful 
thermal energy produced is less than 15 percent of total energy output.
    (ii) For a bottoming-cycle cogeneration unit, useful power not 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 energy input 
from all fuel except biomass if the unit is a boiler.
    Combustion turbine means:
    (1) An enclosed device comprising a compressor, a combustor, and a 
turbine and in which the flue gas resulting from the combustion of fuel 
in the combustor passes through the turbine, rotating the turbine; and
    (2) If the enclosed device under paragraph (1) of this definition is 
combined cycle, any associated duct burner, heat recovery steam 
generator, and steam turbine.
    Commence commercial operation means, with regard to a unit:
    (1) To have begun to produce steam, gas, or other heated medium used 
to generate electricity for sale or use, including test generation, 
except as provided in Sec. 97.105 and Sec. 97.184(h).
    (i) For a unit that is a CAIR NOX unit under Sec. 97.104 
on the later of November 15, 1990 or the date the unit commences 
commercial operation as defined in paragraph (1) of this definition and 
that subsequently undergoes a physical change (other than replacement of 
the unit by a unit at the same source),

[[Page 906]]

such date shall remain the date of commencement of commercial operation 
of the unit, which shall continue to be treated as the same unit.
    (ii) For a unit that is a CAIR NOX unit under Sec. 
97.104 on the later of November 15, 1990 or the date the unit commences 
commercial operation as defined in paragraph (1) of this definition and 
that is subsequently replaced by a unit at the same source (e.g., 
repowered), such date shall remain the replaced unit's date of 
commencement of commercial operation, and the replacement unit shall be 
treated as a separate unit with a separate date 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 as 
provided in Sec. 97.105, for a unit that is not a CAIR NOX 
unit under Sec. 97.104 on the later of November 15, 1990 or the date 
the unit commences commercial operation as defined in paragraph (1) of 
this definition, the unit's date for commencement of commercial 
operation shall be the date on which the unit becomes a CAIR 
NOX unit under Sec. 97.104.
    (i) For a unit with a date for commencement of commercial operation 
as defined in paragraph (2) of this 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 commercial operation of the unit, which shall continue 
to be treated as the same unit.
    (ii) For a unit with a date for commencement of commercial operation 
as defined in paragraph (2) of this definition and that is subsequently 
replaced by a unit at the same source (e.g., repowered), such date shall 
remain the replaced unit's date of commencement of commercial operation, 
and the replacement unit shall be treated as a separate unit with a 
separate date for commencement 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 combustion 
chamber, except as provided in Sec. 97.184(h).
    (2) For a unit that undergoes a physical change (other than 
replacement of the unit by a unit at the same source) after the date the 
unit commences operation as defined in paragraph (1) of this definition, 
such date shall remain the date of commencement of operation of the 
unit, which shall continue to be treated as the same unit.
    (3) For a unit that is replaced by a unit at the same source (e.g., 
repowered) after the date the unit commences operation as defined in 
paragraph (1) of this definition, such date shall remain the replaced 
unit's date of commencement of operation, and the replacement unit shall 
be treated as a separate unit with a separate date for commencement of 
operation as defined in paragraph (1), (2), or (3) of this definition as 
appropriate, except as provided in Sec. 97.184(h).
    Common stack means a single flue through which emissions from 2 or 
more units are exhausted.
    Compliance account means a CAIR NOX Allowance Tracking 
System account, established by the Administrator for a CAIR 
NOX source under subpart FF or II of this part, in which any 
CAIR NOX allowance allocations for the CAIR NOX 
units at the source are initially recorded and in which are held any 
CAIR NOX allowances available for use for a control period in 
order to meet the source's CAIR NOX emissions limitation in 
accordance with Sec. 97.154.
    Continuous emission monitoring system or CEMS means the equipment 
required under subpart HH of this part to sample, analyze, measure, and 
provide, by means of readings recorded at least once every 15 minutes 
(using an automated data acquisition and handling system (DAHS)), a 
permanent record of nitrogen oxides emissions, stack gas volumetric flow 
rate, stack gas moisture content, and oxygen or carbon dioxide 
concentration (as applicable), in a manner consistent with part 75 of 
this chapter. The following systems are the principal types of 
continuous emission monitoring systems required under subpart HH of this 
part:
    (1) A flow monitoring system, consisting of a stack flow rate 
monitor and an automated data acquisition and

[[Page 907]]

handling system and providing a permanent, continuous record of stack 
gas volumetric flow rate, in standard cubic feet per hour (scfh);
    (2) A nitrogen oxides concentration monitoring system, consisting of 
a NOX pollutant concentration monitor and an automated data 
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 pollutant 
concentration monitor, a diluent gas (CO2 or O2) 
monitor, and an automated data acquisition and handling system and 
providing a permanent, continuous record of NOX 
concentration, in parts per million (ppm), diluent gas concentration, in 
percent CO2 or O2, and NOX emission 
rate, in pounds per million British thermal units (lb/mmBtu);
    (4) A moisture monitoring system, as defined in Sec. 75.11(b)(2) of 
this chapter and providing a permanent, continuous record of the stack 
gas moisture content, in percent H2O;
    (5) A carbon dioxide monitoring system, consisting of a 
CO2 pollutant concentration monitor (or an oxygen monitor 
plus suitable mathematical equations from which the CO2 
concentration is derived) and an automated data acquisition and handling 
system and providing a permanent, continuous record of CO2 
emissions, in percent CO2; and
    (6) An oxygen monitoring system, consisting of an O2 
concentration monitor and an automated data acquisition and handling 
system and providing a permanent, continuous record of O2, in 
percent O2.
    Control period means the period beginning January 1 of a calendar 
year, except as provided in Sec. 97.106(c)(2), and ending on December 
31 of the same year, inclusive.
    Emissions means air pollutants exhausted from a unit or source into 
the atmosphere, as measured, recorded, and reported to the Administrator 
by the CAIR designated representative and as determined by the 
Administrator in accordance with subpart HH of this part.
    Excess emissions means any ton of nitrogen oxides emitted by the 
CAIR NOX units at a CAIR NOX source during a 
control period that exceeds the CAIR NOX emissions limitation 
for the source.
    Fossil fuel means natural gas, petroleum, coal, or any form of 
solid, liquid, or gaseous fuel derived from such material.
    Fossil-fuel-fired means, with regard to a unit, combusting any 
amount of fossil fuel in any calendar year.
    Fuel oil means any petroleum-based fuel (including diesel fuel or 
petroleum derivatives such as oil tar) and any recycled or blended 
petroleum products or petroleum by-products used as a fuel whether in a 
liquid, solid, or gaseous state.
    General account means a CAIR NOX Allowance Tracking 
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 cogeneration unit, 
electricity made available for use, including any such electricity used 
in the power production process (which process includes, but is not 
limited to, any on-site processing or treatment of 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 fuel feed 
rate into a combustion device (in lb of fuel/time), as measured, 
recorded, and reported to the Administrator by the CAIR designated 
representative and determined by the Administrator in accordance with 
subpart HH of this part and excluding 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 specific fuel, the 
amount of heat input attributed to the fuel (in mmBtu) divided by the 
unit operating time (in hr) during which the unit combusts the fuel.
    Hg Budget Trading Program means a multi-state Hg air pollution 
control

[[Page 908]]

and emission reduction program approved and administered by the 
Administrator in accordance subpart HHHH of part 60 of this chapter and 
Sec. 60.24(h)(6), or established by the Administrator under section 111 
of the Clean Air Act, as a means of reducing national Hg emissions.
    Life-of-the-unit, firm power contractual arrangement means a unit 
participation power sales agreement under which a utility or industrial 
customer reserves, or is entitled to receive, a specified amount or 
percentage of nameplate capacity and associated energy generated by any 
specified unit and pays its proportional amount of such 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, including 
contracts that permit an election for early termination; or
    (3) For a period no less than 25 years or 70 percent of the economic 
useful life of the unit determined as of the time the unit is built, 
with option rights to purchase or release some portion of the nameplate 
capacity and associated energy generated by the unit at the end of the 
period.
    Maximum design heat input means the maximum amount of fuel per hour 
(in Btu/hr) that a unit is capable of combusting on a steady state basis 
as of the initial installation of the unit as specified by the 
manufacturer of the unit.
    Monitoring system means any monitoring system that meets the 
requirements of subpart HH of this part, including a continuous 
emissions monitoring system, an alternative monitoring system, or an 
excepted monitoring system under part 75 of this chapter.
    Most stringent State or Federal NOX emissions limitation 
means, with regard to a unit, the lowest NOX emissions 
limitation (in terms of lb/mmBtu) that is applicable to the unit under 
State or Federal law, regardless of the averaging period to which the 
emissions limitation applies.
    Nameplate capacity means, starting from the initial installation of 
a generator, the maximum electrical generating output (in MWe) that the 
generator is capable of producing on a steady state basis and during 
continuous operation (when not restricted by seasonal or other 
deratings) as of such installation as specified by the manufacturer of 
the generator or, starting from the completion of any subsequent 
physical change in the generator resulting in an increase in the maximum 
electrical generating output (in MWe) that the generator is capable of 
producing on a steady state basis and during continuous operation (when 
not restricted by seasonal or other deratings), such increased maximum 
amount as of such completion as 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 heat input in a 
specified year and not qualifying as coal-fired.
    Operator means any person who operates, controls, or supervises a 
CAIR NOX unit or a CAIR NOX source 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 CAIR 
NOX unit at a source, respectively:
    (i) Any holder of any portion of the legal or equitable title in a 
CAIR NOX unit at the source or the CAIR NOX unit;
    (ii) Any holder of a leasehold interest in a CAIR NOX 
unit at the source or the CAIR NOX unit; or
    (iii) Any purchaser of power from a CAIR NOX unit at the 
source or the CAIR NOX unit 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 an equitable interest through such lessor, whose 
rental payments are not based (either directly or indirectly) on the 
revenues or income from such CAIR NOX unit; or
    (2) With regard to any general account, any person who has an 
ownership interest with respect to the CAIR NOX allowances 
held in the general account and who is subject to the binding

[[Page 909]]

agreement for the CAIR authorized account representative to represent 
the person's ownership interest with respect to CAIR NOX 
allowances.
    Permitting authority means the State air pollution control agency, 
local agency, other State agency, or other agency authorized by the 
Administrator to issue or revise permits to meet the requirements of the 
CAIR NOX Annual Trading Program or, if no such agency has 
been so authorized, the Administrator.
    Potential electrical output capacity means 33 percent of a unit's 
maximum design heat input, divided by 3,413 Btu/kWh, divided by 1,000 
kWh/MWh, and multiplied by 8,760 hr/yr.
    Receive or receipt of means, when referring to the permitting 
authority or the Administrator, to come into possession of a document, 
information, or correspondence (whether sent in hard copy or by 
authorized electronic transmission), as indicated in an official log, or 
by a notation made on the document, information, or correspondence, by 
the permitting authority or the Administrator in the regular course of 
business.
    Recordation, record, or recorded means, with regard to CAIR 
NOX allowances, the movement of CAIR NOX 
allowances by the Administrator into or between CAIR NOX 
Allowance Tracking System accounts, for purposes of allocation, 
transfer, or deduction.
    Reference method means any direct test method of sampling and 
analyzing for an air pollutant as specified in Sec. 75.22 of this 
chapter.
    Replacement, replace, or replaced means, with regard to a unit, the 
demolishing of a unit, or the permanent shutdown and permanent disabling 
of a unit, and the construction of another unit (the replacement unit) 
to be used instead of the demolished or shutdown unit (the replaced 
unit).
    Repowered means, with regard to a unit, replacement of a coal-fired 
boiler with one of the following coal-fired technologies at the 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 the 
Secretary of Energy, a derivative of one or more of the technologies 
under paragraphs (1) through (5) of this definition and any other coal-
fired technology capable of controlling multiple combustion emissions 
simultaneously with improved boiler or generation efficiency and with 
significantly greater waste reduction relative to the performance of 
technology in widespread commercial use as of January 1, 2005.
    Sequential use of energy means:
    (1) For a topping-cycle cogeneration unit, the use of reject heat 
from electricity production in a useful thermal energy application or 
process; or
    (2) For a bottoming-cycle cogeneration unit, the use of reject heat 
from useful thermal energy application or process in electricity 
production.
    Serial number means, for a CAIR NOX allowance, the unique 
identification number assigned to each CAIR NOX allowance by 
the Administrator.
    Solid waste incineration unit means a stationary, fossil-fuel-fired 
boiler or stationary, fossil-fuel-fired combustion turbine that is a 
``solid waste incineration unit'' as defined in section 129(g)(1) of the 
Clean Air Act.
    Source means all buildings, structures, or installations located in 
one or more contiguous or adjacent properties under common control 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 a single ``facility.''
    State means one of the States or the District of Columbia that is 
subject to the CAIR NOX Annual Trading Program 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 accordance with the 
applicable regulation:
    (1) In person;
    (2) By United States Postal Service; or
    (3) By other means of dispatch or transmission and delivery. 
Compliance

[[Page 910]]

with any ``submission'' or ``service'' deadline shall be determined by 
the date of dispatch, transmission, or mailing and not the date of 
receipt.
    Title V operating permit means a permit issued under title V of the 
Clean Air Act and part 70 or part 71 of this chapter.
    Title V operating permit regulations means the regulations that the 
Administrator has approved or issued as meeting the requirements of 
title V of the Clean Air Act and part 70 or 71 of this chapter.
    Ton means 2,000 pounds. For the purpose of determining compliance 
with the CAIR NOX emissions limitation, total tons of 
nitrogen oxides emissions for a control period shall be calculated as 
the sum of all recorded hourly emissions (or the mass equivalent of the 
recorded hourly emission rates) in accordance with subpart HH of this 
part, but with any remaining fraction of a ton equal to or greater than 
0.50 tons deemed to equal one ton and any remaining fraction of a ton 
less than 0.50 tons deemed to equal zero tons.
    Topping-cycle cogeneration unit means a cogeneration unit in which 
the energy input to the unit is first used to produce useful power, 
including electricity, and at least some of the reject heat from the 
electricity production is then used to provide useful thermal energy.
    Total energy input means, with regard to a cogeneration unit, total 
energy of all forms supplied to the cogeneration unit, excluding energy 
produced by the cogeneration unit itself. Each form of energy supplied 
shall be measured by the lower heating value of that 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 cogeneration unit, the 
sum of useful power and useful thermal energy produced by the 
cogeneration unit.
    Unit means a stationary, fossil-fuel-fired boiler or combustion 
turbine or other stationary, fossil-fuel-fired combustion device.
    Unit operating day means a calendar day in which a unit combusts any 
fuel.
    Unit operating hour or hour of unit operation means an hour 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 any such energy 
used in the power production process (which process includes, but is not 
limited to, any on-site processing or treatment of fuel combusted at the 
unit and any on-site emission controls).
    Useful thermal energy means, with regard to a cogeneration unit, 
thermal energy that is:
    (1) Made available to an industrial or commercial process (not a 
power production process), excluding any heat contained in condensate 
return or makeup water;
    (2) Used in a heating application (e.g., space heating or domestic 
hot water heating); or
    (3) Used in a space cooling application (i.e., thermal energy used 
by an absorption chiller).
    Utility power distribution system means the portion of an 
electricity grid owned or operated by a utility and dedicated to 
delivering 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 and 
subparts 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

[[Page 911]]



Sec. 97.104  Applicability

    (a) Except as provided in paragraph (b) of this section:
    (1) The following units in a State shall be CAIR NOX 
units, and any source that includes one or more such units shall be a 
CAIR NOX source, subject to the requirements of this subpart 
and subparts BB through HH of this part: any stationary, fossil-fuel-
fired boiler or stationary, fossil-fuel-fired combustion turbine serving 
at any time, since the later of November 15, 1990 or the start-up of the 
unit's combustion chamber, a generator with nameplate 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 NOX 
unit begins to combust fossil fuel or to serve a generator with 
nameplate capacity of more than 25 MWe producing electricity for sale, 
the unit shall become a CAIR NOX unit as provided in 
paragraph (a)(1) of this section on the first date on which it both 
combusts fossil fuel and serves such generator.
    (b) The units in a State that meet the requirements set forth in 
paragraph (b)(1)(i), (b)(2)(i), or (b)(2)(ii) of this section shall not 
be CAIR NOX units:
    (1)(i) Any unit that is a CAIR NOX unit under paragraph 
(a)(1) or (2) of this section:
    (A) Qualifying as a cogeneration unit during the 12-month period 
starting on the date the unit first produces electricity and continuing 
to qualify as a cogeneration unit; and
    (B) Not serving at any time, since the later of November 15, 1990 or 
the start-up of the unit's combustion chamber, a generator with 
nameplate capacity of more than 25 MWe supplying in any calendar year 
more than one-third of the unit's potential electric output capacity or 
219,000 MWh, whichever is greater, to any utility power distribution 
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 electricity and 
meets the requirements of paragraphs (b)(1)(i) of this section for at 
least one calendar year, but subsequently no longer meets all such 
requirements, the unit shall become a CAIR NOX unit starting 
on the earlier of January 1 after the first calendar year during which 
the unit first no longer qualifies as a cogeneration unit or January 1 
after the first calendar year during which 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 unit under paragraph 
(a)(1) or (2) of this section commencing operation before January 1, 
1985:
    (A) Qualifying as a solid waste incineration unit; and
    (B) With an average annual fuel consumption of non-fossil fuel for 
1985-1987 exceeding 80 percent (on a Btu basis) and an average annual 
fuel consumption of non-fossil fuel for any 3 consecutive calendar 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 January 
1, 1985:
    (A) Qualifying as a solid waste incineration unit; and
    (B) With an average annual fuel consumption of non-fossil fuel for 
the first 3 calendar years of operation exceeding 80 percent (on a Btu 
basis) and an average annual fuel consumption of non-fossil fuel for any 
3 consecutive calendar years after 1990 exceeding 80 percent (on a Btu 
basis).
    (iii) If a unit qualifies as a solid waste incineration unit and 
meets the requirements of paragraph (b)(2)(i) or (ii) of this section 
for at least 3 consecutive calendar years, but subsequently no longer 
meets all such requirements, the unit shall become a CAIR NOX 
unit starting on the earlier of January 1 after the first calendar year 
during which the unit first no longer qualifies as a solid waste 
incineration unit or January 1 after the first 3 consecutive calendar 
years after 1990 for which the unit has an average annual fuel 
consumption of fossil fuel of 20 percent or more.
    (c) A certifying official of an owner or operator of any unit may 
petition the Administrator at any time for a determination concerning 
the applicability, under paragraphs (a) and (b) of this section, of the 
CAIR NOX Annual Trading Program to the unit.

[[Page 912]]

    (1) Petition content. The petition shall be in writing and include 
the identification of the unit and the relevant facts about the unit. 
The petition and any other documents provided to the Administrator in 
connection with the petition shall include the following certification 
statement, signed by the certifying official: ``I am authorized to make 
this submission on behalf of the owners and operators of the unit for 
which the submission is made. I certify under penalty of law that I have 
personally examined, and am familiar with, the statements and 
information submitted in this document and all its attachments. Based on 
my inquiry of those individuals with primary responsibility for 
obtaining the information, I certify that the statements and information 
are to the best of my knowledge and belief true, accurate, and complete. 
I am aware that there are significant penalties for submitting false 
statements and information or omitting required statements and 
information, including the possibility of fine or imprisonment.''
    (2) Submission. The petition and any other documents provided in 
connection with the petition shall be submitted to the Director of the 
Clean Air Markets Division (or its successor), U.S. Environmental 
Protection Agency, who will act on the petition as the Administrator's 
duly authorized representative.
    (3) Response. The Administrator will issue a written response to the 
petition and may request supplemental information relevant to such 
petition. The Administrator's determination concerning the 
applicability, under paragraphs (a) and (b) of this section, of the CAIR 
NOX Annual Trading Program to the unit shall be binding on 
the permitting authority unless the petition or other information or 
documents provided in connection with the petition are found to have 
contained significant, relevant errors or omissions.



Sec. 97.105  Retired unit exemption.

    (a)(1) Any CAIR NOX unit that is permanently retired and 
is not a CAIR NOX opt-in unit under subpart II of this part 
shall be exempt from the CAIR NOX Annual Trading Program, 
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 shall 
become effective the day on which the CAIR NOX unit is 
permanently retired. Within 30 days of the unit's permanent retirement, 
the CAIR designated representative shall submit a statement to the 
permitting authority otherwise responsible for administering any CAIR 
permit for the unit and shall submit a copy of the statement to the 
Administrator. The statement shall state, in a format prescribed by the 
permitting authority, that the unit was permanently retired on a 
specific date and will comply with the requirements of paragraph (b) of 
this section.
    (3) After receipt of the statement under paragraph (a)(2) of this 
section, the permitting authority will amend any permit under subpart CC 
of this part covering the source at which the unit is located to add 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 on the date 
that the exemption takes effect.
    (2) The Administrator or the permitting authority will allocate CAIR 
NOX allowances under subpart EE of this 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 this 
section shall retain, at the source that includes the unit, records 
demonstrating that the unit is permanently retired. The 5-year period 
for keeping records may be extended for cause, at any time before the 
end of the period, in writing by the permitting authority or the 
Administrator. The owners and operators bear the burden of proof that 
the unit is permanently retired.
    (4) The owners and operators and, to the extent applicable, the CAIR 
designated representative of a unit exempt under paragraph (a) of this 
section shall comply with the requirements of

[[Page 913]]

the CAIR NOX Annual Trading Program concerning all periods 
for which 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 located at 
a source that is required, or but for this exemption would be required, 
to have a title V operating permit shall not resume operation unless the 
CAIR designated representative of the source submits a complete CAIR 
permit application under Sec. 97.122 for the unit not less than 18 
months (or such lesser time provided by the permitting authority) before 
the later of January 1, 2009 or the date on which the unit resumes 
operation.
    (6) On the earlier of the following dates, a unit exempt under 
paragraph (a) of this section shall lose its exemption:
    (i) The date on which the CAIR designated representative submits a 
CAIR permit application for the unit under paragraph (b)(5) of this 
section;
    (ii) The date on which the CAIR designated representative is 
required under paragraph (b)(5) of this section to submit a CAIR permit 
application for the unit; or
    (iii) The date on which the unit resumes operation, if the CAIR 
designated representative is not required to submit a CAIR permit 
application for the unit.
    (7) For the purpose of applying monitoring, reporting, and 
recordkeeping requirements under subpart HH of this part, a unit that 
loses its exemption under paragraph (a) of this section shall be treated 
as a unit that commences commercial operation on the first date on which 
the unit resumes operation.



Sec. 97.106  Standard requirements.

    (a) Permit requirements. (1) The CAIR designated representative of 
each CAIR NOX source required to have a title V operating 
permit and each CAIR NOX unit required to have a title V 
operating permit at the source shall:
    (i) Submit to the permitting authority a complete CAIR permit 
application under Sec. 97.122 in accordance with the deadlines 
specified in Sec. 97.121; and
    (ii) Submit in a timely manner any supplemental information that the 
permitting authority determines is necessary in order to review a CAIR 
permit application and issue or deny a CAIR permit.
    (2) The owners and operators of each CAIR NOX source 
required to have a title V operating permit and each CAIR NOX 
unit required to have a title V operating permit at the source shall 
have a CAIR permit issued by the permitting authority under subpart CC 
of this part for the source and operate the source and the unit in 
compliance with such CAIR permit.
    (3) Except as provided in subpart II of this part, the owners and 
operators of a CAIR NOX source that is not otherwise required 
to have a title V operating permit and each CAIR NOX unit 
that is not otherwise required to have a title V operating permit are 
not required to submit a CAIR permit application, and to have a CAIR 
permit, under subpart CC of this part for such CAIR NOX 
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 unit at the 
source shall comply with the monitoring, reporting, and recordkeeping 
requirements of subpart HH of this part.
    (2) The emissions measurements recorded and reported in accordance 
with subpart HH of this part shall be used to determine compliance by 
each CAIR NOX source with the CAIR NOX emissions 
limitation under paragraph (c) of this section.
    (c) Nitrogen oxides emission requirements. (1) As of the allowance 
transfer deadline for a control period, the owners and operators of each 
CAIR NOX source and each CAIR NOX unit at the 
source shall hold, in the source's compliance account, CAIR 
NOX allowances available for compliance deductions for the 
control period under Sec. 97.154(a) in an amount not less than the tons 
of total nitrogen oxides emissions for the control period from all CAIR 
NOX units at the source, as determined in accordance with 
subpart HH of this part.
    (2) A CAIR NOX unit shall be subject to the requirements 
under paragraph

[[Page 914]]

(c)(1) of this section for the control period starting on the later of 
January 1, 2009 or the deadline for meeting the unit's monitor 
certification requirements under Sec. 97.170(b)(1), (2), or (5) and for 
each control period thereafter.
    (3) A CAIR NOX allowance shall not be deducted, for 
compliance with the requirements under paragraph (c)(1) of this section, 
for a control period in a calendar year before the year for which the 
CAIR NOX allowance was allocated.
    (4) CAIR NOX allowances shall be held in, deducted from, 
or transferred into or among CAIR NOX Allowance Tracking 
System accounts in accordance with subparts EE, FF, GG, and II of this 
part.
    (5) A CAIR NOX allowance is a limited authorization to 
emit one ton of nitrogen oxides in accordance with the CAIR 
NOX Annual Trading Program. No provision of the CAIR 
NOX Annual Trading Program, the CAIR permit application, the 
CAIR permit, or an exemption under Sec. 97.105 and no provision of law 
shall be construed to limit the authority of the United States to 
terminate or limit such authorization.
    (6) A CAIR NOX allowance does not constitute a property 
right.
    (7) Upon recordation by the Administrator under subpart EE, FF, GG, 
or II of this part, every allocation, transfer, or deduction of a CAIR 
NOX allowance to or from a CAIR NOX source's 
compliance account is incorporated automatically in any CAIR permit of 
the source.
    (d) Excess emissions requirements. If a CAIR NOX source 
emits nitrogen oxides during any control period in excess of the CAIR 
NOX emissions limitation, then:
    (1) The owners and operators of the source and each CAIR 
NOX unit at the source shall surrender the CAIR 
NOX allowances required for deduction under Sec. 
97.154(d)(1) and pay any fine, penalty, or assessment or 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 control 
period shall constitute a separate violation of this subpart, the Clean 
Air Act, and applicable State law.
    (e) Recordkeeping and reporting requirements. (1) Unless otherwise 
provided, the owners and operators of the CAIR NOX source and 
each CAIR NOX unit at the source shall keep on site at the 
source each of the following documents for a period of 5 years from the 
date the document is created. This period may be extended for cause, at 
any time before the end of 5 years, in writing by the permitting 
authority or the Administrator.
    (i) The certificate of representation under Sec. 97.113 for the 
CAIR designated representative for the source and each CAIR 
NOX unit at the source and all documents that demonstrate the 
truth of the statements in the certificate of representation; provided 
that the certificate and documents shall be retained on site at the 
source beyond such 5-year period until such documents are superseded 
because of the submission of a new certificate of representation under 
Sec. 97.113 changing the CAIR designated representative.
    (ii) All emissions monitoring information, in accordance with 
subpart HH of this part, provided that to the extent that subpart HH of 
this part provides for a 3-year period for recordkeeping, the 3-year 
period shall apply.
    (iii) Copies of all reports, compliance certifications, and other 
submissions and all records made or required under the CAIR 
NOX Annual Trading Program.
    (iv) Copies of all documents used to complete a CAIR permit 
application and any other submission under the CAIR NOX 
Annual Trading Program or to demonstrate compliance with the 
requirements of the CAIR NOX Annual Trading Program.
    (2) The CAIR designated representative of a CAIR NOX 
source and each CAIR NOX unit at the source shall submit the 
reports required under the CAIR NOX Annual Trading Program, 
including those under subpart HH of this part.
    (f) Liability. (1) Each CAIR NOX source and each CAIR 
NOX unit shall meet the requirements of the CAIR 
NOX Annual Trading Program.
    (2) Any provision of the CAIR NOX Annual Trading Program 
that applies to a CAIR NOX source or the CAIR designated 
representative of a CAIR NOX source shall also apply to the 
owners

[[Page 915]]

and operators of such source and of the CAIR NOX units at the 
source.
    (3) Any provision of the CAIR NOX Annual Trading Program 
that applies to a CAIR NOX unit or the CAIR designated 
representative of a CAIR NOX unit shall also apply to the 
owners and operators of such unit.
    (g) Effect on other authorities. No provision of the CAIR 
NOX Annual Trading Program, a CAIR permit application, a CAIR 
permit, or an exemption under Sec. 97.105 shall be construed as 
exempting or excluding the owners and operators, and the CAIR designated 
representative, of a CAIR NOX source or CAIR NOX 
unit from compliance with any other provision of the applicable, 
approved State implementation plan, a federally enforceable permit, or 
the Clean Air Act.



Sec. 97.107  Computation of time.

    (a) Unless otherwise stated, any time period scheduled, under the 
CAIR NOX Annual Trading Program, to begin on the occurrence 
of an act or event shall begin on the day the act or event occurs.
    (b) Unless otherwise stated, any time period scheduled, under the 
CAIR NOX Annual Trading Program, to begin before the 
occurrence of an act or event shall be computed so that the period ends 
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 a weekend 
or a State or Federal holiday, the time period shall be extended to the 
next business day.



Sec. 97.108  Appeal procedures.

    The appeal procedures for decisions of the Administrator under the 
CAIR NOX Annual Trading Program are set forth in part 78 of 
this chapter.



     Subpart BB_CAIR Designated Representative for CAIR NOX Sources



Sec. 97.110  Authorization and responsibilities of CAIR designated 

representative.

    (a) Except as provided under Sec. 97.111, each CAIR NOX 
source, including all CAIR NOX units at the source, shall 
have one and only one CAIR designated representative, with regard to all 
matters under the CAIR NOX Annual Trading Program concerning 
the source or any CAIR NOX unit at the source.
    (b) The CAIR designated representative of the CAIR NOX 
source shall be selected by an agreement binding on the owners and 
operators of the source and all CAIR NOX units at the source 
and shall act in accordance with the certification statement in Sec. 
97.113(a)(4)(iv).
    (c) Upon receipt by the Administrator of a complete certificate of 
representation under Sec. 97.113, the CAIR designated representative of 
the source shall represent and, by his or her representations, actions, 
inactions, or submissions, legally bind each owner and operator of the 
CAIR NOX source represented and each CAIR NOX unit 
at the source in all matters pertaining to the CAIR NOX 
Annual Trading Program, notwithstanding any agreement between the CAIR 
designated representative and such owners and operators. The owners and 
operators shall be bound by any decision or order issued to the CAIR 
designated representative by the permitting authority, the 
Administrator, or a court regarding the source or unit.
    (d) No CAIR permit will be issued, no emissions data reports will be 
accepted, and no CAIR NOX Allowance Tracking System account 
will be established for a CAIR NOX unit at a source, until 
the Administrator has received a complete certificate of representation 
under Sec. 97.113 for a CAIR designated representative of the source 
and the CAIR NOX units at the source.
    (e)(1) Each submission under the CAIR NOX Annual Trading 
Program shall be submitted, signed, and certified by the CAIR designated 
representative for each CAIR NOX source on behalf of which 
the submission is made. Each such submission shall include the following 
certification statement by the CAIR designated representative: ``I am 
authorized to make this submission on behalf of the owners and operators 
of the source or units for which the submission is made. I certify under 
penalty of law that I have personally examined, and am familiar with, 
the statements and information

[[Page 916]]

submitted in this document and all its attachments. Based on my inquiry 
of those individuals with primary responsibility for obtaining the 
information, I certify that the statements and information are to the 
best of my knowledge and belief true, accurate, and complete. I am aware 
that there are significant penalties for submitting false statements and 
information or omitting required statements and information, including 
the possibility of fine or imprisonment.''
    (2) The permitting authority and the Administrator will accept or 
act on a submission made on behalf of owner or operators of a CAIR 
NOX source or a CAIR NOX unit only if the 
submission has been made, signed, and certified in accordance with 
paragraph (e)(1) of this section.



Sec. 97.111  Alternate CAIR designated representative.

    (a) A certificate of representation under Sec. 97.113 may designate 
one and only one alternate CAIR designated representative, who may act 
on behalf of the CAIR designated representative. The agreement by which 
the alternate CAIR designated representative is selected shall include a 
procedure for authorizing the alternate CAIR designated representative 
to act in lieu of the CAIR designated representative.
    (b) Upon receipt by the Administrator of a complete certificate of 
representation under Sec. 97.113, any representation, action, inaction, 
or submission by the alternate CAIR designated representative 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, whenever the term ``CAIR 
designated representative'' is used in subparts AA through II of this 
part, the term shall be construed to include the CAIR designated 
representative or any alternate CAIR designated representative.



Sec. 97.112  Changing CAIR designated representative and alternate CAIR 

designated representative; changes in owners and operators.

    (a) Changing CAIR designated representative. The CAIR designated 
representative may be changed at any time upon receipt by the 
Administrator of a superseding complete certificate of representation 
under Sec. 97.113. Notwithstanding any such change, all 
representations, actions, inactions, and submissions by the previous 
CAIR designated representative before the time and date when the 
Administrator receives the superseding certificate of representation 
shall be binding on the new CAIR designated representative and the 
owners and operators of the CAIR NOX source and the CAIR 
NOX units at the source.
    (b) Changing alternate CAIR designated representative. The alternate 
CAIR designated representative may be changed at any time upon receipt 
by the Administrator of a superseding complete certificate of 
representation under Sec. 97.113. Notwithstanding any such change, all 
representations, actions, inactions, and submissions by the previous 
alternate CAIR designated representative before the time and date when 
the Administrator receives the superseding certificate of representation 
shall be binding on the new alternate CAIR designated representative and 
the owners and operators of the CAIR NOX source and the CAIR 
NOX units at the source.
    (c) Changes in owners and operators. (1) In the event an owner or 
operator of a CAIR NOX source or a CAIR NOX unit 
is not included in the list of owners and operators in the certificate 
of representation under Sec. 97.113, such owner or operator shall be 
deemed to be subject to and bound by the certificate of representation, 
the representations, actions, inactions, and submissions of the CAIR 
designated representative and any alternate CAIR designated 
representative of the source or unit, and the decisions and orders of 
the permitting authority, the Administrator, or a court, as if the owner 
or operator were included in such list.
    (2) Within 30 days following any change in the owners and operators 
of a CAIR NOX source or a CAIR NOX unit,

[[Page 917]]

including the addition of a new owner or operator, the CAIR designated 
representative or any alternate CAIR designated representative shall 
submit a revision to the certificate of representation under Sec. 
97.113 amending the list of owners and operators to include the change.



Sec. 97.113  Certificate of representation.

    (a) A complete certificate of representation for a CAIR designated 
representative or an alternate CAIR designated representative shall 
include the following elements in a format prescribed by the 
Administrator:
    (1) Identification of the CAIR NOX source, and each CAIR 
NOX unit at the source, for which the certificate of 
representation is submitted, including identification and nameplate 
capacity 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 designated 
representative and any alternate CAIR designated representative.
    (3) A list of the owners and operators of the CAIR NOX 
source and of each CAIR NOX unit at the source.
    (4) The following certification statements by the CAIR designated 
representative and any alternate CAIR designated representative--
    (i) ``I certify that I was selected as the CAIR designated 
representative or alternate CAIR designated representative, as 
applicable, by an agreement binding on the owners and operators of the 
source and each CAIR NOX unit at the source.''
    (ii) ``I certify that I have all the necessary authority to carry 
out my duties and responsibilities under the CAIR NOX Annual 
Trading Program on behalf of the owners and operators of the source and 
of each CAIR NOX unit at the source and that each such owner 
and operator shall be fully bound by my representations, actions, 
inactions, or submissions.''
    (iii) ``I certify that the owners and operators of the source and of 
each CAIR NOX unit at the source shall be bound by any order 
issued to me by the Administrator, the permitting authority, or a court 
regarding the source or unit.''
    (iv) Where there are multiple holders of a legal or equitable title 
to, or a leasehold interest in, a CAIR NOX unit, or where a 
utility or industrial customer purchases power from a CAIR 
NOX unit under a life-of-the-unit, firm power contractual 
arrangement, I certify that: I have given a written notice of my 
selection as the `CAIR designated representative' or `alternate CAIR 
designated representative', as applicable, and of the agreement by which 
I was selected to each owner and operator of the source and of each CAIR 
NOX unit at the source; and CAIR NOX allowances 
and proceeds of transactions involving CAIR NOX allowances 
will be deemed 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 a 
different distribution of CAIR NOX allowances by contract, 
CAIR NOX allowances and proceeds of transactions involving 
CAIR NOX allowances will be deemed to be held or distributed 
in accordance with the contract.''
    (5) The signature of the CAIR designated representative and any 
alternate CAIR designated representative and the dates signed.
    (b) Unless otherwise required by the permitting authority or the 
Administrator, documents of agreement referred to in the certificate of 
representation shall not be submitted to the permitting authority or the 
Administrator. Neither the permitting authority nor the Administrator 
shall be under any obligation to review or evaluate the sufficiency 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 under Sec. 97.113 
has been submitted and received, the permitting authority and the 
Administrator will rely on the certificate of representation unless and 
until a superseding complete certificate of representation

[[Page 918]]

under Sec. 97.113 is received by the Administrator.
    (b) Except as provided in Sec. 97.112(a) or (b), no objection or 
other communication submitted to the permitting authority or the 
Administrator concerning the authorization, or any representation, 
action, inaction, or submission, of the CAIR designated representative 
shall affect any representation, action, inaction, or submission of the 
CAIR designated representative or the finality of any decision or order 
by the permitting authority or the Administrator under the CAIR 
NOX Annual Trading Program.
    (c) Neither the permitting authority nor the Administrator will 
adjudicate any private legal dispute concerning the authorization or any 
representation, action, inaction, or submission of any CAIR designated 
representative, including private legal disputes concerning the proceeds 
of CAIR NOX allowance transfers.



Sec. 97.115  Delegation by CAIR designated representative and alternate CAIR 

designated representative.

    (a) A CAIR designated representative may delegate, to one or more 
natural persons, his or her authority to make an electronic submission 
to the Administrator provided for or required under this part.
    (b) An alternate CAIR designated representative may delegate, to one 
or more natural persons, his or her authority to make an electronic 
submission to the Administrator provided for or required under this 
part.
    (c) In order to delegate authority to make an electronic submission 
to the Administrator in accordance with paragraph (a) or (b) of this 
section, the CAIR designated representative or alternate CAIR designated 
representative, as appropriate, must submit to the Administrator a 
notice of delegation, in a format prescribed by the Administrator, that 
includes the following elements:
    (1) The name, address, e-mail address, telephone number, and 
facsimile transmission number (if any) of such CAIR designated 
representative or alternate CAIR designated representative;
    (2) The name, address, e-mail address, telephone number, and 
facsimile 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 of 
electronic submissions under paragraph (a) or (b) of this section for 
which authority is delegated to him or her; and
    (4) The following certification statements by such CAIR designated 
representative or alternate CAIR designated representative:
    (i) ``I agree that any electronic submission to the Administrator 
that is by an agent identified in this notice of delegation and of a 
type listed for such agent in this notice of delegation and that is made 
when I am a CAIR designated representative or alternate CAIR designated 
representative, as appropriate, and before this notice of delegation is 
superseded by another notice of delegation under 40 CFR 97.115(d) shall 
be deemed to be an electronic submission by me.''
    (ii) ``Until this notice of delegation is superseded by another 
notice of delegation under 40 CFR 97.115(d), I agree to maintain an e-
mail account and to notify the Administrator immediately of any change 
in my e-mail address unless all delegation of authority by me under 40 
CFR 97.115 is terminated.''.
    (d) A notice of delegation submitted under paragraph (c) of this 
section shall be effective, with regard to the CAIR designated 
representative or alternate CAIR designated representative identified in 
such notice, upon receipt of such notice by the Administrator and until 
receipt by the Administrator of a superseding notice of delegation 
submitted by such CAIR designated representative or alternate CAIR 
designated representative, as appropriate. The superseding notice of 
delegation may replace any previously identified agent, add a new agent, 
or eliminate entirely any delegation of authority.
    (e) Any electronic submission covered by the certification in 
paragraph

[[Page 919]]

(c)(4)(i) of this section and made in accordance with a notice of 
delegation effective under paragraph (d) of this section shall be deemed 
to be an electronic submission by the CAIR designated representative or 
alternate CAIR designated representative submitting such notice of 
delegation.



                           Subpart CC_Permits



Sec. 97.120  General CAIR NOX Annual Trading Program permit requirements.

    (a) For each CAIR NOX source required to have a title V 
operating permit or required, under subpart II of this part, to have a 
title V operating permit or other federally enforceable permit, such 
permit shall include a CAIR permit administered by the permitting 
authority for the title V operating permit or the federally enforceable 
permit as applicable. The CAIR portion of the title V permit or other 
federally enforceable permit as applicable shall be administered in 
accordance with the permitting authority's title V operating permits 
regulations promulgated under part 70 or 71 of this chapter or the 
permitting authority's regulations for other federally enforceable 
permits as applicable, except as provided otherwise by Sec. 97.105, 
this subpart, and subpart II of this part.
    (b) Each CAIR permit shall contain, with regard to the CAIR 
NOX source and the CAIR NOX units at the source 
covered by the CAIR permit, all applicable CAIR NOX Annual 
Trading Program, CAIR NOX Ozone Season Trading Program, and 
CAIR SO2 Trading Program requirements and shall be a complete 
and separable portion of the title V operating permit or other federally 
enforceable permit under paragraph (a) of this section.



Sec. 97.121  Submission of CAIR permit applications.

    (a) Duty to apply. The CAIR designated representative of any CAIR 
NOX source required to have a title V operating permit shall 
submit to the permitting authority a complete CAIR permit application 
under Sec. 97.122 for the source covering each CAIR NOX unit 
at the source at least 18 months (or such lesser time provided by the 
permitting authority) before the later of January 1, 2009 or the date on 
which the CAIR NOX unit commences commercial operation, 
except as provided in Sec. 97.183(a).
    (b) Duty to reapply. For a CAIR NOX source required to 
have a title V operating permit, the CAIR designated representative 
shall submit a complete CAIR permit application under Sec. 97.122 for 
the source covering each CAIR NOX unit at the source to renew 
the CAIR permit in accordance with the permitting authority's title V 
operating permits regulations addressing permit renewal, except as 
provided in Sec. 97.183(b).



Sec. 97.122  Information requirements for CAIR permit applications.

    A complete CAIR permit application shall include the following 
elements concerning the CAIR NOX source for which the 
application is submitted, in a format prescribed by the permitting 
authority:
    (a) Identification of the CAIR NOX source;
    (b) Identification of each CAIR NOX unit at the CAIR 
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 the 
permitting authority, all elements required for a complete CAIR permit 
application under Sec. 97.122.
    (b) Each CAIR permit is deemed to incorporate automatically the 
definitions of terms under Sec. 97.102 and, upon recordation by the 
Administrator under subpart EE, FF, GG, or II of this part, every 
allocation, transfer, or deduction of a CAIR NOX allowance to 
or from the compliance account of the CAIR NOX source covered 
by the permit.
    (c) The term of the CAIR permit will be set by the permitting 
authority, as necessary to facilitate coordination of the renewal of the 
CAIR permit with issuance, revision, or renewal of the CAIR 
NOX source's title V operating permit or other federally 
enforceable permit as applicable.

[[Page 920]]



Sec. 97.124  CAIR permit revisions.

    Except as provided in Sec. 97.123(b), the permitting authority will 
revise the CAIR permit, as necessary, in accordance with the permitting 
authority's title V operating permits regulations or the permitting 
authority's regulations for other federally enforceable 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 CAIR 
NOX allowances for the control periods in 2009 through 2014 
and in 2015 and thereafter are respectively as follows:

------------------------------------------------------------------------
                                                           State trading
                                           State trading    budget for
                  State                     budget for       2015 and
                                             2009-2014      thereafter
                                              (tons)          (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 CAIR 
NOX allowance allocations, in accordance with Sec. 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, the 
Administrator will determine by order the CAIR NOX allowance 
allocations, in accordance with Sec. 97.142(a) and (b), for the control 
period in the fourth year after the year of the applicable deadline for 
determination under this paragraph.
    (c) By July 31, 2009 and July 31 of each year thereafter, the 
Administrator will determine by order the CAIR NOX allowance 
allocations, in accordance with Sec. 97.142(a),(c), and (d), for the 
control period in the year of the applicable deadline for determination 
under this paragraph.
    (d) The Administrator will make available to the public each 
determination of CAIR NOX allowances under paragraph (a), 
(b), or (c) of this section and will provide an opportunity for 
submission of objections to the determination. Objections shall be 
limited to addressing whether the determination is in accordance with 
Sec. 97.142. Based on any such objections, the Administrator will 
adjust each determination to the extent necessary to 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 to CAIR 
NOX allowance allocations under paragraph (b) of this section 
for each CAIR NOX unit will be:
    (i) For units commencing operation before January 1, 2001 the 
average of the 3 highest amounts of the unit's adjusted control period 
heat input for 2000 through 2004, with the adjusted control period heat 
input for each year calculated as follows:
    (A) If the unit is coal-fired during the year, the unit's control 
period heat input for such year is multiplied by 100 percent;
    (B) If the unit is oil-fired during the year, the unit's control 
period 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) of 
this section, the unit's control period heat input for such year is 
multiplied by 40 percent.

[[Page 921]]

    (ii) For units commencing operation on or after January 1, 2001 and 
operating each calendar year during a period of 5 or more consecutive 
calendar years, the average of the 3 highest amounts of the unit's total 
converted control period heat input over the first such 5 years.
    (2)(i) A unit's control period heat input, and a unit's status as 
coal-fired or oil-fired, for a calendar year under paragraph (a)(1)(i) 
of this section, and a unit's total tons of NOX emissions 
during a calendar year under paragraph (c)(3) of this section, will be 
determined in accordance with part 75 of this chapter, to the extent the 
unit was otherwise subject to the requirements of part 75 of this 
chapter for the year, or will be based on the best available data 
reported to the Administrator for the unit (in a format prescribed by 
the Administrator), to the extent the unit was not otherwise subject to 
the requirements of part 75 of this chapter for the year.
    (ii) A unit's converted control period heat input for a calendar 
year specified under paragraph (a)(1)(ii) of this section equals:
    (A) Except as provided in paragraph (a)(2)(ii)(B) or (C) of this 
section, the control period gross electrical output of the generator or 
generators served by the unit multiplied by 7,900 Btu/kWh, if the unit 
is coal-fired for the year, or 6,675 Btu/kWh, if the unit is not coal-
fired for the year, and divided by 1,000,000 Btu/mmBtu, provided that if 
a generator is served by 2 or more units, then the gross electrical 
output of the generator will be attributed to each unit in proportion to 
the unit's share of the total control period heat input of such units 
for the year;
    (B) For a unit that is a boiler and has equipment used to produce 
electricity and useful thermal energy for industrial, commercial, 
heating, or cooling purposes through the sequential use of energy, the 
total heat energy (in Btu) of the steam produced by the boiler during 
the 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 used 
to produce electricity and useful thermal energy for industrial, 
commercial, heating, or cooling purposes through the sequential use of 
energy, the control period gross electrical output of the enclosed 
device comprising the compressor, combustor, and turbine multiplied by 
3,413 Btu/kWh, plus the total heat energy (in Btu) of the steam produced 
by any associated heat recovery steam generator during the control 
period divided by 0.8, and with the sum divided by 1,000,000 Btu/mmBtu.
    (iii) Gross electrical output and total heat energy under paragraph 
(a)(2)(ii) of this section will be determined based on the best 
available data reported to the Administrator for the unit (in a format 
prescribed by the Administrator).
    (3) The Administrator will determine what data are the best 
available data under paragraph (a)(2) of this section by weighing the 
likelihood that data are accurate and reliable and giving greater weight 
to data submitted to a governmental entity in compliance with legal 
requirements or substantiated by an independent entity.
    (b)(1) For each control period in 2009 and thereafter, the 
Administrator will allocate to all CAIR NOX units in a State 
that have a baseline heat input (as determined under paragraph (a) of 
this section) a total amount of CAIR NOX allowances equal to 
95 percent for a control period during 2009 through 2014, and 97 percent 
for a control period during 2015 and thereafter, of the tons of 
NOX emissions in the applicable State trading budget under 
Sec. 97.140 (except as provided in paragraphs (d) and (e) of this 
section).
    (2) The Administrator will allocate CAIR NOX allowances 
to each CAIR NOX unit under paragraph (b)(1) of this section 
in an amount determined by multiplying the total amount of CAIR 
NOX allowances allocated under paragraph (b)(1) of this 
section by the ratio of the baseline heat input of such CAIR 
NOX unit to the total amount of baseline heat input of all 
such CAIR NOX units in the State and rounding to the nearest 
whole allowance as appropriate.
    (c) For each control period in 2009 and thereafter, the 
Administrator will allocate CAIR NOX allowances to CAIR 
NOX units in a State that are not allocated CAIR 
NOX allowances under paragraph (b) of this section because

[[Page 922]]

the units do not yet have a baseline heat input under paragraph (a) of 
this section or because the units have a baseline heat input but all 
CAIR NOX allowances available under paragraph (b) of this 
section for the control period are already allocated, in accordance with 
the following procedures:
    (1) The Administrator will establish a separate new unit set-aside 
for each control period. Each new unit set-aside will be allocated CAIR 
NOX allowances equal to 5 percent for a control period in 
2009 through 2014, and 3 percent for a control period in 2015 and 
thereafter, of the amount of tons of NOX emissions in the 
applicable State trading budget under Sec. 97.140.
    (2) The CAIR designated representative of such a CAIR NOX 
unit may submit to the Administrator a request, in a format specified by 
the Administrator, to be allocated CAIR NOX allowances, 
starting with the later of the control period in 2009 or the first 
control period after the control period in which the CAIR NOX 
unit commences commercial operation and until the first control period 
for which the unit is allocated CAIR NOX allowances under 
paragraph (b) of this section. A separate CAIR NOX allowance 
allocation request for each control period for which CAIR NOX 
allowances are sought must be submitted on or before May 1 of such 
control period and after the date on which the CAIR NOX unit 
commences commercial operation.
    (3) In a CAIR NOX allowance allocation request under 
paragraph (c)(2) of this section, the CAIR designated representative may 
request for a control period CAIR NOX allowances in an amount 
not exceeding the CAIR NOX unit's total tons of 
NOX emissions during the calendar year immediately before 
such control period.
    (4) The Administrator will review each CAIR NOX allowance 
allocation request under paragraph (c)(2) of this section and will 
allocate CAIR NOX allowances for each control period pursuant 
to such request as follows:
    (i) The Administrator will accept an allowance allocation request 
only if the request meets, or is adjusted by the Administrator 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 Administrator will 
determine the sum of the CAIR NOX allowances requested (as 
adjusted under paragraph (c)(4)(i) of this section) 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 new 
unit set-aside for the control period is greater than or equal to the 
sum under paragraph (c)(4)(ii) of this section, then the Administrator 
will allocate the amount of CAIR NOX allowances requested (as 
adjusted under paragraph (c)(4)(i) of this section) to each CAIR 
NOX unit covered by an allowance allocation request accepted 
under paragraph (c)(4)(i) of this section.
    (iv) If the amount of CAIR NOX allowances in the new unit 
set-aside for the control period is less than the sum under paragraph 
(c)(4)(ii) of this section, then the Administrator will allocate to each 
CAIR NOX unit covered by an allowance allocation request 
accepted under paragraph (c)(4)(i) of this section the amount of the 
CAIR NOX allowances requested (as adjusted under paragraph 
(c)(4)(i) of this section), multiplied by the amount of CAIR 
NOX allowances in the new unit set-aside for the control 
period, divided by the sum determined under paragraph (c)(4)(ii) of this 
section, and rounded to the nearest whole allowance as appropriate.
    (v) The Administrator will notify each CAIR designated 
representative that submitted an allowance allocation request of the 
amount of CAIR NOX allowances (if any) allocated for the 
control period to the CAIR NOX 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 CAIR NOX 
allowances remain in the new unit set-aside under paragraph (c) of this 
section for a State for the control period, the Administrator will 
allocate to each CAIR NOX unit that was allocated CAIR 
NOX allowances under paragraph (b) of this section in the 
State an amount of CAIR NOX allowances equal to the total 
amount of such remaining unallocated CAIR NOX allowances, 
multiplied by the unit's allocation

[[Page 923]]

under paragraph (b) of this section, divided by 95 percent for a control 
period during 2009 through 2014, and 97 percent for a control period 
during 2015 and thereafter, of the amount of tons of NOX 
emissions in the applicable State trading budget under Sec. 97.140, and 
rounded to the nearest whole allowance as appropriate.
    (e) If the Administrator determines that CAIR NOX 
allowances were allocated under paragraphs (a) and (b) of this section, 
paragraphs (a) and (c) of this section, or paragraph (d) of this section 
for a control period and that the recipient of the allocation is not 
actually a CAIR NOX unit under Sec. 97.104 in such control 
period, then the Administrator will notify the CAIR designated 
representative and will act 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 allowances 
under Sec. 97.153.
    (2) If the Administrator already recorded such CAIR NOX 
allowances under Sec. 97.153 and if the Administrator makes such 
determination before making deductions for the source that includes such 
recipient under Sec. 97.154(b) for the control period, then the 
Administrator will deduct from the account in which such CAIR 
NOX allowances were recorded under Sec. 97.153 an amount of 
CAIR NOX allowances allocated for the same or a prior control 
period equal to the amount of such already recorded CAIR NOX 
allowances. The CAIR designated representative shall ensure that there 
are sufficient CAIR NOX allowances in such account for 
completion of the deduction.
    (3) If the Administrator already recorded such CAIR NOX 
allowances under Sec. 97.153 and if the Administrator makes such 
determination after making deductions for the source that includes such 
recipient under Sec. 97.154(b) for the control period, then the 
Administrator will apply paragraph (e)(1) or (2) of this section, as 
appropriate, to any subsequent control period for which CAIR 
NOX allowances were allocated to such recipient.
    (4) The Administrator will transfer the CAIR NOX 
allowances that are not recorded, or that are deducted, in accordance 
with paragraphs (e)(1), (2), and (3) of this section to a new unit set-
aside for the State in which such recipient is located.



Sec. 97.143  Compliance supplement pool.

    (a) In addition to the CAIR NOX allowances allocated 
under Sec. 97.142, the Administrator may allocate for the control 
period in 2009 up to the following amount of CAIR NOX 
allowances to CAIR NOX units in the respective 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
                                                       -----------------
    Total.............................................           199,997
------------------------------------------------------------------------

    (b) For any CAIR NOX unit in a State, if the unit's 
average annual NOX emission rate for 2007 or 2008 is less 
than 0.25 lb/mmBtu and, where such unit is included in a NOX 
averaging plan under Sec. 76.11 of this chapter under the Acid Rain 
Program for such year, the unit's NOX averaging plan has an 
actual weighted average NOX emission rate for such year equal 
to or less than the actual weighted average NOX emission rate 
for the year before such year and if the unit achieves NOX 
emission reductions in 2007 and 2008, the CAIR designated representative 
of the unit may request early reduction credits, and allocation of CAIR 
NOX allowances from the compliance supplement pool under 
paragraph (a) of this section for

[[Page 924]]

such early reduction credits, in accordance with the following:
    (1) The owners and operators of such CAIR NOX unit shall 
monitor and report the NOX emissions rate and the heat input 
of the unit in accordance with subpart HH of this part in each control 
period for which early reduction credit is requested.
    (2) The CAIR designated representative of such CAIR NOX 
unit shall submit to the Administrator by May 1, 2009 a request, in a 
format specified by the Administrator, for allocation of an amount of 
CAIR NOX allowances from the compliance supplement pool not 
exceeding the sum of the unit's heat input for the control period in 
2007 multiplied by the difference (if any greater than zero) between 
0.25 lb/mmBtu and the unit's NOX emission rate for the 
control period in 2007 plus the unit's heat input for the control period 
in 2008 multiplied by the difference (if any greater than zero) between 
0.25 lb/mmBtu and the unit's NOX emission rate for the 
control period in 2008, determined in accordance with subpart HH of this 
part and with the sum divided by 2,000 lb/ton and rounded to the nearest 
whole number of tons as appropriate.
    (c) For any CAIR NOX unit in a State whose compliance 
with the CAIR NOX emissions limitation for the control period 
in 2009 would create an undue risk to the reliability of electricity 
supply during such control period, the CAIR designated representative of 
the unit may request the allocation of CAIR NOX allowances 
from the compliance supplement pool under paragraph (a) of this section, 
in accordance with the following:
    (1) The CAIR designated representative of such CAIR NOX 
unit shall submit to the Administrator by May 1, 2009 a request, in a 
format specified by the Administrator, for allocation of an amount of 
CAIR NOX allowances from the compliance supplement pool not 
exceeding the minimum amount of CAIR NOX allowances necessary 
to remove such undue risk to the reliability of electricity supply.
    (2) In the request under paragraph (c)(1) of this section, the CAIR 
designated representative of such CAIR NOX unit shall 
demonstrate that, in the absence of allocation to the unit of the amount 
of CAIR NOX allowances requested, the unit's compliance with 
the CAIR NOX emissions limitation for the control period in 
2009 would create an undue risk to the reliability of electricity supply 
during such control period. This demonstration must include a showing 
that it would not be feasible for the owners and operators of the unit 
to:
    (i) Obtain a sufficient amount of electricity from other electricity 
generation facilities, during the installation of control technology at 
the unit for compliance with the CAIR NOX emissions 
limitation, to prevent such undue risk; or
    (ii) Obtain under paragraphs (b) and (d) of this section, or 
otherwise obtain, a sufficient amount of CAIR NOX allowances 
to prevent such undue risk.
    (d) The Administrator will review each request under paragraph (b) 
or (c) of this section submitted by May 1, 2009 and will allocate CAIR 
NOX allowances for the control period in 2009 to CAIR 
NOX units in a State and covered by such request as follows:
    (1) Upon receipt of each such request, the Administrator will make 
any necessary adjustments to the request to ensure that the amount of 
the CAIR NOX allowances requested meets the requirements 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 not less 
than the total amount of CAIR NOX allowances in all such 
requests (as adjusted under paragraph (d)(1) of this section), the 
Administrator will allocate to each CAIR NOX unit covered by 
such requests the amount of CAIR NOX allowances requested (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 NOX allowances than 
the total amount of CAIR NOX allowances in all such requests 
(as adjusted under paragraph (d)(1) of this section), the Administrator 
will allocate CAIR NOX allowances to each CAIR NOX 
unit covered by such requests according to the following formula and 
rounding to the

[[Page 925]]

nearest whole allowance as appropriate:

Unit's allocation = Unit's adjusted allocation x (State's compliance 
    supplement pool / Total adjusted allocations for all units)

Where:

``Unit's allocation'' is the amount of CAIR NOX allowances 
allocated to the unit from the State's compliance supplement pool.
``Unit's adjusted allocation'' is the amount of CAIR NOX 
allowances requested for the unit under paragraph (b) or (c) of this 
section, as adjusted under paragraph (d)(1) of this section.
``State's compliance supplement pool'' is the amount of CAIR 
NOX allowances in the State's compliance supplement pool.
``Total adjusted allocations for all units'' is the sum of the amounts 
of allocations requested for all units under paragraph (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 order the 
allocations under paragraph (d)(2) or (3) of this section. The 
Administrator will make available to the public each determination of 
CAIR NOX allowances under such paragraph and will provide an 
opportunity for submission of objections to the determination. 
Objections shall be limited to addressing whether the determination is 
in accordance with paragraph (b) or (c) of this section and paragraph 
(d)(2) or (3) of this section, as appropriate. Based on any such 
objections, the Administrator will adjust each determination to the 
extent necessary to ensure that it is in accordance with such 
paragraphs.
    (5) By January 1, 2010, the Administrator will record the 
allocations 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 and compliance 

supplement pool by permitting authority.

    (a) Notwithstanding Sec. Sec. 97.141, 97.142, and 97.153 if a State 
submits, and the Administrator approves, a State implementation plan 
revision in accordance with Sec. 51.123(p)(1) of this chapter providing 
for allocation of CAIR NOX allowances by the permitting 
authority, then the permitting authority shall make such allocations in 
accordance with such approved State implementation plan revision, the 
Administrator will not make allocations under Sec. Sec. 97.141 and 
97.142 for the CAIR NOX units in the State, and under Sec. 
97.153, the Administrator will record the allocations made under such 
approved State implementation plan revision instead of allocations made 
under Sec. Sec. 97.141 and 97.142.
    (b) Notwithstanding Sec. 97.143, if a State submits, and the 
Administrator approves, a State implementation plan revision in 
accordance with Sec. 51.123(p)(2) of this chapter providing for 
allocation of the State's compliance supplement pool by the permitting 
authority, then the permitting authority shall make such allocations in 
accordance with such approved State implementation plan revision, the 
Administrator will not make allocations under Sec. 97.143(d)(4) for the 
CAIR NOX units in the State, and under Sec. 97.143(d)(5), 
the Administrator will record the allocations of the State's compliance 
supplement pool made under such approved State implementation plan 
revision instead of allocations made under Sec. 97.143(d)(4).
    (c)(1) In implementing paragraph (a) of this section and Sec. Sec. 
97.141, 97.142, and 97.153, the Administrator will ensure that the total 
amount of CAIR NOX allowances allocated, under such 
provisions and under a State's State implementation plan revision 
approved in accordance with Sec. 51.123(p)(1) of this chapter, for a 
control period for CAIR NOX sources in the State or for other 
entities specified by the permitting authority will not exceed the 
State's State trading budget for the year of the control period.
    (2) In implementing paragraph (b) of this section and Sec. 97.143, 
the Administrator will ensure that the total amount of CAIR 
NOX allowances allocated, under such provisions and under a 
State's State implementation plan revision approved in accordance with 
Sec. 51.123(p)(2), for CAIR NOX sources in the State will 
not exceed the State's compliance supplement pool.

[65 FR 2727, Jan. 18, 2000, as amended at 71 FR 74795, Dec. 13, 2006]

[[Page 926]]



  Sec. Appendix A to Subpart EE of Part 97--States With Approved State 
          Implementation Plan Revisions Concerning Allocations

    1. The following States have State Implementation Plan revisions 
under Sec. 51.123(p)(1) of this chapter approved by the Administrator 
and providing for allocation of CAIR NOX allowances 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 revisions 
under Sec. 51.123(p)(2) of this chapter approved by the Administrator 
and providing for allocation of the Compliance Supplement Pool by the 
permitting authority under Sec. 97.144(b):
    Indiana
    Michigan
    New Jersey
    Ohio
    South Carolina
    Texas

[65 FR 2727, Jan. 18, 2000, as amended at 72 FR 41459, July 30, 2007; 72 
FR 46394, Aug. 20, 2007; 72 FR 52293, Sept. 13, 2007; 72 FR 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 Tracking System



Sec. 97.150  [Reserved]



Sec. 97.151  Establishment of accounts.

    (a) Compliance accounts. Except as provided in Sec. 97.184(e), upon 
receipt of a complete certificate of representation under Sec. 97.113, 
the Administrator will establish a compliance account for the CAIR 
NOX source for which the certificate of representation was 
submitted, unless the source already has a compliance account.
    (b) General accounts--(1) Application for general account. (i) Any 
person may apply to open a general account for the purpose of holding 
and transferring CAIR NOX allowances. An application for a 
general account may designate one and only one CAIR authorized account 
representative and one and only one alternate CAIR authorized account 
representative who may act on behalf of the CAIR authorized account 
representative. The agreement by which the alternate CAIR authorized 
account representative is selected shall include a procedure for 
authorizing the alternate CAIR authorized account representative to act 
in lieu of the CAIR authorized account representative.
    (ii) A complete application for a general account shall be submitted 
to the Administrator and shall include the following elements in a 
format prescribed by the Administrator:
    (A) Name, mailing address, e-mail address (if any), telephone 
number, and facsimile transmission number (if any) of the CAIR 
authorized account representative and any alternate CAIR authorized 
account representative;
    (B) Organization name and type of organization, if applicable;
    (C) A list of all persons subject to a binding agreement for the 
CAIR authorized account representative and any alternate CAIR authorized 
account representative to represent their ownership interest with 
respect to the CAIR NOX allowances held in the general 
account;
    (D) The following certification statement by the CAIR authorized 
account representative and any alternate CAIR authorized account 
representative: ``I certify that I was selected as the CAIR authorized 
account representative or the alternate CAIR authorized account 
representative, as applicable, by an agreement that is binding on all 
persons who have an ownership interest with respect to CAIR 
NOX allowances held in the general account. I certify that I 
have all the necessary authority to carry out my duties and 
responsibilities under the CAIR NOX Annual Trading Program on 
behalf of such persons and that each such person shall be fully bound by 
my representations, actions, inactions, or submissions and by any order 
or decision issued to me by the Administrator or a court regarding the 
general account.''
    (E) The signature of the CAIR authorized account representative and

[[Page 927]]

any alternate CAIR authorized account representative and the dates 
signed.
    (iii) Unless otherwise required by the permitting authority or the 
Administrator, documents of agreement referred to in the application for 
a general account shall not be submitted to the permitting authority or 
the Administrator. Neither the permitting authority nor the 
Administrator shall be under any obligation to review or evaluate the 
sufficiency of such documents, if submitted.
    (2) Authorization of CAIR authorized account representative and 
alternate CAIR authorized account representative. (i) Upon receipt by 
the Administrator of a complete application for a general account under 
paragraph (b)(1) of this section:
    (A) The Administrator will establish a general account for the 
person or persons for whom the application is submitted.
    (B) The CAIR authorized account representative and any alternate 
CAIR authorized account representative for the general account shall 
represent and, by his or her representations, actions, inactions, or 
submissions, legally bind each person who has an ownership interest with 
respect to CAIR NOX allowances held in the general account in 
all matters pertaining to the CAIR NOX Annual Trading 
Program, notwithstanding any agreement between the CAIR authorized 
account representative or any alternate CAIR authorized account 
representative and such person. Any such person shall be bound by any 
order or decision issued to the CAIR authorized account representative 
or any alternate CAIR authorized account representative by the 
Administrator or a court regarding the general account.
    (C) Any representation, action, inaction, or submission by any 
alternate CAIR authorized account representative shall be deemed to be a 
representation, action, inaction, or submission by the CAIR authorized 
account representative.
    (ii) Each submission concerning the general account shall be 
submitted, signed, and certified by the CAIR authorized account 
representative or any alternate CAIR authorized account representative 
for the persons having an ownership interest with respect to CAIR 
NOX allowances held in the general account. Each such 
submission shall include the following certification statement by the 
CAIR authorized account representative or any alternate CAIR authorized 
account representative: ``I am authorized to make this submission on 
behalf of the persons having an ownership interest with respect to the 
CAIR NOX allowances held in the general account. I certify 
under penalty of law that I have personally examined, and am familiar 
with, the statements and information submitted in this document and all 
its attachments. Based on my inquiry of those individuals with primary 
responsibility for obtaining the information, I certify that the 
statements and information are to the best of my knowledge and belief 
true, accurate, and complete. I am aware that there are significant 
penalties for submitting false statements and information or omitting 
required statements and information, including the possibility of fine 
or imprisonment.''
    (iii) The Administrator will accept or act on a submission 
concerning the general account only if the submission has been made, 
signed, and certified in accordance with paragraph (b)(2)(ii) of this 
section.
    (3) Changing CAIR authorized account representative and alternate 
CAIR authorized account representative; changes in persons with 
ownership interest. (i) The CAIR authorized account representative for a 
general account may be changed at any time upon receipt by the 
Administrator of a superseding complete application for a general 
account under paragraph (b)(1) of this section. Notwithstanding any such 
change, all representations, actions, inactions, and submissions by the 
previous CAIR authorized account representative before the time and date 
when the Administrator receives the superseding application for a 
general account shall be binding on the new CAIR authorized account 
representative and the persons with an ownership interest with respect 
to the CAIR NOX allowances in the general account.
    (ii) The alternate CAIR authorized account representative for a 
general account may be changed at any time

[[Page 928]]

upon receipt by the Administrator of a superseding complete application 
for a general account under paragraph (b)(1) of this section. 
Notwithstanding any such change, all representations, actions, 
inactions, and submissions by the previous alternate CAIR authorized 
account representative before the time and date when the Administrator 
receives the superseding application for a general account shall be 
binding on the new alternate CAIR authorized account representative and 
the persons with an ownership interest with respect to the CAIR 
NOX allowances in the general account.
    (iii)(A) In the event a person having an ownership interest with 
respect to CAIR NOX allowances in the general account is not 
included in the list of such persons in the application for a general 
account, such person shall be deemed to be subject to and bound by the 
application for a general account, the representation, actions, 
inactions, and submissions of the CAIR authorized account representative 
and any alternate CAIR authorized account representative of the account, 
and the decisions and orders of the Administrator or a court, as if the 
person were included in such list.
    (B) Within 30 days following any change in the persons having an 
ownership interest with respect to CAIR NOX allowances in the 
general account, including the addition of a new person, the CAIR 
authorized account representative or any alternate CAIR authorized 
account representative shall submit a revision to the application for a 
general account amending the list of persons having an ownership 
interest with respect to the CAIR NOX allowances in the 
general account to include the change.
    (4) Objections concerning CAIR authorized account representative and 
alternate CAIR authorized account representative. (i) Once a complete 
application for a general account under paragraph (b)(1) of this section 
has been submitted and received, the Administrator will rely on the 
application unless and until a superseding 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)(3)(i) or (ii) of this 
section, no objection or other communication submitted to the 
Administrator concerning the authorization, or any representation, 
action, inaction, or submission of the CAIR authorized account 
representative or any alternate CAIR authorized account representative 
for a general account shall affect any representation, action, inaction, 
or submission of the CAIR authorized account representative or any 
alternate CAIR authorized account representative or the finality of any 
decision or order by the Administrator under the CAIR NOX 
Annual Trading Program.
    (iii) The Administrator will not adjudicate any private legal 
dispute concerning the authorization or any representation, action, 
inaction, or submission of the CAIR authorized account representative or 
any alternate CAIR authorized account representative for a general 
account, including private legal disputes concerning the proceeds of 
CAIR NOX allowance transfers.
    (5) Delegation by CAIR authorized account representative and 
alternate CAIR authorized account representative. (i) A CAIR authorized 
account representative may delegate, to one or more natural persons, his 
or her authority to make an electronic submission to the Administrator 
provided for or required under subparts FF and GG of this part.
    (ii) An alternate CAIR authorized account representative may 
delegate, to one or more natural persons, his or her authority to make 
an electronic submission to the Administrator provided for or required 
under subparts FF and GG of this part.
    (iii) In order to delegate authority to make an electronic 
submission to the Administrator in accordance with paragraph (b)(5)(i) 
or (ii) of this section, the CAIR authorized account representative or 
alternate CAIR authorized account representative, as appropriate, must 
submit to the Administrator a notice of delegation, in a format 
prescribed by the Administrator, that includes the following elements:
    (A) The name, address, e-mail address, telephone number, and 
facsimile transmission number (if any) of such

[[Page 929]]

CAIR authorized account representative 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 of 
electronic submissions under paragraph (b)(5)(i) or (ii) of this section 
for which authority is delegated to him or her;
    (D) The following certification statement by such CAIR authorized 
account representative or alternate CAIR authorized account 
representative: ``I agree that any electronic submission to the 
Administrator that is by an agent identified in this notice of 
delegation and of a type listed for such agent in this notice of 
delegation and that is made when I am a CAIR authorized account 
representative or alternate CAIR authorized representative, as 
appropriate, and before this notice of delegation is superseded by 
another notice of delegation under 40 CFR 97.151(b)(5)(iv) shall be 
deemed to be an electronic submission by me.''; and
    (E) The following certification statement by such CAIR authorized 
account representative or alternate CAIR authorized account 
representative: ``Until this notice of delegation is superseded by 
another notice of delegation under 40 CFR 97.151(b)(5)(iv), I agree to 
maintain an e-mail account and to notify the Administrator immediately 
of any change in my e-mail address unless all delegation of 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 authorized 
account representative or alternate CAIR authorized account 
representative identified in such notice, upon receipt of such notice by 
the Administrator and until receipt by the Administrator of a 
superseding notice of delegation submitted by such CAIR authorized 
account representative or alternate CAIR authorized account 
representative, as appropriate. The superseding notice of delegation may 
replace any previously identified agent, add a new agent, or eliminate 
entirely any delegation of authority.
    (v) Any electronic submission covered by the certification in 
paragraph (b)(5)(iii)(D) of this section and made in accordance with a 
notice of delegation effective under paragraph (b)(5)(iv) of this 
section shall be deemed to be an electronic submission by the CAIR 
designated representative or alternate CAIR designated representative 
submitting such notice of delegation.
    (c) Account identification. The Administrator will assign a unique 
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 Allowance 
Tracking System account, all submissions to the Administrator pertaining 
to the account, including, but not limited to, submissions concerning 
the deduction or transfer of CAIR NOX allowances in the 
account, shall be made only by the CAIR authorized account 
representative for the account.



Sec. 97.153  Recordation of CAIR NOX allowance allocations.

    (a) By September 30, 2007, the Administrator will record in the CAIR 
NOX source's compliance account the CAIR NOX 
allowances allocated for the CAIR NOX units 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 the CAIR 
NOX source's compliance account the CAIR NOX 
allowances allocated for the CAIR NOX units 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 the CAIR 
NOX source's compliance account the CAIR NOX 
allowances allocated for the CAIR NOX units 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's compliance 
account the CAIR NOX allowances allocated for the CAIR

[[Page 930]]

NOX units at the source in accordance with Sec. 97.142(a) 
and (b) for the control period in the fourth year after the year of the 
applicable deadline for recordation under this paragraph.
    (e) By December 1, 2009 and December 1 of each year thereafter, the 
Administrator will record in the CAIR NOX source's compliance 
account the CAIR NOX allowances allocated for the CAIR 
NOX units at the source in accordance with Sec. 97.142(a) 
and (c) for the control period in the year of the applicable deadline 
for recordation under this paragraph.
    (f) Serial numbers for allocated CAIR NOX allowances. When recording 
the allocation of CAIR NOX allowances for a CAIR 
NOX unit in a compliance account, the Administrator will 
assign each CAIR NOX allowance a unique identification number 
that will include digits identifying the year of the control period for 
which the CAIR NOX allowance is allocated.



Sec. 97.154  Compliance with CAIR NOX emissions limitation.

    (a) Allowance transfer deadline. The CAIR NOX allowances 
are available to be deducted for compliance with a source's CAIR 
NOX emissions limitation for a control period in a given 
calendar year only if the CAIR NOX allowances:
    (1) Were allocated for the control period in the year or a prior 
year; and
    (2) Are held in the compliance account as of the allowance transfer 
deadline for the control period or are transferred into the compliance 
account by a CAIR NOX allowance transfer correctly submitted 
for recordation under Sec. Sec. 97.160 and 97.161 by the allowance 
transfer deadline for the control period.
    (b) Deductions for compliance. Following the recordation, in 
accordance with Sec. 97.161, of CAIR NOX allowance transfers 
submitted for recordation in a source's compliance account by the 
allowance transfer deadline for a control period, the Administrator will 
deduct from the compliance account CAIR NOX allowances 
available under paragraph (a) of this section in order to determine 
whether the source meets the CAIR NOX emissions limitation 
for the control period, as follows:
    (1) Until the amount of CAIR NOX allowances deducted 
equals the number of tons of total nitrogen oxides emissions, determined 
in accordance with subpart HH of this part, from all CAIR NOX 
units at the source for the control period; or
    (2) If there are insufficient CAIR NOX allowances to 
complete the deductions in paragraph (b)(1) of this section, until no 
more CAIR NOX allowances available under paragraph (a) of 
this section remain in the compliance account.
    (c)(1) Identification of CAIR NOX allowances by serial number. The 
CAIR authorized account representative for a source's compliance account 
may request that specific CAIR NOX allowances, identified by 
serial number, in the compliance account be deducted for emissions or 
excess emissions for a control period in accordance with paragraph (b) 
or (d) of this section. Such request shall be submitted to the 
Administrator by the allowance transfer deadline for the control period 
and include, in a format prescribed by the Administrator, the 
identification of the CAIR NOX source and the appropriate 
serial numbers.
    (2) First-in, first-out. The Administrator will deduct CAIR 
NOX allowances under paragraph (b) or (d) of this section 
from the source's compliance account, in the absence of an 
identification or in the case of a partial identification of CAIR 
NOX allowances by serial number under paragraph (c)(1) of 
this section, on a first-in, first-out (FIFO) accounting basis in the 
following order:
    (i) Any CAIR NOX allowances that were allocated to the 
units at the source, in the order of recordation; and then
    (ii) Any CAIR NOX allowances that were allocated to any 
entity and transferred and recorded in the compliance account pursuant 
to subpart GG of this part, in the order of recordation.
    (d) Deductions for excess emissions. (1) After making the deductions 
for compliance under paragraph (b) of this section for a control period 
in a calendar year in which the CAIR NOX source has excess 
emissions, the Administrator will deduct from the source's compliance 
account an amount of CAIR NOX allowances, allocated for the 
control

[[Page 931]]

period in the immediately following calendar year, equal to 3 times the 
number of tons of the source's excess emissions.
    (2) Any allowance deduction required under paragraph (d)(1) of this 
section shall not affect the liability of the owners and operators of 
the CAIR NOX source or the CAIR NOX units at the 
source for any fine, penalty, or assessment, or their obligation to 
comply with any other remedy, for the same violations, as ordered under 
the Clean Air Act or applicable State law.
    (e) Recordation of deductions. The Administrator will record in the 
appropriate compliance account all deductions from such an account under 
paragraphs (b) and (d) of this section and subpart II.
    (f) Administrator's action on submissions. (1) The Administrator may 
review and conduct independent audits concerning any submission under 
the CAIR NOX Annual Trading Program and make appropriate 
adjustments of the information in the submissions.
    (2) The Administrator may deduct CAIR NOX allowances from 
or transfer CAIR NOX allowances to a source's compliance 
account based on the information in the submissions, as adjusted under 
paragraph (f)(1) of this section, and record such deductions and 
transfers.



Sec. 97.155  Banking.

    (a) CAIR NOX allowances may be banked for future use or 
transfer in a compliance account or a general account in accordance with 
paragraph (b) of this section.
    (b) Any CAIR NOX allowance that is held in a compliance 
account or a general account will remain in such account unless and 
until the CAIR NOX allowance is deducted or transferred 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 or 
her own motion, correct any error in any CAIR NOX Allowance 
Tracking System account. Within 10 business days of making such 
correction, the Administrator will notify the CAIR authorized account 
representative for the account.



Sec. 97.157  Closing of general accounts.

    (a) The CAIR authorized account representative of a general account 
may submit to the Administrator a request to close the account, which 
shall include a correctly submitted allowance transfer under Sec. Sec. 
97.160 and 97.161 for any CAIR NOX allowances in the account 
to one or more other CAIR NOX Allowance Tracking System 
accounts.
    (b) If a general account has no allowance transfers in or out of the 
account for a 12-month period or longer and does not contain any CAIR 
NOX allowances, the Administrator may notify the CAIR 
authorized account representative for the account that the account will 
be closed following 20 business days after the notice is sent. The 
account will be closed after the 20-day period unless, before the end of 
the 20-day period, the Administrator receives a correctly submitted 
transfer of CAIR NOX allowances into the account under 
Sec. Sec. 97.160 and 97.161 or a statement submitted by the CAIR 
authorized account representative demonstrating to the satisfaction of 
the Administrator good cause as to why the account should 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 a 
CAIR NOX allowance transfer shall submit the transfer to the 
Administrator. To be considered correctly submitted, the CAIR 
NOX allowance transfer shall include the following elements, 
in a format specified by the Administrator:
    (a) The account numbers for both the transferor and transferee 
accounts;
    (b) The serial number of each CAIR NOX allowance that is 
in the transferor account and is to be transferred; and
    (c) The name and signature of the CAIR authorized account 
representative of the transferor account and the date signed.

[[Page 932]]



Sec. 97.161  EPA recordation.

    (a) Within 5 business days (except as provided in paragraph (b) of 
this section) of receiving a CAIR NOX allowance transfer, the 
Administrator will record a CAIR NOX allowance transfer by 
moving each CAIR NOX allowance from the transferor account to 
the transferee account as specified by the request, provided that:
    (1) The transfer is correctly submitted under Sec. 97.160; and
    (2) The transferor account includes each CAIR NOX 
allowance identified by serial number in the transfer.
    (b) A CAIR NOX allowance transfer that is submitted for 
recordation after the allowance transfer deadline for a control period 
and that includes any CAIR NOX allowances allocated for any 
control period before such allowance transfer deadline will not be 
recorded until after the Administrator completes the deductions under 
Sec. 97.154 for the control period immediately before such allowance 
transfer deadline.
    (c) Where a CAIR NOX allowance transfer submitted for 
recordation fails to meet the requirements of paragraph (a) of this 
section, the Administrator will not record such transfer.



Sec. 97.162  Notification.

    (a) Notification of recordation. Within 5 business days of 
recordation of a CAIR NOX allowance transfer under Sec. 
97.161, the Administrator will notify the CAIR authorized account 
representatives of both the transferor and transferee accounts.
    (b) Notification of non-recordation. Within 10 business days of 
receipt of a CAIR NOX allowance transfer that fails to meet 
the requirements of Sec. 97.161(a), the Administrator will notify the 
CAIR authorized account representatives of 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 a CAIR 
NOX allowance transfer for recordation following notification 
of non-recordation.



                   Subpart HH_Monitoring and Reporting



Sec. 97.170  General requirements.

    The owners and operators, and to the extent applicable, the CAIR 
designated representative, of a CAIR NOX unit, shall comply 
with the monitoring, recordkeeping, and reporting requirements as 
provided in this subpart and in subpart H of part 75 of this chapter. 
For purposes of complying with such requirements, the definitions in 
Sec. 97.102 and in Sec. 72.2 of this chapter shall apply, and the 
terms ``affected unit,'' ``designated representative,'' and ``continuous 
emission monitoring system'' or ``CEMS'') in part 75 of this chapter 
shall be deemed to refer to the terms ``CAIR NOX unit,`` 
``CAIR designated representative,'' and ``continuous emission monitoring 
system'' (or ``CEMS'') respectively, as defined in Sec. 97.102. The 
owner or operator of a unit that is not a CAIR NOX unit but 
that is monitored under Sec. 75.72(b)(2)(ii) of this chapter shall 
comply with the same monitoring, recordkeeping, and reporting 
requirements as a CAIR NOX unit.
    (a) Requirements for installation, certification, and data 
accounting. The owner or operator of each CAIR NOX unit 
shall:
    (1) Install all monitoring systems required under this subpart for 
monitoring NOX mass emissions and individual unit heat input 
(including all systems required to monitor NOX emission rate, 
NOX concentration, stack gas moisture content, stack gas flow 
rate, CO2 or O2 concentration, 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 under 
Sec. 97.171 and meet all other requirements of this subpart and part 75 
of this chapter applicable to the monitoring systems under paragraph 
(a)(1) of this section; and
    (3) Record, report, and quality-assure the data from the monitoring 
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 monitoring system 
certification and other requirements of paragraphs

[[Page 933]]

(a)(1) and (2) of this section on or before the following dates. The 
owner or operator shall record, report, and quality-assure the data from 
the monitoring systems under paragraph (a)(1) of this section on and 
after the following dates.
    (1) For the owner or operator of a CAIR NOX unit that 
commences commercial operation before July 1, 2007, by January 1, 2008.
    (2) For the owner or operator of a CAIR NOX unit that 
commences commercial operation on or after July 1, 2007, by the later of 
the following dates:
    (i) January 1, 2008; or
    (ii) 90 unit operating days or 180 calendar days, whichever occurs 
first, after the date on which the unit commences commercial operation.
    (3) For the owner or operator of a CAIR NOX unit for 
which construction of a new stack or flue or installation of add-on 
NOX emission controls is completed after the applicable 
deadline under paragraph (b)(1), (2), (4), or (5) of this section, by 90 
unit operating days or 180 calendar days, whichever occurs first, after 
the date on which emissions first exit to the atmosphere through the new 
stack or flue or add-on NOX emissions controls.
    (4) Notwithstanding the dates in paragraphs (b)(1) and (2) of this 
section, for the owner or operator of a unit for which a CAIR opt-in 
permit application is submitted and not withdrawn and a CAIR opt-in 
permit is not yet issued or denied under subpart II of this part, by the 
date specified in Sec. 97.184(b).
    (5) Notwithstanding the dates in paragraphs (b)(1) and (2) of this 
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 CAIR 
NOX opt-in unit enters the CAIR NOX Annual Trading 
Program as provided in Sec. 97.184(g).
    (c) Reporting data. The owner or operator of a CAIR NOX 
unit that does not meet the applicable compliance date set forth in 
paragraph (b) of this section for any monitoring system under paragraph 
(a)(1) of this section shall, for each such monitoring system, 
determine, record, and report maximum potential (or, as appropriate, 
minimum potential) values for NOX concentration, 
NOX emission rate, stack gas flow rate, stack gas moisture 
content, fuel flow rate, and any other parameters required to determine 
NOX mass emissions and 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, as applicable.
    (d) Prohibitions. (1) No owner or operator of a CAIR NOX 
unit shall use any alternative monitoring system, alternative reference 
method, or any other alternative to any requirement of this subpart 
without having obtained prior written approval in accordance with Sec. 
97.175.
    (2) No owner or operator of a CAIR NOX unit shall operate 
the unit so as to discharge, or allow to be discharged, NOX 
emissions to the atmosphere without accounting for all such emissions in 
accordance with the applicable provisions of this subpart and part 75 of 
this chapter.
    (3) No owner or operator of a CAIR NOX unit shall disrupt 
the continuous emission monitoring system, any portion thereof, or any 
other approved emission monitoring method, and thereby avoid monitoring 
and recording NOX mass emissions discharged into the 
atmosphere or heat input, except for periods of recertification or 
periods when calibration, quality assurance testing, or maintenance is 
performed in accordance with the applicable provisions of this subpart 
and part 75 of this chapter.
    (4) No owner or operator of a CAIR NOX unit shall retire 
or permanently discontinue use of the continuous emission monitoring 
system, any component thereof, or any other approved monitoring system 
under this subpart, except under any one of the following circumstances:
    (i) During the period that the unit is covered by an exemption under 
Sec. 97.105 that is in effect;
    (ii) The owner or operator is monitoring emissions from the unit 
with another certified monitoring system approved, in accordance with 
the applicable provisions of this subpart and part

[[Page 934]]

75 of this chapter, by the Administrator for use at that unit that 
provides emission data for the same pollutant or parameter as the 
retired or discontinued monitoring system; or
    (iii) The CAIR designated representative submits notification of the 
date of certification testing of a replacement monitoring system for the 
retired or discontinued monitoring system in accordance with Sec. 
97.171(d)(3)(i).
    (e) Long-term cold storage. The owner or operator of a CAIR 
NOX unit is subject to the applicable provisions of part 75 
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 be 
exempt from the initial certification requirements of this section for a 
monitoring system under Sec. 97.170(a)(1) if the following conditions 
are met:
    (1) The monitoring system has been previously certified in 
accordance with part 75 of this chapter; and
    (2) The applicable quality-assurance and quality-control 
requirements of Sec. 75.21 of this chapter and appendix B, appendix D, 
and appendix E to part 75 of this chapter are fully met for the 
certified monitoring system described in paragraph (a)(1) of this 
section.
    (b) The recertification provisions of this section shall apply to a 
monitoring system under Sec. 97.170(a)(1) exempt from initial 
certification requirements under paragraph (a) of this section.
    (c) If the Administrator has previously approved a petition under 
Sec. 75.17(a) or (b) of this chapter for apportioning the 
NOX emission rate measured in a common stack or a petition 
under Sec. 75.66 of this chapter for an alternative to a requirement in 
Sec. 75.12 or Sec. 75.17 of this chapter, the CAIR designated 
representative shall resubmit the petition to the Administrator under 
Sec. 97.175 to determine whether the approval applies under the CAIR 
NOX Annual Trading Program.
    (d) Except as provided in paragraph (a) of this section, the owner 
or operator of a CAIR NOX unit shall comply with the 
following initial certification and recertification procedures for a 
continuous monitoring system (i.e., a continuous emission monitoring 
system and an excepted monitoring system under appendices D and 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 mass emissions excepted 
monitoring methodology under Sec. 75.19 of this chapter or that 
qualifies to use an alternative monitoring system under subpart E of 
part 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 or operator 
shall ensure that each continuous monitoring system under Sec. 
97.170(a)(1) (including the automated data acquisition and handling 
system) successfully completes all of the initial certification testing 
required under Sec. 75.20 of this chapter by the applicable deadline in 
Sec. 97.170(b). In addition, whenever the owner or operator installs a 
monitoring system to meet the requirements of this subpart in a location 
where no such monitoring system was previously installed, initial 
certification in accordance with Sec. 75.20 of this chapter is 
required.
    (2) Requirements for recertification. Whenever the owner or operator 
makes a replacement, modification, or change in any certified continuous 
emission monitoring system under Sec. 97.170(a)(1) that may 
significantly affect the ability of the system to accurately measure or 
record NOX mass emissions or heat input rate or to meet the 
quality-assurance and quality-control requirements of Sec. 75.21 of 
this chapter or appendix B to part 75 of this chapter, the owner or 
operator shall recertify the monitoring system 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's operation that may significantly change the stack 
flow or concentration profile, the owner or operator shall recertify 
each continuous emission monitoring system whose accuracy is potentially 
affected by the change, in accordance with Sec. 75.20(b) of this 
chapter. Examples of changes to a continuous

[[Page 935]]

emission monitoring system that require recertification include 
replacement of the analyzer, complete replacement of an existing 
continuous emission monitoring system, or change in location or 
orientation of the sampling probe or site. Any fuel flowmeter system, 
and any excepted NOX monitoring system under appendix E to 
part 75 of this chapter, under Sec. 97.170(a)(1) are subject to the 
recertification requirements in Sec. 75.20(g)(6) of this chapter.
    (3) Approval process for initial certification and recertification. 
Paragraphs (d)(3)(i) through (iv) of this section apply to both initial 
certification and recertification of a continuous monitoring system 
under Sec. 97.170(a)(1). For recertifications, 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 designated 
representative shall submit to the appropriate EPA Regional Office and 
the Administrator written notice of the dates of certification testing, 
in accordance with Sec. 97.173.
    (ii) Certification application. The CAIR designated representative 
shall submit to the Administrator a certification application for each 
monitoring system. A complete certification application shall include 
the information specified in Sec. 75.63 of this chapter.
    (iii) Provisional certification date. The provisional certification 
date for a monitoring system shall be determined in accordance with 
Sec. 75.20(a)(3) of this chapter. A provisionally certified monitoring 
system may be used under the CAIR NOX Annual Trading Program 
for a period not to exceed 120 days after receipt by the Administrator 
of the complete certification application for the monitoring system 
under paragraph (d)(3)(ii) of this section. Data measured and recorded 
by the provisionally certified monitoring system, in accordance with the 
requirements of part 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 
provisional certification by issuing a notice of disapproval within 120 
days of the date of receipt of the complete certification application by 
the Administrator.
    (iv) Certification application approval process. The Administrator 
will issue a written notice of approval or disapproval of the 
certification application to the owner or operator within 120 days of 
receipt of the complete certification application under paragraph 
(d)(3)(ii) of this section. In the event the Administrator does not 
issue such a notice within such 120-day period, each monitoring system 
that meets the applicable performance requirements of part 75 of this 
chapter and is included in the certification application will be deemed 
certified for use under the CAIR NOX Annual Trading Program.
    (A) Approval notice. If the certification application is complete 
and shows that each monitoring system meets the applicable performance 
requirements of part 75 of this chapter, then the Administrator will 
issue a written notice of approval of the certification application 
within 120 days of receipt.
    (B) Incomplete application notice. If the certification application 
is not complete, then the Administrator will issue a written notice of 
incompleteness that sets a reasonable date by which the CAIR designated 
representative must submit the additional information required to 
complete the certification application. If the CAIR designated 
representative does not comply with the notice of incompleteness by the 
specified date, then the Administrator may issue a notice of disapproval 
under paragraph (d)(3)(iv)(C) of this section. The 120-day review period 
shall not begin before receipt of a complete certification application.
    (C) Disapproval notice. If the certification application shows that 
any monitoring system does not meet the performance requirements of part 
75 of this chapter or if the certification application is incomplete and 
the requirement for disapproval under paragraph (d)(3)(iv)(B) of this 
section is met, then the Administrator will issue

[[Page 936]]

a written notice of disapproval of the certification application. Upon 
issuance of such notice of disapproval, the provisional certification is 
invalidated by the Administrator and the data measured and recorded by 
each uncertified monitoring system shall not be considered valid 
quality-assured data beginning with the date and hour of provisional 
certification (as defined under Sec. 75.20(a)(3) of this chapter). The 
owner or operator shall follow the procedures for loss of certification 
in paragraph (d)(3)(v) of this section for each monitoring system that 
is disapproved for initial certification.
    (D) Audit decertification. The Administrator may issue a notice of 
disapproval of the certification status of a monitor in accordance with 
Sec. 97.172(b).
    (v) Procedures for loss of certification. If the Administrator 
issues a notice of disapproval of a certification application under 
paragraph (d)(3)(iv)(C) of this section or a notice of 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 unit operation 
during the period of invalid data specified under Sec. 
75.20(a)(4)(iii), Sec. 75.20(g)(7), or Sec. 75.21(e) of this chapter 
and continuing until the applicable 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 potential NOX 
emission rate, as defined in Sec. 72.2 of this chapter.
    (2) For a disapproved NOX pollutant concentration monitor 
and disapproved flow monitor, respectively, the maximum potential 
concentration of NOX and the maximum potential flow rate, as 
defined in sections 2.1.2.1 and 2.1.4.1 of appendix A to part 75 of this 
chapter.
    (3) For a disapproved moisture monitoring system and disapproved 
diluent gas monitoring system, respectively, the minimum potential 
moisture percentage and either the maximum potential CO2 
concentration or the minimum potential O2 concentration (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 maximum potential 
fuel flow rate, as defined in section 2.4.2.1 of appendix D to part 75 
of this chapter.
    (5) For a disapproved excepted NOX monitoring system 
under appendix E to part 75 of this chapter, the fuel-specific maximum 
potential NOX emission rate, as defined in Sec. 72.2 of this 
chapter.
    (B) The CAIR designated representative shall submit a notification 
of certification retest dates and a new certification application in 
accordance with paragraphs (d)(3)(i) and (ii) of this section.
    (C) The owner or operator shall repeat all certification tests or 
other requirements that were failed by the monitoring system, as 
indicated in the Administrator's notice of disapproval, no later than 30 
unit operating days after the date of issuance of the notice of 
disapproval.
    (e) Initial certification and recertification procedures for units 
using the low mass emission excepted methodology under Sec. 75.19 of 
this chapter. The owner or operator of a unit qualified to use the low 
mass emissions (LME) excepted methodology under Sec. 75.19 of this 
chapter shall meet the applicable certification and recertification 
requirements in Sec. Sec. 75.19(a)(2) and 75.20(h) of this chapter. If 
the owner or operator of such a unit elects to certify a fuel flowmeter 
system for heat input determination, the owner or operator shall also 
meet the certification and recertification requirements in Sec. 
75.20(g) of this chapter.
    (f) Certification/recertification procedures for alternative 
monitoring systems. The CAIR designated representative of each unit for 
which the owner or operator intends to use an alternative monitoring 
system approved by the Administrator under subpart E of part 75 of this 
chapter shall comply with the applicable notification and 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 validation 
requirements of part 75 of this chapter, data shall be substituted using 
the applicable missing data procedures in subpart D or subpart H of, or

[[Page 937]]

appendix D or appendix E to, part 75 of this chapter.
    (b) Audit decertification. Whenever both an audit of a monitoring 
system and a review of the initial certification or recertification 
application reveal that any monitoring system should not have been 
certified or recertified because it did not meet a particular 
performance specification or other requirement under Sec. 97.171 or the 
applicable provisions of part 75 of this chapter, both at the time of 
the initial certification or recertification application submission and 
at the time of the audit, the Administrator will issue a notice of 
disapproval of the certification status of such monitoring system. For 
the purposes of this paragraph, an audit shall be either a field audit 
or an audit of any information submitted to the permitting authority or 
the Administrator. By issuing the notice of disapproval, the 
Administrator revokes prospectively the certification status of the 
monitoring system. The data measured and recorded by the monitoring 
system shall not be considered valid quality-assured data from the date 
of issuance of the notification of the revoked certification status 
until the date and time that the owner or operator completes 
subsequently approved initial certification or recertification tests for 
the monitoring system. The owner or operator shall follow the applicable 
initial certification or recertification procedures in Sec. 97.171 for 
each disapproved monitoring system.



Sec. 97.173  Notifications.

    The CAIR designated representative for a CAIR NOX unit 
shall submit written notice to the Administrator in accordance with 
Sec. 75.61 of this chapter.



Sec. 97.174  Recordkeeping and reporting.

    (a) General provisions. The CAIR designated representative shall 
comply with all recordkeeping and reporting requirements in this 
section, the applicable recordkeeping and reporting requirements under 
Sec. 75.73 of this chapter, and the requirements of Sec. 97.110(e)(1).
    (b) Monitoring plans. The owner or operator of a CAIR NOX 
unit shall comply with requirements of Sec. 75.73(c) and (e) of this 
chapter and, for a unit for which a CAIR opt-in permit application is 
submitted and not withdrawn and a CAIR opt-in permit is not yet issued 
or denied under subpart II of this part, Sec. Sec. 97.183 and 
97.184(a).
    (c) Certification applications. The CAIR designated representative 
shall submit an application to the Administrator within 45 days after 
completing all initial certification or recertification tests required 
under Sec. 97.171, including the information required under Sec. 75.63 
of this chapter.
    (d) Quarterly reports. The CAIR designated representative shall 
submit quarterly reports, as follows:
    (1) The CAIR designated representative shall report the 
NOX mass emissions data and heat input data for the CAIR 
NOX unit, in an electronic quarterly report in a format 
prescribed by the Administrator, for each calendar quarter beginning 
with:
    (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 after July 
1, 2007, the calendar quarter corresponding to the earlier of the date 
of provisional certification or the applicable deadline for initial 
certification under Sec. 97.170(b), unless that quarter is the third or 
fourth quarter of 2007, in which case reporting shall commence in the 
quarter covering January 1, 2008 through March 31, 2008;
    (iii) Notwithstanding paragraphs (d)(1)(i) and (ii) of this section, 
for a unit for which a CAIR opt-in permit application is submitted and 
not withdrawn and a CAIR opt-in permit is not yet issued or denied under 
subpart II of this part, the calendar quarter corresponding to the date 
specified in Sec. 97.184(b); and
    (iv) Notwithstanding paragraphs (d)(1)(i) and (ii) of this section, 
for a CAIR NOX opt-in unit under subpart II of this part, the 
calendar quarter corresponding to the date on which the CAIR 
NOX opt-in unit enters the CAIR NOX Annual Trading 
Program as provided in Sec. 97.184(g).
    (2) The CAIR designated representative shall submit each quarterly 
report to the Administrator within 30 days

[[Page 938]]

following the end of the calendar quarter covered by the report. 
Quarterly reports shall be submitted in the manner specified in Sec. 
75.73(f) of this chapter.
    (3) For CAIR NOX units that are also subject to an Acid 
Rain emissions limitation or the CAIR NOX Ozone Season 
Trading Program, CAIR SO2 Trading Program, or Hg Budget 
Trading Program, quarterly reports shall include the applicable data and 
information required by subparts F through I of part 75 of this chapter 
as applicable, in addition to the NOX mass emission data, 
heat input data, and other information required by this subpart.
    (e) Compliance certification. The CAIR designated representative 
shall submit to the Administrator a compliance certification (in a 
format prescribed by the Administrator) in support of each quarterly 
report based on reasonable inquiry of those persons with primary 
responsibility for ensuring that all of the unit's emissions are 
correctly and fully monitored. The certification shall state that:
    (1) The monitoring data submitted were recorded in accordance with 
the applicable requirements of this subpart and part 75 of this chapter, 
including the quality assurance procedures and specifications; and
    (2) For a unit with add-on NOX emission controls and for 
all hours where NOX data are substituted in accordance with 
Sec. 75.34(a)(1) of this chapter, the add-on emission controls were 
operating within the range of parameters listed in the quality 
assurance/quality control program under appendix B to part 75 of this 
chapter and the substitute data values do not systematically 
underestimate NOX emissions.



Sec. 97.175  Petitions.

    The CAIR designated representative of a CAIR NOX unit may 
submit a petition under Sec. 75.66 of this chapter to the Administrator 
requesting approval to apply an alternative to any requirement of this 
subpart. Application of an alternative to any requirement of this 
subpart is in accordance with this subpart only to the extent that the 
petition is approved in writing by the Administrator, 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 the 
Administrator approves, a State implementation plan revision in 
accordance with Sec. 51.123(p)(3)(i), (ii), or (iii) of this chapter 
establishing procedures concerning CAIR opt-in units;
    (b) Is not a CAIR NOX unit under Sec. 97.104 and is not 
covered by a retired unit exemption under Sec. 97.105 that is in 
effect;
    (c) Is not covered by a retired unit exemption under Sec. 72.8 of 
this chapter that is in effect;
    (d) Has or is required or qualified to have a title V operating 
permit or other federally enforceable permit; and
    (e) Vents all of its emissions to a stack and can meet the 
monitoring, recordkeeping, and reporting requirements of subpart HH of 
this part.



Sec. 97.181  General.

    (a) Except as otherwise provided in Sec. Sec. 97.101 through 
97.104, Sec. Sec. 97.106 through 97.108, and subparts BB and CC and 
subparts FF through HH of this part, a CAIR NOX opt-in unit 
shall be treated as a CAIR NOX unit 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 CAIR 
opt-in permit application is submitted and not withdrawn and a CAIR opt-
in permit is not yet issued or denied under this subpart, such unit 
shall be treated as a CAIR NOX unit before issuance of 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 a CAIR 
opt-in permit application is submitted and not withdrawn and a CAIR opt-
in permit is not yet issued or denied under this subpart, located at the 
same source as one or more CAIR NOX units shall have the same 
CAIR designated representative and alternate CAIR designated 
representative as such CAIR NOX units.

[[Page 939]]



Sec. 97.183  Applying for CAIR opt-in permit.

    (a) Applying for initial CAIR opt-in permit. The CAIR designated 
representative of a unit meeting the requirements for a CAIR 
NOX opt-in unit in Sec. 97.180 may apply for an initial CAIR 
opt-in permit at any time, except as provided under Sec. 97.186(f) and 
(g), and, in order to apply, must submit the following:
    (1) A complete CAIR permit application under Sec. 97.122;
    (2) A certification, in a format specified by the permitting 
authority, that the unit:
    (i) Is not a CAIR NOX unit under Sec. 97.104 and is not 
covered by a retired unit exemption under Sec. 97.105 that is in 
effect;
    (ii) Is not covered by a retired unit exemption under Sec. 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 the 6 
months immediately preceding submission of the CAIR permit application 
under Sec. 97.122;
    (3) A monitoring plan in accordance with subpart HH of this part;
    (4) A complete certificate of representation under Sec. 97.113 
consistent with Sec. 97.182, if no CAIR designated representative has 
been previously designated for the source that includes the unit; and
    (5) A statement, in a format specified by the permitting authority, 
whether the CAIR designated representative requests that the unit be 
allocated CAIR NOX allowances under Sec. 97.188(b) or Sec. 
97.188(c) (subject to the conditions in Sec. Sec. 97.184(h) and 
97.186(g)), to the extent such allocation is provided in a State 
implementation plan revision submitted in accordance with Sec. 
51.123(p)(3)(i), (ii), or (iii) of this chapter and approved by the 
Administrator. If allocation under Sec. 97.188(c) is requested, this 
statement shall include a statement that the owners and operators of the 
unit intend to repower 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 representative of a 
CAIR NOX opt-in unit shall submit a complete CAIR permit 
application under Sec. 97.122 to renew the CAIR opt-in unit permit in 
accordance with the permitting authority's regulations for title V 
operating permits, or the permitting authority's regulations for other 
federally enforceable permits if applicable, addressing permit renewal.
    (2) Unless the permitting authority issues a notification of 
acceptance of withdrawal of the CAIR NOX opt-in unit from the 
CAIR NOX Annual Trading Program in accordance with Sec. 
97.186 or the unit becomes a CAIR NOX unit under Sec. 
97.104, the CAIR NOX opt-in unit shall remain subject to the 
requirements for a CAIR NOX opt-in unit, even if the CAIR 
designated representative for the CAIR NOX opt-in unit fails 
to submit a CAIR permit application that is required for renewal of the 
CAIR opt-in permit under paragraph (b)(1) of this section.



Sec. 97.184  Opt-in process.

    The permitting authority will issue or deny a CAIR opt-in permit for 
a unit for which an initial application for a CAIR opt-in permit under 
Sec. 97.183 is submitted in accordance with the following, to the 
extent provided in a State implementation plan revision 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 permitting authority and 
the Administrator will determine, on an interim basis, the sufficiency 
of the monitoring plan accompanying the initial application for a CAIR 
opt-in permit under Sec. 97.183. A monitoring plan is sufficient, for 
purposes of interim review, if the plan appears to contain information 
demonstrating that the NOX emissions rate and heat input of 
the unit and all other applicable parameters are monitored and reported 
in accordance with subpart HH of this part. A determination of 
sufficiency shall not be construed as acceptance or approval of the 
monitoring plan.
    (b) Monitoring and reporting. (1)(i) If the permitting authority and 
the Administrator determine that the monitoring plan is sufficient under 
paragraph (a) of this section, the owner or operator shall monitor and 
report the NOX emissions rate and the heat input

[[Page 940]]

of the unit and all other applicable parameters, in accordance with 
subpart HH of this part, starting on the date of certification of the 
appropriate monitoring systems under subpart HH of this part and 
continuing until a CAIR opt-in permit is denied under Sec. 97.184(f) 
or, if a CAIR opt-in permit is issued, the date and time when the unit 
is withdrawn from the CAIR NOX Annual Trading Program in 
accordance with Sec. 97.186.
    (ii) The monitoring and reporting under paragraph (b)(1)(i) of this 
section shall include the entire control period immediately before the 
date on which the unit enters the CAIR NOX Annual Trading 
Program under Sec. 97.184(g), during which period monitoring system 
availability must not be less than 90 percent under subpart HH of this 
part and the unit must be in full compliance with any applicable State 
or Federal emissions or emissions-related requirements.
    (2) To the extent the NOX emissions rate and the heat 
input of the unit are monitored and reported in accordance with subpart 
HH of this part for one or more control periods, in addition to the 
control period under paragraph (b)(1)(ii) of this section, during which 
control periods monitoring system availability is not less than 90 
percent under subpart HH of this part and the unit is in full compliance 
with any applicable State or Federal emissions or emissions-related 
requirements and which control periods begin not more than 3 years 
before the unit enters the CAIR NOX Annual Trading Program 
under Sec. 97.184(g), such information shall be used as provided in 
paragraphs (c) and (d) of this section.
    (c) Baseline heat input. The unit's baseline heat input shall equal:
    (1) If the unit's NOX emissions rate and heat input are 
monitored and reported for only one control period, in accordance with 
paragraph (b)(1) of this section, the unit's total heat input (in mmBtu) 
for the control period; or
    (2) If the unit's NOX emissions rate and heat input are 
monitored and reported for more than one control period, in accordance 
with paragraphs (b)(1) and (2) of this section, the average of the 
amounts of the unit's total heat input (in mmBtu) for the control 
periods under paragraphs (b)(1)(ii) and (2) of this section.
    (d) Baseline NOX emission rate. The unit's baseline NOX 
emission rate shall equal:
    (1) If the unit's NOX emissions rate and heat input are 
monitored and reported for only one control period, in accordance with 
paragraph (b)(1) of this section, the unit's NOX emissions 
rate (in lb/mmBtu) for the control period;
    (2) If the unit's NOX emissions rate and heat input are 
monitored and reported for more than one control period, in accordance 
with paragraphs (b)(1) and (2) of this section, and the unit does not 
have add-on NOX emission controls during any such control 
periods, the average of the amounts of the unit's NOX 
emissions rate (in lb/mmBtu) for the control periods under paragraphs 
(b)(1)(ii) and (2) of this section; or
    (3) If the unit's NOX emissions rate and heat input are 
monitored and reported for more than one control period, in accordance 
with paragraphs (b)(1) and (2) of this section, and the unit has add-on 
NOX emission controls during any such control periods, the 
average of the amounts of the unit's NOX emissions rate (in 
lb/mmBtu) for such control periods during which the unit has add-on 
NOX emission controls.
    (e) Issuance of CAIR opt-in permit. After calculating the baseline 
heat input and the baseline NOX emissions rate for the unit 
under paragraphs (c) and (d) of this section and if the permitting 
authority determines that the CAIR designated representative shows that 
the unit meets the requirements for a CAIR NOX opt-in unit in 
Sec. 97.180 and meets the elements certified in Sec. 97.183(a)(2), the 
permitting authority will issue a CAIR opt-in permit. The permitting 
authority will provide a copy of the CAIR opt-in permit to the 
Administrator, who will then establish a compliance account for the 
source that includes the CAIR NOX opt-in unit unless 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 any time before 
issuance of a CAIR opt-in

[[Page 941]]

permit for the unit, the permitting authority determines that the CAIR 
designated representative fails to show that the unit meets the 
requirements for a CAIR NOX opt-in unit in Sec. 97.180 or 
meets the elements certified in Sec. 97.183(a)(2), the permitting 
authority will issue a denial of a CAIR opt-in permit for the unit.
    (g) Date of entry into CAIR NOX Annual Trading Program. A 
unit for which an initial CAIR opt-in permit is issued by the permitting 
authority shall become a CAIR NOX opt-in unit, and a CAIR 
NOX unit, as of the later of January 1, 2009 or January 1 of 
the first control period during which such CAIR opt-in permit is issued.
    (h) Repowered CAIR NOX opt-in unit. (1) If CAIR 
designated representative requests, and the permitting authority issues 
a CAIR opt-in permit providing for, allocation to a CAIR NOX 
opt-in unit of CAIR NOX allowances under Sec. 97.188(c) and 
such unit is repowered after its date of entry into the CAIR 
NOX Annual Trading Program under paragraph (g) of this 
section, the repowered unit shall be treated as a CAIR NOX 
opt-in unit replacing the original CAIR NOX opt-in unit, as 
of the date of start-up of the repowered unit's combustion chamber.
    (2) Notwithstanding paragraphs (c) and (d) of this section, as of 
the date of start-up under paragraph (h)(1) of this section, the 
repowered unit shall be deemed to have the same date of commencement of 
operation, date of commencement of commercial operation, baseline heat 
input, and baseline NOX emission rate as the original CAIR 
NOX opt-in unit, and the original CAIR NOX opt-in 
unit shall no longer be treated as a CAIR NOX 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 application 
under 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 under Sec. 
97.184(d);
    (5) A statement whether the unit is to be allocated CAIR 
NOX allowances under Sec. 97.188(b) or Sec. 97.188(c) 
(subject to the conditions in Sec. Sec. 97.184(h) and 97.186(g));
    (6) A statement that the unit may withdraw from the CAIR 
NOX Annual Trading Program only in accordance with Sec. 
97.186; and
    (7) A statement that the unit is subject to, and the owners and 
operators of the unit must comply with, the requirements of Sec. 
97.187.
    (b) Each CAIR opt-in permit is deemed to incorporate automatically 
the definitions of terms under Sec. 97.102 and, upon recordation by the 
Administrator under subpart FF or GG of this part or this subpart, every 
allocation, transfer, or deduction of CAIR NOX allowances to 
or from the compliance account of the source that includes a CAIR 
NOX opt-in unit covered by the CAIR opt-in permit.
    (c) The CAIR opt-in permit shall be included, in a format specified 
by the permitting authority, in the CAIR permit for the source where the 
CAIR NOX opt-in unit is located and in a title V operating 
permit or other federally enforceable permit for the source.



Sec. 97.186  Withdrawal from CAIR NOX Annual Trading Program.

    Except as provided under paragraph (g) of this section, a CAIR 
NOX opt-in unit may withdraw from the CAIR NOX 
Annual Trading Program, but only if the permitting authority issues a 
notification to the CAIR designated representative of the CAIR 
NOX opt-in unit of the acceptance of the withdrawal of the 
CAIR NOX opt-in unit in accordance with paragraph (d) of this 
section.
    (a) Requesting withdrawal. In order to withdraw a CAIR 
NOX opt-in unit from the CAIR NOX Annual Trading 
Program, the CAIR designated representative of the CAIR NOX 
opt-in unit shall submit to the permitting authority a request to 
withdraw effective as of midnight of December 31 of a specified calendar 
year, which date must be at least 4 years after December 31 of the year 
of entry into the CAIR NOX Annual Trading Program under Sec. 
97.184(g).

[[Page 942]]

The request must be submitted no later than 90 days before the requested 
effective date of withdrawal.
    (b) Conditions for withdrawal. Before a CAIR NOX opt-in 
unit covered by a request under paragraph (a) of this section may 
withdraw from the CAIR NOX Annual Trading Program and the 
CAIR opt-in permit may be terminated under paragraph (e) of this 
section, the following conditions must be met:
    (1) For the control period ending on the date on which the 
withdrawal is to be effective, the source that includes the CAIR 
NOX opt-in unit must meet the requirement to hold CAIR 
NOX allowances under Sec. 97.106(c) and cannot have any 
excess emissions.
    (2) After the requirement for withdrawal under paragraph (b)(1) of 
this section is met, the Administrator will deduct from the compliance 
account of the source that includes the CAIR NOX opt-in unit 
CAIR NOX allowances equal in amount to and allocated for the 
same or a prior control period as any CAIR NOX allowances 
allocated to the CAIR NOX opt-in unit under Sec. 97.188 for 
any control period for which the withdrawal is to be effective. If there 
are no remaining CAIR NOX units at the source, the 
Administrator will close the compliance account, and the owners and 
operators of the CAIR NOX opt-in unit may submit a CAIR 
NOX allowance transfer for any remaining CAIR NOX 
allowances to another CAIR NOX Allowance Tracking System in 
accordance with subpart GG of this part.
    (c) Notification. (1) After the requirements for withdrawal under 
paragraphs (a) and (b) of this section are met (including deduction of 
the full amount of CAIR NOX allowances required), the 
permitting authority will issue a notification to the CAIR designated 
representative of the CAIR NOX opt-in unit of the acceptance 
of the withdrawal of the CAIR NOX opt-in unit as of midnight 
on December 31 of the calendar year for which the withdrawal was 
requested.
    (2) If the requirements for withdrawal under paragraphs (a) and (b) 
of this section are not met, the permitting authority will issue a 
notification to the CAIR designated representative of the CAIR 
NOX opt-in unit that the CAIR NOX opt-in unit's 
request to withdraw is denied. Such CAIR NOX opt-in unit 
shall continue to be a CAIR NOX opt-in unit.
    (d) Permit amendment. After the permitting authority issues a 
notification under paragraph (c)(1) of this section that the 
requirements for withdrawal have been met, the permitting authority will 
revise the CAIR permit covering the CAIR NOX opt-in unit to 
terminate the CAIR opt-in permit for such unit as of the effective date 
specified under paragraph (c)(1) of this section. The unit shall 
continue to be a CAIR NOX opt-in unit until the effective 
date of the termination and shall comply with all requirements under the 
CAIR NOX Annual Trading Program concerning any control 
periods for which the unit is a CAIR NOX opt-in unit, even if 
such requirements arise or must be complied with after the withdrawal 
takes effect.
    (e) Reapplication upon failure to meet conditions of withdrawal. If 
the permitting authority denies the CAIR NOX opt-in unit's 
request to withdraw, the CAIR designated representative may submit 
another request to withdraw in accordance with paragraphs (a) and (b) of 
this section.
    (f) Ability to reapply to the CAIR NOX Annual Trading 
Program. Once a CAIR NOX opt-in unit withdraws from the CAIR 
NOX Annual Trading Program and its CAIR opt-in permit is 
terminated under this section, the CAIR designated representative may 
not submit another application for a CAIR opt-in permit under Sec. 
97.183 for such CAIR NOX opt-in unit before the date that is 
4 years after the date on which the withdrawal became effective. Such 
new application for a CAIR opt-in permit will be treated as an initial 
application for a CAIR opt-in permit under Sec. 97.184.
    (g) Inability to withdraw. Notwithstanding paragraphs (a) through 
(f) of this section, a CAIR NOX opt-in unit shall not be 
eligible to withdraw from the CAIR NOX Annual Trading Program 
if the CAIR designated representative of the CAIR NOX opt-in 
unit requests, and the permitting authority issues a CAIR NOX 
opt-in permit providing for, allocation to the CAIR NOX opt-
in unit of CAIR NOX allowances under Sec. 97.188(c).

[[Page 943]]



Sec. 97.187  Change in regulatory status.

    (a) Notification. If a CAIR NOX opt-in unit becomes a 
CAIR NOX unit under Sec. 97.104, then the CAIR designated 
representative shall notify in writing the permitting authority and the 
Administrator of such change in the CAIR NOX opt-in unit's 
regulatory status, within 30 days of such change.
    (b) Permitting authority's and Administrator's actions. (1) If a 
CAIR NOX opt-in unit becomes a CAIR NOX unit under 
Sec. 97.104, the permitting authority will revise the CAIR 
NOX opt-in unit's CAIR opt-in permit to meet the requirements 
of a CAIR permit under Sec. 97.123, and remove the CAIR opt-in permit 
provisions, as of the date on which the CAIR NOX opt-in unit 
becomes a CAIR NOX unit under Sec. 97.104.
    (2)(i) The Administrator will deduct from the compliance account of 
the source that includes the CAIR NOX opt-in unit that 
becomes a CAIR NOX unit under Sec. 97.104, CAIR 
NOX allowances equal in amount to and allocated for the same 
or a prior control period as:
    (A) Any CAIR NOX allowances allocated to the CAIR 
NOX opt-in unit under Sec. 97.188 for any control period 
after the date on which the CAIR NOX opt-in unit becomes a 
CAIR NOX unit under Sec. 97.104; and
    (B) If the date on which the CAIR NOX opt-in unit becomes 
a CAIR NOX unit under Sec. 97.104 is not December 31, the 
CAIR NOX allowances allocated to the CAIR NOX opt-
in unit under Sec. 97.188 for the control period that includes the date 
on which the CAIR NOX opt-in unit becomes a CAIR 
NOX unit under Sec. 97.104, multiplied by the ratio of the 
number of days, in the control period, starting with the date on which 
the CAIR NOX opt-in unit becomes a CAIR NOX unit 
under Sec. 97.104 divided by the total number of days in the control 
period and rounded to the nearest whole allowance as appropriate.
    (ii) The CAIR designated representative shall ensure that the 
compliance account of the source that includes the CAIR NOX 
opt-in unit that becomes a CAIR NOX unit under Sec. 97.104 
contains the CAIR NOX allowances 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 CAIR 
NOX opt-in unit becomes a CAIR NOX unit under 
Sec. 97.104, the CAIR NOX opt-in unit will be allocated CAIR 
NOX allowances under Sec. 97.142.
    (ii) If the date on which the CAIR NOX opt-in unit 
becomes a CAIR NOX unit under Sec. 97.104 is not December 
31, the following amount of CAIR NOX allowances will be 
allocated to the CAIR NOX opt-in unit (as a CAIR 
NOX unit) under ( 97.142 for the control period that includes 
the date on which the CAIR NOX opt-in unit becomes a CAIR 
NOX unit under Sec. 97.104:
    (A) The amount of CAIR NOX allowances otherwise allocated 
to the CAIR NOX opt-in unit (as a CAIR NOX unit) 
under Sec. 97.142 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 opt-in unit becomes a 
CAIR NOX unit under 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 NOX opt-in 

units.

    (a) Timing requirements. (1) When the CAIR opt-in permit is issued 
under Sec. 97.184(e), the permitting authority will allocate CAIR 
NOX allowances to the CAIR NOX opt-in unit, and 
submit to the Administrator the allocation for the control period in 
which a CAIR NOX opt-in unit enters the CAIR NOX 
Annual Trading Program under Sec. 97.184(g), in accordance with 
paragraph (b) or (c) of this section.
    (2) By no later than October 31 of the control period after the 
control period in which a CAIR NOX opt-in unit enters the 
CAIR NOX Annual Trading Program under Sec. 97.184(g) and 
October 31 of each year thereafter, the permitting authority will 
allocate CAIR NOX allowances to the CAIR NOX opt-
in unit, and submit to the Administrator the allocation for the control 
period that includes such submission deadline 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 for which a 
CAIR NOX

[[Page 944]]

opt-in unit is to be allocated CAIR NOX allowances, the 
permitting authority will allocate in accordance with the following 
procedures, if provided in a State implementation plan revision 
submitted in accordance with Sec. 51.123(p)(3)(i), (ii), or (iii) of 
this chapter and approved by the Administrator:
    (1) The heat input (in mmBtu) used for calculating the CAIR 
NOX allowance allocation will be the lesser of:
    (i) The CAIR NOX opt-in unit's baseline heat input 
determined under Sec. 97.184(c); or
    (ii) The CAIR NOX opt-in unit's heat input, as determined 
in accordance with subpart HH of this part, for the immediately prior 
control period, except when the allocation is being calculated for the 
control period in which the CAIR NOX opt-in unit enters the 
CAIR NOX Annual Trading Program under Sec. 97.184(g).
    (2) The NOX emission rate (in lb/mmBtu) used for 
calculating CAIR NOX allowance allocations will be the lesser 
of:
    (i) The CAIR NOX opt-in unit's baseline NOX 
emissions rate (in lb/mmBtu) determined under Sec. 97.184(d) and 
multiplied by 70 percent; or
    (ii) The most stringent State or Federal NOX emissions 
limitation applicable to the CAIR NOX opt-in unit at any time 
during the control period for which CAIR NOX allowances are 
to be allocated.
    (3) The permitting authority will allocate CAIR NOX 
allowances to the CAIR NOX opt-in unit in an amount equaling 
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 nearest whole allowance as 
appropriate.
    (c) Notwithstanding paragraph (b) of this section and if the CAIR 
designated representative requests, and the permitting authority issues 
a CAIR opt-in permit (based on a demonstration of the intent to repower 
stated under Sec. 97.183(a)(5)) providing for, allocation to a CAIR 
NOX opt-in unit of CAIR NOX allowances under this 
paragraph (subject to the conditions in Sec. Sec. 97.184(h) and 
97.186(g)), the permitting authority will allocate to the CAIR 
NOX opt-in unit as follows, if provided in a State 
implementation plan revision submitted in accordance with ( 
51.123(p)(3)(i), (ii), or (iii) of this chapter and approved by the 
Administrator:
    (1) For each control period in 2009 through 2014 for which the CAIR 
NOX opt-in unit is to be allocated CAIR NOX 
allowances,
    (i) The heat input (in mmBtu) used for calculating CAIR 
NOX allowance allocations will be determined as described in 
paragraph (b)(1) of this section.
    (ii) The NOX emission rate (in lb/mmBtu) used for 
calculating CAIR NOX allowance allocations will be the lesser 
of:
    (A) The CAIR NOX opt-in unit's baseline NOX 
emissions rate (in lb/mmBtu) determined under Sec. 97.184(d); or
    (B) The most stringent State or Federal NOX emissions 
limitation applicable to the CAIR NOX opt-in unit at any time 
during the control period in which the CAIR NOX opt-in unit 
enters the CAIR NOX Annual Trading Program under Sec. 
97.184(g).
    (iii) The permitting authority will allocate CAIR NOX 
allowances to the CAIR NOX opt-in unit in an amount equaling 
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 the nearest whole 
allowance as appropriate.
    (2) For each control period in 2015 and thereafter for which the 
CAIR NOX opt-in unit is to be allocated CAIR NOX 
allowances,
    (i) The heat input (in mmBtu) used for calculating the CAIR 
NOX allowance allocations will be determined as described in 
paragraph (b)(1) of this section.
    (ii) The NOX emission rate (in lb/mmBtu) used for 
calculating the CAIR NOX allowance allocation will be the 
lesser of:
    (A) 0.15 lb/mmBtu;
    (B) The CAIR NOX opt-in unit's baseline NOX 
emissions rate (in lb/mmBtu) determined under Sec. 97.184(d); or
    (C) The most stringent State or Federal NOX emissions 
limitation applicable to the CAIR NOX opt-in unit at any time 
during the control period for

[[Page 945]]

which CAIR NOX allowances are to be allocated.
    (iii) The permitting authority will allocate CAIR NOX 
allowances to the CAIR NOX opt-in unit in an amount equaling 
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 the nearest whole 
allowance as appropriate.
    (d) Recordation. If provided in a State implementation plan revision 
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 of the 
source that includes the CAIR NOX opt-in unit, the CAIR 
NOX allowances allocated 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 CAIR 
NOX opt-in unit enters the CAIR NOX Annual Trading 
Program under Sec. 97.184(g) and December 1 of each year thereafter, 
the Administrator will record, in the compliance account of the source 
that includes the CAIR NOX opt-in unit, the CAIR 
NOX allowances allocated by the permitting authority to the 
CAIR NOX opt-in unit under paragraph (a)(2) of this section.



  Sec. Appendix A to Subpart II of Part 97--States With Approved State 

  Implementation Plan Revisions Concerning CAIR NOX Opt-In 

                                  Units

    1. The following States have State Implementation Plan revisions 
under Sec. 51.123(p)(3) of this chapter approved by the Administrator 
and establishing procedures providing for CAIR NOX opt-in 
units under subpart II of this part and allocation of CAIR 
NOX allowances to such units under Sec. 97.188(b):
    Indiana
    Michigan
     North Carolina
     Ohio
     South Carolina
     Tennessee
    2. The following States have State Implementation Plan revisions 
under Sec. 51.123(p)(3) of this chapter approved by the Administrator 
and establishing procedures providing for CAIR NOX opt-in 
units under subpart II of this part and allocation of CAIR 
NOX allowances to such units under Sec. 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 FR 59487, Oct. 22, 
2007; 72 FR 72262, Dec. 20, 2007; 73 FR 6040, Feb. 1, 2008]



         Subpart AAA_CAIR SO2 Trading Program General Provisions



Sec. 97.201  Purpose.

    This subpart and subparts BBB through III set forth the general 
provisions and the designated representative, permitting, allowance, 
monitoring, and opt-in provisions for the Federal Clean Air Interstate 
Rule (CAIR) SO2 Trading Program, under section 110 of the 
Clean Air Act and Sec. 52.36 of this chapter, as a means of mitigating 
interstate transport of fine particulates and sulfur dioxide.



Sec. 97.202  Definitions.

    The terms used in this subpart and subparts BBB through III shall 
have the meanings set forth in this section as follows:
    Account number means the identification number given by the 
Administrator to each CAIR SO2 Allowance Tracking System 
account.
    Acid Rain emissions limitation means a limitation on emissions of 
sulfur dioxide or nitrogen oxides under the Acid Rain Program.
    Acid Rain Program means a multi-state sulfur dioxide and nitrogen 
oxides air pollution control and emission reduction program established 
by the Administrator under title IV of the CAA and parts 72 through 78 
of this chapter.
    Administrator means the Administrator of the United States 
Environmental Protection Agency or the Administrator's duly authorized 
representative.
    Allocate or allocation means, with regard to CAIR SO2 
allowances issued under the Acid Rain Program, the determination by the 
Administrator of the amount of such CAIR SO2 allowances to be 
initially credited to a CAIR SO2 unit or other entity and, 
with regard to CAIR SO2 allowances issued

[[Page 946]]

under Sec. 97.288 or provisions of a State implementation plan that are 
approved under Sec. 51.124(o)(1) or (2) or (r) of this chapter, the 
determination by a permitting authority of the amount of such CAIR 
SO2 allowances to be initially credited 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 the first business day 
thereafter (if March 1 is not a business day), immediately following the 
control period and is the deadline by which a CAIR SO2 
allowance transfer must be submitted for recordation in a CAIR 
SO2 source's compliance account in order to be used to meet 
the source's CAIR SO2 emissions limitation for such control 
period in accordance with Sec. 97.254.
    Alternate CAIR designated representative means, for a CAIR 
SO2 source and each CAIR SO2 unit at the source, 
the natural person who is authorized by the owners and operators of the 
source and all such units at the source, in accordance with subparts BBB 
and III of this part, to act on behalf of the CAIR designated 
representative in matters pertaining to the CAIR SO2 Trading 
Program. If the CAIR SO2 source is also a CAIR NOX 
source, then this natural person shall be the same person as the 
alternate CAIR designated representative under the CAIR NOX 
Annual Trading Program. If the CAIR SO2 source is also a CAIR 
NOX Ozone Season source, then this natural person shall be 
the same person as the alternate CAIR designated representative under 
the CAIR NOX Ozone Season Trading Program. If the CAIR 
SO2 source is also subject to the Acid Rain Program, then 
this natural person shall be the same person as the alternate designated 
representative under the Acid Rain Program. If the CAIR SO2 
source is also subject to the Hg Budget Trading Program, then this 
natural person shall be the same person as the alternate Hg designated 
representative under the Hg Budget Trading Program.
    Automated data acquisition and handling system or DAHS means that 
component of the continuous emission monitoring system, or other 
emissions monitoring system approved for use under subpart HHH of this 
part, designed to interpret and convert individual output signals from 
pollutant concentration monitors, flow monitors, diluent gas monitors, 
and other component parts of the monitoring system to produce a 
continuous record of the measured parameters in the measurement units 
required by subpart HHH of this part.
    Biomass means--
    (1) Any organic material grown for the purpose of being converted to 
energy;
    (2) Any organic byproduct of agriculture that can be converted into 
energy; or
    (3) Any material that can be converted into energy and is 
nonmerchantable for other purposes, that is segregated from other 
nonmerchantable material, and that is;
    (i) A forest-related organic resource, including mill residues, 
precommercial thinnings, slash, brush, or byproduct from conversion 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-fired combustion 
device used to produce heat and to transfer heat to recirculating water, 
steam, or other medium.
    Bottoming-cycle cogeneration unit means a cogeneration unit in which 
the energy input to the unit is first used to produce useful thermal 
energy and at least some of the reject heat from the useful thermal 
energy application or process is then used for electricity production.
    CAIR authorized account representative means, with regard to a 
general account, a responsible natural person who is authorized, in 
accordance with subparts BBB, FFF, and III of this part, to transfer and 
otherwise dispose of CAIR SO2 allowances held in the general 
account and, with regard to a compliance account, the CAIR designated 
representative of the source.
    CAIR designated representative means, for a CAIR SO2 
source and each CAIR

[[Page 947]]

SO2 unit at the source, the natural person who is authorized 
by the owners and operators of the source and all such units at the 
source, in accordance with subparts BBB and III of this part, to 
represent and legally bind each owner and operator in matters pertaining 
to the CAIR SO2 Trading Program. If the CAIR SO2 
source is also a CAIR NOX source, then this natural person 
shall be the same person as the CAIR designated representative under the 
CAIR NOX Annual Trading Program. If the CAIR SO2 
source is also a CAIR NOX Ozone Season source, then this 
natural person shall be the same person as the CAIR designated 
representative under the CAIR NOX Ozone Season Trading 
Program. If the CAIR SO2 source is also subject to the Acid 
Rain Program, then this natural person shall be the same person as the 
designated representative under the Acid Rain Program. If the CAIR 
SO2 source is also subject to the Hg Budget Trading Program, 
then this natural person shall be the same person as the Hg designated 
representative under the Hg Budget Trading Program.
    CAIR NOX Annual Trading Program means a multi-state nitrogen oxides 
air pollution control and emission reduction program established by the 
Administrator in accordance with subparts AA through II of this part and 
Sec. 51.123(p) and 52.35 of this chapter or approved and administered 
by the Administrator in accordance with subparts AA through II of part 
96 of this chapter and Sec. 51.123(o)(1) or (2) of this chapter, as a 
means of mitigating interstate transport of fine particulates and 
nitrogen oxides.
    CAIR NOX Ozone Season source means a source that is subject to the 
CAIR NOX Ozone Season Trading Program.
    CAIR NOX Ozone Season Trading Program means a multi-state nitrogen 
oxides air pollution control and emission reduction program established 
by the Administrator in accordance with subparts AAAA through IIII of 
this part and Sec. 51.123(ee) and 52.35 of this chapter or approved and 
administered by the Administrator in accordance with subparts AAAA 
through 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 mitigating interstate 
transport of ozone and nitrogen oxides.
    CAIR NOX source means a source that is subject to the 
CAIR NOX Annual Trading Program.
    CAIR permit means the legally binding and federally enforceable 
written document, or portion of such document, issued by the permitting 
authority under subpart CCC of this part, including any permit 
revisions, specifying the CAIR SO2 Trading Program 
requirements applicable to a CAIR SO2 source, to each CAIR 
SO2 unit at the source, and to the owners and operators and 
the CAIR designated representative of the source and each such unit.
    CAIR SO2 allowance means a limited authorization issued by the 
Administrator under the Acid Rain Program, by a permitting authority 
under Sec. 97.288, or by a permitting authority under provisions of a 
State implementation plan that are approved under Sec. 51.124(o)(1) or 
(2) or (r) of this chapter, to emit sulfur dioxide during the control 
period of the specified calendar year for which the authorization is 
allocated or of any calendar year thereafter under the CAIR 
SO2 Trading Program as follows:
    (1) For one CAIR SO2 allowance allocated for a control 
period in a year before 2010, one ton of sulfur dioxide, except as 
provided in Sec. 97.254(b);
    (2) For one CAIR SO2 allowance allocated for a control 
period in 2010 through 2014, 0.50 ton of sulfur dioxide, except as 
provided in Sec. 97.254(b); and
    (3) For one CAIR SO2 allowance allocated for a control 
period in 2015 or later, 0.35 ton of sulfur dioxide, except as provided 
in Sec. 97.254(b).
    (4) An authorization to emit sulfur dioxide that is not issued under 
the Acid Rain Program, Sec. 97.288, or provisions of a State 
implementation plan that are approved under Sec. 51.124(o)(1) or (2) or 
(r) of this chapter shall not be a CAIR SO2 allowance.
    CAIR SO2 allowance deduction or deduct CAIR SO2 allowances means the 
permanent withdrawal of CAIR SO2 allowances by the 
Administrator from a compliance account, e.g., in order to account for a 
specified number of tons of total sulfur dioxide emissions from all CAIR 
SO2 units at a CAIR SO2

[[Page 948]]

source for a control period, determined in accordance with subpart HHH 
of this part, or to account for excess emissions.
    CAIR SO2 Allowance Tracking System means the system by which the 
Administrator records allocations, deductions, and transfers of CAIR 
SO2 allowances under the CAIR SO2 Trading Program. 
This is the same system as the Allowance Tracking System under Sec. 
72.2 of this chapter by which the Administrator records allocations, 
deduction, and transfers of Acid Rain SO2 allowances under 
the Acid Rain Program.
    CAIR SO2 Allowance Tracking System account means an account in the 
CAIR SO2 Allowance Tracking System established by the Administrator for 
purposes of recording the allocation, holding, transferring, or 
deducting of CAIR SO2 allowances. Such allowances will be 
allocated, held, deducted, or transferred only as whole allowances.
    CAIR SO2 allowances held or hold CAIR SO2 allowances means the CAIR 
SO2 allowances recorded by the Administrator, or submitted to 
the Administrator for recordation, in accordance with subparts FFF, GGG, 
and III of this part or part 73 of this chapter, in a CAIR 
SO2 Allowance Tracking System account.
    CAIR SO2 emissions limitation means, for a CAIR SO2 
source, the tonnage equivalent, in SO2 emissions in a control 
period, of the CAIR SO2 allowances available for deduction 
for the source under Sec. 97.254(a) and (b) for the control period.
    CAIR SO2 source means a source that includes one or more CAIR 
SO2 units.
    CAIR SO2 Trading Program means a multi-state sulfur dioxide air 
pollution control and emission reduction program established by the 
Administrator in accordance with subparts AAA through III of this part 
and Sec. Sec. 51.124(r) and 52.36 of this chapter or approved and 
administered by the Administrator in accordance with subparts AAA 
through III of part 96 of this chapter and Sec. 51.124(o) (1) or (2) of 
this chapter, as a means of mitigating interstate transport of fine 
particulates and sulfur dioxide.
    CAIR SO2 unit means a unit that is subject to the CAIR 
SO2 Trading Program under Sec. 97.204 and, except for 
purposes of Sec. 97.205, a CAIR SO2 opt-in unit under 
subpart 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 business function 
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 or 
the proprietor respectively; or
    (3) For a local government entity or State, Federal, or other public 
agency, a principal executive officer or ranking elected official.
    Clean Air Act or CAA means the Clean Air Act, 42 U.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, or chemical 
processing of coal.
    Coal-fired means combusting any amount of coal or coal-derived fuel, 
alone, or in combination with any amount of any other fuel.
    Cogeneration unit means a stationary, fossil-fuel-fired boiler or 
stationary, fossil-fuel-fired combustion turbine:
    (1) Having equipment used to produce electricity and useful thermal 
energy for industrial, commercial, heating, or cooling purposes through 
the sequential use of energy; and
    (2) Producing during the 12-month period starting on the date the 
unit first produces electricity and during any calendar year after the 
calendar 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 energy 
output; and
    (B) Useful power that, when added to one-half of useful thermal 
energy produced, is not less then 42.5 percent of total energy input, if 
useful thermal energy produced is 15 percent or more of total energy 
output, or not less than

[[Page 949]]

45 percent of total energy input, if useful thermal energy produced is 
less than 15 percent of total energy output.
    (ii) For a bottoming-cycle cogeneration unit, useful power not 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 energy input 
from all fuel except biomass if the unit is a boiler.
    Combustion turbine means:
    (1) An enclosed device comprising a compressor, a combustor, and a 
turbine and in which the flue gas resulting from the combustion of fuel 
in the combustor passes through the turbine, rotating the turbine; and
    (2) If the enclosed device under paragraph (1) of this definition is 
combined cycle, any associated duct burner, heat recovery steam 
generator, and steam turbine.
    Commence commercial operation means, with regard to a unit:
    (1) To have begun to produce steam, gas, or other heated medium used 
to generate electricity for sale or use, including test generation, 
except as provided in Sec. 97.205 and Sec. 97.284(h).
    (i) For a unit that is a CAIR SO2 unit under Sec. 97.204 
on the later of November 15, 1990 or the date the unit commences 
commercial operation as defined in paragraph (1) of this 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 commercial operation of the unit, which shall 
continue to be treated as the same unit.
    (ii) For a unit that is a CAIR SO2 unit under Sec. 
97.204 on the later of November 15, 1990 or the date the unit commences 
commercial operation as defined in paragraph (1) of this definition and 
that is subsequently replaced by a unit at the same source (e.g., 
repowered), such date shall remain the replaced unit's date of 
commencement of commercial operation, and the replacement unit shall be 
treated as a separate unit with a separate date 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 as 
provided in Sec. 97.205, for a unit that is not a CAIR SO2 
unit under Sec. 97.204 on the later of November 15, 1990 or the date 
the unit commences commercial operation as defined in paragraph (1) of 
this definition, the unit's date for commencement of commercial 
operation shall be the date on which the unit becomes a CAIR 
SO2 unit under Sec. 97.204.
    (i) For a unit with a date for commencement of commercial operation 
as defined in paragraph (2) of this 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 commercial operation of the unit, which shall continue 
to be treated as the same unit.
    (ii) For a unit with a date for commencement of commercial operation 
as defined in paragraph (2) of this definition and that is subsequently 
replaced by a unit at the same source (e.g., repowered), such date shall 
remain the replaced unit's date of commencement of commercial operation, 
and the replacement unit shall be treated as a separate unit with a 
separate date for commencement 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 combustion 
chamber, except as provided in Sec. 97.284(h).
    (2) For a unit that undergoes a physical change (other than 
replacement of the unit by a unit at the same source) after the date the 
unit commences operation as defined in paragraph (1) of this definition, 
such date shall remain the date of commencement of operation of the 
unit, which shall continue to be treated as the same unit.
    (3) For a unit that is replaced by a unit at the same source (e.g., 
repowered) after the date the unit commences operation as defined in 
paragraph (1) of this definition, such date shall remain the replaced 
unit's date of commencement of operation, and the replacement unit shall 
be treated as a separate unit with a separate date for commencement of 
operation as defined

[[Page 950]]

in paragraph (1), (2), or (3) of this definition as appropriate, except 
as provided in Sec. 97.284(h).
    Common stack means a single flue through which emissions from 2 or 
more units are exhausted.
    Compliance account means a CAIR SO2 Allowance Tracking 
System account, established by the Administrator for a CAIR 
SO2 source subject to an Acid Rain emissions limitations 
under Sec. 73.31(a) or (b) of this chapter or for any other CAIR 
SO2 source under subpart FFF or III of this part, in which 
any CAIR SO2 allowance allocations for the CAIR 
SO2 units at the source are initially recorded and in which 
are held any CAIR SO2 allowances available for use for a 
control period in order to meet the source's CAIR SO2 
emissions limitation in accordance with Sec. 97.254.
    Continuous emission monitoring system or CEMS means the equipment 
required under subpart HHH of this part to sample, analyze, measure, and 
provide, by means of readings recorded at least once every 15 minutes 
(using an automated data acquisition and handling system (DAHS)), a 
permanent record of sulfur dioxide emissions, stack gas volumetric flow 
rate, stack gas moisture content, and oxygen or carbon dioxide 
concentration (as applicable), in a manner consistent with part 75 of 
this chapter. The following systems are the principal types of 
continuous emission monitoring systems required under subpart HHH of 
this part:
    (1) A flow monitoring system, consisting of a stack flow rate 
monitor and an automated data acquisition and handling system and 
providing a permanent, continuous record of stack gas volumetric flow 
rate, in standard cubic feet per hour (scfh);
    (2) A sulfur dioxide monitoring system, consisting of a 
SO2 pollutant concentration monitor and an automated data 
acquisition and handling system and providing a permanent, continuous 
record of SO2 emissions, in parts per million (ppm);
    (3) A moisture monitoring system, as defined in Sec. 75.11(b)(2) of 
this chapter and providing a permanent, continuous record of the stack 
gas moisture content, in percent H2O;
    (4) A carbon dioxide monitoring system, consisting of a 
CO2 pollutant concentration monitor (or an oxygen monitor 
plus suitable mathematical equations from which the CO2 
concentration is derived) and an automated data acquisition and handling 
system and providing a permanent, continuous record of CO2 
emissions, in percent CO2; and
    (5) An oxygen monitoring system, consisting of an O2 
concentration monitor and an automated data acquisition and handling 
system and providing a permanent, continuous record of O2 in 
percent O2.
    Control period means the period beginning January 1 of a calendar 
year, except as provided in Sec. 97.206(c)(2), and ending on December 
31 of the same year, inclusive.
    Emissions means air pollutants exhausted from a unit or source into 
the atmosphere, as measured, recorded, and reported to the Administrator 
by the CAIR designated representative and as determined by the 
Administrator in accordance with subpart HHH of this part.
    Excess emissions means any ton, or portion of a ton, of sulfur 
dioxide emitted by the CAIR SO2 units at a CAIR 
SO2 source during a control period that exceeds the CAIR 
SO2 emissions limitation for the source, provided that any 
portion of a ton of excess emissions shall be treated as one ton of 
excess emissions.
    Fossil fuel means natural gas, petroleum, coal, or any form of 
solid, liquid, or gaseous fuel derived from such material.
    Fossil-fuel-fired means, with regard to a unit, combusting any 
amount of fossil fuel in any calendar year.
    General account means a CAIR SO2 Allowance Tracking 
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 fuel feed 
rate into a combustion device (in lb of fuel/time), as measured,

[[Page 951]]

recorded, and reported to the Administrator by the CAIR designated 
representative and determined by the Administrator in accordance with 
subpart HHH of this part and excluding 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 specific fuel, the 
amount of heat input attributed to the fuel (in mmBtu) divided by the 
unit operating time (in hr) during which the unit combusts the fuel.
    Hg Budget Trading Program means a multi-state Hg air pollution 
control and emission reduction program approved and administered by the 
Administrator in accordance subpart HHHH of part 60 of this chapter and 
Sec. 60.24(h)(6), or established by the Administrator under section 111 
of the Clean Air Act, as a means of reducing national Hg emissions.
    Life-of-the-unit, firm power contractual arrangement means a unit 
participation power sales agreement under which a utility or industrial 
customer reserves, or is entitled to receive, a specified amount or 
percentage of nameplate capacity and associated energy generated by any 
specified unit and pays its proportional amount of such 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, including 
contracts that permit an election for early termination; or
    (3) For a period no less than 25 years or 70 percent of the economic 
useful life of the unit determined as of the time the unit is built, 
with option rights to purchase or release some portion of the nameplate 
capacity and associated energy generated by the unit at the end of the 
period.
    Maximum design heat input means the maximum amount of fuel per hour 
(in Btu/hr) that a unit is capable of combusting on a steady state basis 
as of the initial installation of the unit as specified by the 
manufacturer of the unit.
    Monitoring system means any monitoring system that meets the 
requirements of subpart HHH of this part, including a continuous 
emissions monitoring system, an alternative monitoring system, or an 
excepted monitoring system under part 75 of this chapter.
    Most stringent State or Federal SO2 emissions limitation means, with 
regard to a unit, the lowest SO2 emissions limitation (in 
terms of lb/mmBtu) that is applicable to the unit under State or Federal 
law, regardless of the averaging period to which the emissions 
limitation applies.
    Nameplate capacity means, starting from the initial installation of 
a generator, the maximum electrical generating output (in MWe) that the 
generator is capable of producing on a steady state basis and during 
continuous operation (when not restricted by seasonal or other 
deratings) as of such installation as specified by the manufacturer of 
the generator or, starting from the completion of any subsequent 
physical change in the generator resulting in an increase in the maximum 
electrical generating output (in MWe) that the generator is capable of 
producing on a steady state basis and during continuous operation (when 
not restricted by seasonal or other deratings), such increased maximum 
amount as of such completion as specified by the person conducting the 
physical change.
    Operator means any person who operates, controls, or supervises a 
CAIR SO2 unit or a CAIR SO2 source 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 CAIR 
SO2 unit at a source, respectively:
    (i) Any holder of any portion of the legal or equitable title in a 
CAIR SO2 unit at the source or the CAIR SO2 unit;
    (ii) Any holder of a leasehold interest in a CAIR SO2 
unit at the source or the CAIR SO2 unit; or
    (iii) Any purchaser of power from a CAIR SO2 unit at the 
source or the CAIR SO2 unit under a life-of-the-unit, firm 
power contractual arrangement;

[[Page 952]]

provided that, unless expressly provided for in a leasehold agreement, 
owner shall not include a passive lessor, or a person who has an 
equitable interest through such lessor, whose rental payments are not 
based (either directly or indirectly) on the revenues or income from 
such CAIR SO2 unit; or
    (2) With regard to any general account, any person who has an 
ownership interest with respect to the CAIR SO2 allowances 
held in the general account and who is subject to the binding agreement 
for the CAIR authorized account representative to represent the person's 
ownership interest with respect to CAIR SO2 allowances.
    Permitting authority means the State air pollution control agency, 
local agency, other State agency, or other agency authorized by the 
Administrator to issue or revise permits to meet the requirements of the 
CAIR SO2 Trading Program or, if no such agency has been so 
authorized, the Administrator.
    Potential electrical output capacity means 33 percent of a unit's 
maximum design heat input, divided by 3,413 Btu/kWh, divided by 1,000 
kWh/MWh, and multiplied by 8,760 hr/yr.
    Receive or receipt of means, when referring to the permitting 
authority or the Administrator, to come into possession of a document, 
information, or correspondence (whether sent in hard copy or by 
authorized electronic transmission), as indicated in an official log, or 
by a notation made on the document, information, or correspondence, by 
the permitting authority or the Administrator in the regular course of 
business.
    Recordation, record, or recorded means, with regard to CAIR 
SO2 allowances, the movement of CAIR SO2 
allowances by the Administrator into or between CAIR SO2 
Allowance Tracking System accounts, for purposes of allocation, 
transfer, or deduction.
    Reference method means any direct test method of sampling and 
analyzing for an air pollutant as specified in Sec. 75.22 of this 
chapter.
    Replacement, replace, or replaced means, with regard to a unit, the 
demolishing of a unit, or the permanent shutdown and permanent disabling 
of a unit, and the construction of another unit (the replacement unit) 
to be used instead of the demolished or shutdown unit (the replaced 
unit).
    Repowered means, with regard to a unit, replacement of a coal-fired 
boiler with one of the following coal-fired technologies at the 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 the 
Secretary of Energy, a derivative of one or more of the technologies 
under paragraphs (1) through (5) of this definition and any other coal-
fired technology capable of controlling multiple combustion emissions 
simultaneously with improved boiler or generation efficiency and with 
significantly greater waste reduction relative to the performance of 
technology in widespread commercial use as of January 1, 2005.
    Sequential use of energy means:
    (1) For a topping-cycle cogeneration unit, the use of reject heat 
from electricity production in a useful thermal energy application or 
process; or
    (2) For a bottoming-cycle cogeneration unit, the use of reject heat 
from useful thermal energy application or process in electricity 
production.
    Serial number means, for a CAIR SO2 allowance, the unique 
identification number assigned to each CAIR SO2 allowance by 
the Administrator.
    Solid waste incineration unit means a stationary, fossil-fuel-fired 
boiler or stationary, fossil-fuel-fired combustion turbine that is a 
``solid waste incineration unit'' as defined in section 129(g)(1) of the 
Clean Air Act.
    Source means all buildings, structures, or installations located in 
one or more contiguous or adjacent properties under common control 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 a single ``facility.''

[[Page 953]]

    State means one of the States or the District of Columbia that is 
subject to the CAIR SO2 Trading Program 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 accordance with 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 of dispatch, transmission, or mailing and not the 
date of receipt.
    Title V operating permit means a permit issued under title V of the 
Clean Air Act and part 70 or part 71 of this chapter.
    Title V operating permit regulations means the regulations that the 
Administrator has approved or issued as meeting the requirements of 
title V of the Clean Air Act and part 70 or 71 of this chapter.
    Ton means 2,000 pounds. For the purpose of determining compliance 
with the CAIR SO2 emissions limitation, total tons of sulfur 
dioxide emissions for a control period shall be calculated as the sum of 
all recorded hourly emissions (or the mass equivalent of the recorded 
hourly emission rates) in accordance with subpart HHH of this part, but 
with any remaining fraction of a ton equal to or greater than 0.50 tons 
deemed to equal one ton and any remaining fraction of a ton less than 
0.50 tons deemed to equal zero tons.
    Topping-cycle cogeneration unit means a cogeneration unit in which 
the energy input to the unit is first used to produce useful power, 
including electricity, and at least some of the reject heat from the 
electricity production is then used to provide useful thermal energy.
    Total energy input means, with regard to a cogeneration unit, total 
energy of all forms supplied to the cogeneration unit, excluding energy 
produced by the cogeneration unit itself. Each form of energy supplied 
shall be measured by the lower heating value of that 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 cogeneration unit, the 
sum of useful power and useful thermal energy produced by the 
cogeneration unit.
    Unit means a stationary, fossil-fuel-fired boiler or combustion 
turbine or other stationary, fossil-fuel-fired combustion device. Unit 
operating day means a calendar day in which a unit combusts any fuel.
    Unit operating hour or hour of unit operation means an hour 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 any such energy 
used in the power production process (which process includes, but is not 
limited to, any on-site processing or treatment of fuel combusted at the 
unit and any on-site emission controls).
    Useful thermal energy means, with regard to a cogeneration unit, 
thermal energy that is:
    (1) Made available to an industrial or commercial process (not a 
power production process), excluding any heat contained in condensate 
return or makeup water;
    (2) Used in a heating application (e.g., space heating or domestic 
hot water heating); or
    (3) Used in a space cooling application (i.e., thermal energy used 
by an absorption chiller).
    Utility power distribution system means the portion of an 
electricity grid owned or operated by a utility and dedicated to 
delivering 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 and 
subparts BBB through III are defined as follows:

Btu--British thermal unit.
CO2--carbon dioxide.
H2O--water.
Hg--mercury.
hr--hour.

[[Page 954]]

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 SO2 
units, and any source that includes one or more such units shall be a 
CAIR SO2 source, subject to the requirements of this subpart 
and subparts BBB through HHH of this part: any stationary, fossil-fuel-
fired boiler or stationary, fossil-fuel-fired combustion turbine serving 
at any time, since the later of November 15, 1990 or the start-up of the 
unit's combustion chamber, a generator with nameplate 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 SO2 
unit begins to combust fossil fuel or to serve a generator with 
nameplate capacity of more than 25 MWe producing electricity for sale, 
the unit shall become a CAIR SO2 unit as provided in 
paragraph (a)(1) of this section on the first date on which it both 
combusts fossil fuel and serves such generator.
    (b) The units in a State that meet the requirements set forth in 
paragraph (b)(1)(i), (b)(2)(i), or (b)(2)(ii) of this section shall not 
be CAIR SO2 units:
    (1)(i) Any unit that is a CAIR SO2 unit under paragraph 
(a)(1) or (2) of this section:
    (A) Qualifying as a cogeneration unit during the 12-month period 
starting on the date the unit first produces electricity and continuing 
to qualify as a cogeneration unit; and
    (B) Not serving at any time, since the later of November 15, 1990 or 
the start-up of the unit's combustion chamber, a generator with 
nameplate capacity of more than 25 MWe supplying in any calendar year 
more than one-third of the unit's potential electric output capacity or 
219,000 MWh, whichever is greater, to any utility power distribution 
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 electricity and 
meets the requirements of paragraphs (b)(1)(i) of this section for at 
least one calendar year, but subsequently no longer meets all such 
requirements, the unit shall become a CAIR SO2 unit starting 
on the earlier of January 1 after the first calendar year during which 
the unit first no longer qualifies as a cogeneration unit or January 1 
after the first calendar year during which the unit no longer meets the 
requirements of paragraph (b)(1)(i)(B) of this section.
    (2)(i) Any unit that is a CAIR SO2 unit under paragraph 
(a)(1) or (2) of this section commencing operation before January 1, 
1985:
    (A) Qualifying as a solid waste incineration unit; and
    (B) With an average annual fuel consumption of non-fossil fuel for 
1985-1987 exceeding 80 percent (on a Btu basis) and an average annual 
fuel consumption of non-fossil fuel for any 3 consecutive calendar 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 January 
1, 1985:
    (A) Qualifying as a solid waste incineration unit; and
    (B) With an average annual fuel consumption of non-fossil fuel for 
the first 3 calendar years of operation exceeding 80 percent (on a Btu 
basis) and an average annual fuel consumption of non-fossil fuel for any 
3 consecutive calendar years after 1990 exceeding 80 percent (on a Btu 
basis).
    (iii) If a unit qualifies as a solid waste incineration unit and 
meets the requirements of paragraph (b)(2)(i) or (ii) of this section 
for at least 3 consecutive calendar years, but subsequently no longer 
meets all such requirements, the unit shall become a CAIR SO2 
unit starting on the earlier of January 1 after the first calendar year 
during which the unit first no

[[Page 955]]

longer qualifies as a solid waste incineration unit or January 1 after 
the first 3 consecutive calendar years after 1990 for which the unit has 
an average annual fuel consumption of fossil fuel of 20 percent or more.
    (c) A certifying official of an owner or operator of any unit may 
petition the Administrator at any time for a determination concerning 
the applicability, under paragraphs (a) and (b) of this section, of the 
CAIR SO2 Trading Program to the unit.
    (1) Petition content. The petition shall be in writing and include 
the identification of the unit and the relevant facts about the unit. 
The petition and any other documents provided to the Administrator in 
connection with the petition shall include the following certification 
statement, signed by the certifying official: ``I am authorized to make 
this submission on behalf of the owners and operators of the unit for 
which the submission is made. I certify under penalty of law that I have 
personally examined, and am familiar with, the statements and 
information submitted in this document and all its attachments. Based on 
my inquiry of those individuals with primary responsibility for 
obtaining the information, I certify that the statements and information 
are to the best of my knowledge and belief true, accurate, and complete. 
I am aware that there are significant penalties for submitting false 
statements and information or omitting required statements and 
information, including the possibility of fine or imprisonment.''
    (2) Submission. The petition and any other documents provided in 
connection with the petition shall be submitted to the Director of the 
Clean Air Markets Division (or its successor), U.S. Environmental 
Protection Agency, who will act on the petition as the Administrator's 
duly authorized representative.
    (3) Response. The Administrator will issue a written response to the 
petition and may request supplemental information relevant to such 
petition. The Administrator's determination concerning the 
applicability, under paragraphs (a) and (b) of this section, of the CAIR 
SO2 Trading Program to the unit shall be binding on the 
permitting authority unless the petition or other information or 
documents provided in connection with the petition are found to have 
contained significant, relevant errors or omissions.



Sec. 97.205  Retired unit exemption.

    (a)(1) Any CAIR SO2 unit that is permanently retired and 
is not a CAIR SO2 opt-in unit under subpart III of this part 
shall be exempt from the CAIR SO2 Trading Program, 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 shall 
become effective the day on which the CAIR SO2 unit is 
permanently retired. Within 30 days of the unit's permanent retirement, 
the CAIR designated representative shall submit a statement to the 
permitting authority otherwise responsible for administering any CAIR 
permit for the unit and shall submit a copy of the statement to the 
Administrator. The statement shall state, in a format prescribed by the 
permitting authority, that the unit was permanently retired on a 
specific date and will comply with the requirements of paragraph (b) of 
this section.
    (3) After receipt of the statement under paragraph (a)(2) of this 
section, the permitting authority will amend any permit under subpart 
CCC of this part covering the source at which the unit is located to add 
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 the date 
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 this 
section shall retain, at the source that includes the unit, records 
demonstrating that the unit is permanently retired. The 5-year period 
for keeping records may be extended for cause, at any time before the 
end of the period, in writing by the permitting authority or the 
Administrator. The owners and operators

[[Page 956]]

bear the burden of proof that the unit is permanently retired.
    (3) The owners and operators and, to the extent applicable, the CAIR 
designated representative of a unit exempt under paragraph (a) of this 
section shall comply with the requirements of the CAIR SO2 
Trading Program concerning all periods for which the exemption is not in 
effect, even if such requirements arise, or must be complied with, after 
the exemption takes effect.
    (4) A unit exempt under paragraph (a) of this section and located at 
a source that is required, or but for this exemption would be required, 
to have a title V operating permit shall not resume operation unless the 
CAIR designated representative of the source submits a complete CAIR 
permit application under Sec. 97.222 for the unit not less than 18 
months (or such lesser time provided by the permitting authority) before 
the later of January 1, 2010 or the date on which the unit resumes 
operation.
    (5) On the earlier of the following dates, a unit exempt under 
paragraph (a) of this section shall lose its exemption:
    (i) The date on which the CAIR designated representative submits a 
CAIR permit application for the unit under paragraph (b)(4) of this 
section;
    (ii) The date on which the CAIR designated representative is 
required under paragraph (b)(4) of this section to submit a CAIR permit 
application for the unit; or
    (iii) The date on which the unit resumes operation, if the CAIR 
designated representative is not required to submit a CAIR permit 
application for the unit.
    (6) For the purpose of applying monitoring, reporting, and 
recordkeeping requirements under subpart HHH of this part, a unit that 
loses its exemption under paragraph (a) of this section shall be treated 
as a unit that commences commercial operation on the first date on which 
the unit resumes operation.



Sec. 97.206  Standard requirements.

    (a) Permit requirements. (1) The CAIR designated representative of 
each CAIR SO2 source required to have a title V operating 
permit and each CAIR SO2 unit required to have a title V 
operating permit at the source shall:
    (i) Submit to the permitting authority a complete CAIR permit 
application under Sec. 97.222 in accordance with the deadlines 
specified in Sec. 97.221; and
    (ii) Submit in a timely manner any supplemental information that the 
permitting authority determines is necessary in order to review a CAIR 
permit application and issue or deny a CAIR permit.
    (2) The owners and operators of each CAIR SO2 source 
required to have a title V operating permit and each CAIR SO2 
unit required to have a title V operating permit at the source shall 
have a CAIR permit issued by the permitting authority under subpart CCC 
of this part for the source and operate the source and the unit in 
compliance with such CAIR permit.
    (3) Except as provided in subpart III of this part, the owners and 
operators of a CAIR SO2 source that is not otherwise required 
to have a title V operating permit and each CAIR SO2 unit 
that is not otherwise required to have a title V operating permit are 
not required to submit a CAIR permit application, and to have a CAIR 
permit, under subpart CCC of this part for such CAIR 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 unit at the 
source shall comply with the monitoring, reporting, and recordkeeping 
requirements of subpart HHH of this part.
    (2) The emissions measurements recorded and reported in accordance 
with subpart HHH of this part shall be used to determine compliance by 
each CAIR SO2 source with the CAIR SO2 emissions 
limitation under paragraph (c) of this section.
    (c) Sulfur dioxide emission requirements. (1) As of the allowance 
transfer deadline for a control period, the owners and operators of each 
CAIR SO2 source and each CAIR SO2 unit at the 
source shall hold, in the source's compliance account, a tonnage 
equivalent in CAIR SO2 allowances available for compliance 
deductions for the control

[[Page 957]]

period, as determined in accordance with Sec. 97.254(a) and (b), not 
less than the tons of total sulfur dioxide emissions for the control 
period from all CAIR SO2 units at the source, as determined 
in accordance with subpart HHH of this part.
    (2) A CAIR SO2 unit shall be subject to the requirements 
under paragraph (c)(1) of this section for the control period starting 
on the later of January 1, 2010 or the deadline for meeting the unit(s 
monitor certification requirements under Sec. 97.270(b)(1),(2), or (5) 
and for each control period thereafter.
    (3) A CAIR SO2 allowance shall not be deducted, for 
compliance with the requirements under paragraph (c)(1) of this section, 
for a control period in a calendar year before the year for which the 
CAIR SO2 allowance was allocated.
    (4) CAIR SO2 allowances shall be held in, deducted from, 
or transferred into or among CAIR SO2 Allowance Tracking 
System accounts in accordance with subparts FFF, GGG, and III of this 
part.
    (5) A CAIR SO2 allowance is a limited authorization to 
emit sulfur dioxide in accordance with the CAIR SO2 Trading 
Program. No provision of the CAIR SO2 Trading Program, the 
CAIR permit application, the CAIR permit, or an exemption under Sec. 
97.205 and no provision of law shall be construed to limit the authority 
of the United States to terminate or limit such authorization.
    (6) A CAIR SO2 allowance does not constitute a property 
right.
    (7) Upon recordation by the Administrator under subpart FFF, GGG, or 
III of this part, every allocation, transfer, or deduction of a CAIR 
SO2 allowance to or from a CAIR SO2 source's 
compliance account is incorporated automatically in any CAIR permit of 
the source.
    (d) Excess emissions requirements. If a CAIR SO2 source 
emits sulfur dioxide during any control period in excess of the CAIR 
SO2 emissions limitation, then:
    (1) The owners and operators of the source and each CAIR 
SO2 unit at the source shall surrender the CAIR 
SO2 allowances required for deduction under Sec. 
97.254(d)(1) and pay any fine, penalty, or assessment or 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 control 
period shall constitute a separate violation of this subpart, the Clean 
Air Act, and applicable State law.
    (e) Recordkeeping and reporting requirements. (1) Unless otherwise 
provided, the owners and operators of the CAIR SO2 source and 
each CAIR SO2 unit at the source shall keep on site at the 
source each of the following documents for a period of 5 years from the 
date the document is created. This period may be extended for cause, at 
any time before the end of 5 years, in writing by the permitting 
authority or the Administrator.
    (i) The certificate of representation under Sec. 97.213 for the 
CAIR designated representative for the source and each CAIR 
SO2 unit at the source and all documents that demonstrate the 
truth of the statements in the certificate of representation; provided 
that the certificate and documents shall be retained on site at the 
source beyond such 5-year period until such documents are superseded 
because of the submission of a new certificate of representation under 
Sec. 97.213 changing the CAIR designated representative.
    (ii) All emissions monitoring information, in accordance with 
subpart HHH of this part, provided that to the extent that subpart HHH 
of this part provides for a 3-year period for recordkeeping, the 3-year 
period shall apply.
    (iii) Copies of all reports, compliance certifications, and other 
submissions and all records made or required under the CAIR 
SO2 Trading Program.
    (iv) Copies of all documents used to complete a CAIR permit 
application and any other submission under the CAIR SO2 
Trading Program or to demonstrate compliance with the requirements of 
the CAIR SO2 Trading Program.
    (2) The CAIR designated representative of a CAIR SO2 
source and each CAIR SO2 unit at the source shall submit the 
reports required under the CAIR SO2 Trading Program, 
including those under subpart HHH of this part.
    (f) Liability. (1) Each CAIR SO2 source and each CAIR 
SO2 unit shall meet the

[[Page 958]]

requirements of the CAIR SO2 Trading Program.
    (2) Any provision of the CAIR SO2 Trading Program that 
applies to a CAIR SO2 source or the CAIR designated 
representative of a CAIR SO2 source shall also apply to the 
owners and operators of such source and of the CAIR SO2 units 
at the source.
    (3) Any provision of the CAIR SO2 Trading Program that 
applies to a CAIR SO2 unit or the CAIR designated 
representative of a CAIR SO2 unit shall also apply to the 
owners and operators of such unit.
    (g) Effect on other authorities. No provision of the CAIR 
SO2 Trading Program, a CAIR permit application, a CAIR 
permit, or an exemption under Sec. 97.205 shall be construed as 
exempting or excluding the owners and operators, and the CAIR designated 
representative, of a CAIR SO2 source or CAIR SO2 
unit from compliance with any other provision of the applicable, 
approved State implementation plan, a federally enforceable permit, or 
the Clean Air Act.



Sec. 97.207  Computation of time.

    (a) Unless otherwise stated, any time period scheduled, under the 
CAIR SO2 Trading Program, to begin on the occurrence of an 
act or event shall begin on the day the act or event occurs.
    (b) Unless otherwise stated, any time period scheduled, under the 
CAIR SO2 Trading Program, to begin before the occurrence of 
an act or event shall be computed so that the period ends the day before 
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 or a 
State or Federal holiday, the time period shall be extended to the next 
business day.



Sec. 97.208  Appeal procedures.

    The appeal procedures for decisions of the Administrator under the 
CAIR SO2 Trading Program are set forth in part 78 of this 
chapter.



  Subpart BBB_CAIR Designated Representative for CAIR SO[bdi2] Sources



Sec. 97.210  Authorization and responsibilities of CAIR designated 

representative.

    (a) Except as provided under Sec. 97.211, each CAIR SO2 
source, including all CAIR SO2 units at the source, shall 
have one and only one CAIR designated representative, with regard to all 
matters under the CAIR SO2 Trading Program concerning the 
source or any CAIR SO2 unit at the source.
    (b) The CAIR designated representative of the CAIR SO2 
source shall be selected by an agreement binding on the owners and 
operators of the source and all CAIR SO2 units at the source 
and shall act in accordance with the certification statement in Sec. 
97.213(a)(4)(iv).
    (c) Upon receipt by the Administrator of a complete certificate of 
representation under Sec. 97.213, the CAIR designated representative of 
the source shall represent and, by his or her representations, actions, 
inactions, or submissions, legally bind each owner and operator of the 
CAIR SO2 source represented and each CAIR SO2 unit 
at the source in all matters pertaining to the CAIR SO2 
Trading Program, notwithstanding any agreement between the CAIR 
designated representative and such owners and operators. The owners and 
operators shall be bound by any decision or order issued to the CAIR 
designated representative by the permitting authority, the 
Administrator, or a court regarding the source or unit.
    (d) No CAIR permit will be issued, no emissions data reports will be 
accepted, and no CAIR SO2 Allowance Tracking System account 
will be established for a CAIR SO2 unit at a source, until 
the Administrator has received a complete certificate of representation 
under Sec. 97.213 for a CAIR designated representative of the source 
and the CAIR SO2 units at the source.
    (e)(1) Each submission under the CAIR SO2 Trading Program 
shall be submitted, signed, and certified by the CAIR designated 
representative for each CAIR SO2 source on behalf of which 
the submission is made. Each such submission shall include the following 
certification statement by the

[[Page 959]]

CAIR designated representative: ``I am authorized to make this 
submission on behalf of the owners and operators of the source or units 
for which the submission is made. I certify under penalty of law that I 
have personally examined, and am familiar with, the statements and 
information submitted in this document and all its attachments. Based on 
my inquiry of those individuals with primary responsibility for 
obtaining the information, I certify that the statements and information 
are to the best of my knowledge and belief true, accurate, and complete. 
I am aware that there are significant penalties for submitting false 
statements and information or omitting required statements and 
information, including the possibility of fine or imprisonment.''
    (2) The permitting authority and the Administrator will accept or 
act on a submission made on behalf of owner or operators of a CAIR 
SO2 source or a CAIR SO2 unit only if the 
submission has been made, signed, and certified in accordance with 
paragraph (e)(1) of this section.



Sec. 97.211  Alternate CAIR designated representative.

    (a) A certificate of representation under Sec. 97.213 may designate 
one and only one alternate CAIR designated representative, who may act 
on behalf of the CAIR designated representative. The agreement by which 
the alternate CAIR designated representative is selected shall include a 
procedure for authorizing the alternate CAIR designated representative 
to act in lieu of the CAIR designated representative.
    (b) Upon receipt by the Administrator of a complete certificate of 
representation under Sec. 97.213, any representation, action, inaction, 
or submission by the alternate CAIR designated representative 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, whenever the term ``CAIR 
designated representative'' is used in subparts AAA through III of this 
part, the term shall be construed to include the CAIR designated 
representative or any alternate CAIR designated representative.



Sec. 97.212  Changing CAIR designated representative and alternate CAIR 

designated representative; changes in owners and operators.

    (a) Changing CAIR designated representative. The CAIR designated 
representative may be changed at any time upon receipt by the 
Administrator of a superseding complete certificate of representation 
under Sec. 97.213. Notwithstanding any such change, all 
representations, actions, inactions, and submissions by the previous 
CAIR designated representative before the time and date when the 
Administrator receives the superseding certificate of representation 
shall be binding on the new CAIR designated representative and the 
owners and operators of the CAIR SO2 source and the CAIR 
SO2 units at the source.
    (b) Changing alternate CAIR designated representative. The alternate 
CAIR designated representative may be changed at any time upon receipt 
by the Administrator of a superseding complete certificate of 
representation under Sec. 97.213. Notwithstanding any such change, all 
representations, actions, inactions, and submissions by the previous 
alternate CAIR designated representative before the time and date when 
the Administrator receives the superseding certificate of representation 
shall be binding on the new alternate CAIR designated representative and 
the owners and operators of the CAIR SO2 source and the CAIR 
SO2 units at the source.
    (c) Changes in owners and operators. (1) In the event an owner or 
operator of a CAIR SO2 source or a CAIR SO2 unit 
is not included in the list of owners and operators in the certificate 
of representation under Sec. 97.213, such owner or operator shall be 
deemed to be subject to and bound by the certificate of representation, 
the representations, actions, inactions, and submissions of the CAIR 
designated representative and any alternate CAIR designated 
representative of the source or unit, and the decisions and orders of 
the permitting authority, the Administrator, or a court, as if the owner 
or operator were included in such list.

[[Page 960]]

    (2) Within 30 days following any change in the owners and operators 
of a CAIR SO2 source or a CAIR SO2 unit, including 
the addition of a new owner or operator, the CAIR designated 
representative or any alternate CAIR designated representative shall 
submit a revision to the certificate of representation under Sec. 
97.213 amending the list of owners and operators to include the change.



Sec. 97.213  Certificate of representation.

    (a) A complete certificate of representation for a CAIR designated 
representative or an alternate CAIR designated representative shall 
include the following elements in a format prescribed by the 
Administrator:
    (1) Identification of the CAIR SO2 source, and each CAIR 
SO2 unit at the source, for which the certificate of 
representation is submitted, including identification and nameplate 
capacity 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 designated 
representative and any alternate CAIR designated representative.
    (3) A list of the owners and operators of the CAIR SO2 
source and of each CAIR SO2 unit at the source.
    (4) The following certification statements by the CAIR designated 
representative and any alternate CAIR designated representative--
    (i) ``I certify that I was selected as the CAIR designated 
representative or alternate CAIR designated representative, as 
applicable, by an agreement binding on the owners and operators of the 
source and each CAIR SO2 unit at the source.''
    (ii) ``I certify that I have all the necessary authority to carry 
out my duties and responsibilities under the CAIR SO2 Trading 
Program on behalf of the owners and operators of the source and of each 
CAIR SO2 unit at the source and that each such owner and 
operator shall be fully bound by my representations, actions, inactions, 
or submissions.''
    (iii) ``I certify that the owners and operators of the source and of 
each CAIR SO2 unit at the source shall be bound by any order 
issued to me by the Administrator, the permitting authority, or a court 
regarding the source or unit.''
    (iv) ``Where there are multiple holders of a legal or equitable 
title to, or a leasehold interest in, a CAIR SO2 unit, or 
where a utility or industrial customer purchases power from a CAIR 
SO2 unit under a life-of-the-unit, firm power contractual 
arrangement, I certify that: I have given a written notice of my 
selection as the `CAIR designated representative' or `alternate CAIR 
designated representative', as applicable, and of the agreement by which 
I was selected to each owner and operator of the source and of each CAIR 
SO2 unit at the source; and CAIR SO2 allowances 
and proceeds of transactions involving CAIR SO2 allowances 
will be deemed 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 a 
different distribution of CAIR SO2 allowances by contract, 
CAIR SO2 allowances and proceeds of transactions involving 
CAIR SO2 allowances will be deemed to be held or distributed 
in accordance with the contract.''
    (5) The signature of the CAIR designated representative and any 
alternate CAIR designated representative and the dates signed.
    (b) Unless otherwise required by the permitting authority or the 
Administrator, documents of agreement referred to in the certificate of 
representation shall not be submitted to the permitting authority or the 
Administrator. Neither the permitting authority nor the Administrator 
shall be under any obligation to review or evaluate the sufficiency of 
such documents, if submitted.



Sec. 97.214  Objections concerning CAIR designated representative.

    (a) Once a complete certificate of representation under Sec. 97.213 
has been submitted and received, the permitting authority and the 
Administrator will rely on the certificate of representation unless and 
until a superseding complete certificate of representation

[[Page 961]]

under Sec. 97.213 is received by the Administrator.
    (b) Except as provided in Sec. 97.212(a) or (b), no objection or 
other communication submitted to the permitting authority or the 
Administrator concerning the authorization, or any representation, 
action, inaction, or submission, of the CAIR designated representative 
shall affect any representation, action, inaction, or submission of the 
CAIR designated representative or the finality of any decision or order 
by the permitting authority or the Administrator under the CAIR 
SO2 Trading Program.
    (c) Neither the permitting authority nor the Administrator will 
adjudicate any private legal dispute concerning the authorization or any 
representation, action, inaction, or submission of any CAIR designated 
representative, including private legal disputes concerning the proceeds 
of CAIR SO2 allowance transfers.



Sec. 97.215  Delegation by CAIR designated representative and alternate CAIR 

designated representative.

    (a) A CAIR designated representative may delegate, to one or more 
natural persons, his or her authority to make an electronic submission 
to the Administrator provided for or required under this part.
    (b) An alternate CAIR designated representative may delegate, to one 
or more natural persons, his or her authority to make an electronic 
submission to the Administrator provided for or required under this 
part.
    (c) In order to delegate authority to make an electronic submission 
to the Administrator in accordance with paragraph (a) or (b) of this 
section, the CAIR designated representative or alternate CAIR designated 
representative, as appropriate, must submit to the Administrator a 
notice of delegation, in a format prescribed by the Administrator, that 
includes the following elements:
    (1) The name, address, e-mail address, telephone number, and 
facsimile transmission number (if any) of such CAIR designated 
representative or alternate CAIR designated representative;
    (2) The name, address, e-mail address, telephone number, and 
facsimile 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 of 
electronic submissions under paragraph (a) or (b) of this section for 
which authority is delegated to him or her; and
    (4) The following certification statements by such CAIR designated 
representative or alternate CAIR designated representative:
    (i) ``I agree that any electronic submission to the Administrator 
that is by an agent identified in this notice of delegation and of a 
type listed for such agent in this notice of delegation and that is made 
when I am a CAIR designated representative or alternate CAIR designated 
representative, as appropriate, and before this notice of delegation is 
superseded by another notice of delegation under 40 CFR 97.215(d) shall 
be deemed to be an electronic submission by me.''
    (ii) ``Until this notice of delegation is superseded by another 
notice of delegation under 40 CFR 97.215(d), I agree to maintain an e-
mail account and to notify the Administrator immediately of any change 
in my e-mail address unless all delegation of authority by me under 40 
CFR 97.215 is terminated.''.
    (d) A notice of delegation submitted under paragraph (c) of this 
section shall be effective, with regard to the CAIR designated 
representative or alternate CAIR designated representative identified in 
such notice, upon receipt of such notice by the Administrator and until 
receipt by the Administrator of a superseding notice of delegation 
submitted by such CAIR designated representative or alternate CAIR 
designated representative, as appropriate. The superseding notice of 
delegation may replace any previously identified agent, add a new agent, 
or eliminate entirely any delegation of authority.
    (e) Any electronic submission covered by the certification in 
paragraph

[[Page 962]]

(c)(4)(i) of this section and made in accordance with a notice of 
delegation effective under paragraph (d) of this section shall be deemed 
to be an electronic submission by the CAIR designated representative or 
alternate CAIR designated representative submitting such 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 title V 
operating permit or required, under subpart III of this part, to have a 
title V operating permit or other federally enforceable permit, such 
permit shall include a CAIR permit administered by the permitting 
authority for the title V operating permit or the federally enforceable 
permit as applicable. The CAIR portion of the title V permit or other 
federally enforceable permit as applicable shall be administered in 
accordance with the permitting authority's title V operating permits 
regulations promulgated under part 70 or 71 of this chapter or the 
permitting authority's regulations for other federally enforceable 
permits as applicable, except as provided otherwise by Sec. 97.205, 
this subpart, and subpart III of this part.
    (b) Each CAIR permit shall contain, with regard to the CAIR 
SO2 source and the CAIR SO2 units at the source 
covered by the CAIR permit, all applicable CAIR SO2 Trading 
Program, CAIR NOX Annual Trading Program, and CAIR 
NOX Ozone Season Trading Program requirements and shall be a 
complete and separable portion of the title V operating permit or other 
federally enforceable permit under paragraph (a) of this section.



Sec. 97.221  Submission of CAIR permit applications.

    (a) Duty to apply. The CAIR designated representative of any CAIR 
SO2 source required to have a title V operating permit shall 
submit to the permitting authority a complete CAIR permit application 
under Sec. 97.222 for the source covering each CAIR SO2 unit 
at the source at least 18 months (or such lesser time provided by the 
permitting authority) before the later of January 1, 2010 or the date on 
which the CAIR SO2 unit commences commercial operation, 
except as provided in Sec. 97.283(a).
    (b) Duty to reapply. For a CAIR SO2 source required to 
have a title V operating permit, the CAIR designated representative 
shall submit a complete CAIR permit application under Sec. 97.222 for 
the source covering each CAIR SO2 unit at the source to renew 
the CAIR permit in accordance with the permitting authority's title V 
operating permits regulations addressing permit renewal, except as 
provided in Sec. 97.283(b).



Sec. 97.222  Information requirements for CAIR permit applications.

    A complete CAIR permit application shall include the following 
elements concerning the CAIR SO2 source for which the 
application is submitted, in a format prescribed by the permitting 
authority:
    (a) Identification of the CAIR SO2 source;
    (b) Identification of each CAIR SO2 unit at the CAIR 
SO2 source; and
    (c) The standard requirements under Sec. 97.206.



Sec. 97.223  CAIR permit contents and term.

    (a) Each CAIR permit will contain, in a format prescribed by the 
permitting authority, all lements required for a complete CAIR permit 
application under Sec. 97.222.
    (b) Each CAIR permit is deemed to incorporate automatically the 
definitions of terms under Sec. 97.202 and, upon recordation by the 
Administrator under subpart FFF, GGG, or III of this part, every 
allocation, transfer, or deduction of a CAIR SO2 allowance to 
or from the compliance account of the CAIR SO2 source covered 
by the permit.
    (c) The term of the CAIR permit will be set by the permitting 
authority, as necessary to facilitate coordination of the renewal of the 
CAIR permit with issuance, revision, or renewal of the CAIR 
SO2 source's title V operating permit or other federally 
enforceable permit as applicable.



Sec. 97.224  CAIR permit revisions.

    Except as provided in Sec. 97.223(b), the permitting authority will 
revise the

[[Page 963]]

CAIR permit, as necessary, in accordance with the permitting authority's 
title V operating permits regulations or the permitting authority's 
regulations for other federally enforceable 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 in Sec. 97.284(e), upon 
receipt of a complete certificate of representation under Sec. 97.213, 
the Administrator will establish a compliance account for the CAIR 
SO2 source for which the certificate of representation was 
submitted, unless the source already has a compliance account.
    (b) General accounts--(1) Application for general account. (i) Any 
person may apply to open a general account for the purpose of holding 
and transferring CAIR SO2 allowances. An application for a 
general account may designate one and only one CAIR authorized account 
representative and one and only one alternate CAIR authorized account 
representative who may act on behalf of the CAIR authorized account 
representative. The agreement by which the alternate CAIR authorized 
account representative is selected shall include a procedure for 
authorizing the alternate CAIR authorized account representative to act 
in lieu of the CAIR authorized account representative.
    (ii) A complete application for a general account shall be submitted 
to the Administrator and shall include the following elements in a 
format prescribed by the Administrator:
    (A) Name, mailing address, e-mail address (if any), telephone 
number, and facsimile transmission number (if any) of the CAIR 
authorized account representative and any alternate CAIR authorized 
account representative;
    (B) Organization name and type of organization, if applicable;
    (C) A list of all persons subject to a binding agreement for the 
CAIR authorized account representative and any alternate CAIR authorized 
account representative to represent their ownership interest with 
respect to the CAIR SO2 allowances held in the general 
account;
    (D) The following certification statement by the CAIR authorized 
account representative and any alternate CAIR authorized account 
representative: ``I certify that I was selected as the CAIR authorized 
account representative or the alternate CAIR authorized account 
representative, as applicable, by an agreement that is binding on all 
persons who have an ownership interest with respect to CAIR 
SO2 allowances held in the general account. I certify that I 
have all the necessary authority to carry out my duties and 
responsibilities under the CAIR SO2 Trading Program on behalf 
of such persons and that each such person shall be fully bound by my 
representations, actions, inactions, or submissions and by any order or 
decision issued to me by the Administrator or a court regarding the 
general account.''
    (E) The signature of the CAIR authorized account representative and 
any alternate CAIR authorized account representative and the dates 
signed.
    (iii) Unless otherwise required by the permitting authority or the 
Administrator, documents of agreement referred to in the application for 
a general account shall not be submitted to the permitting authority or 
the Administrator. Neither the permitting authority nor the 
Administrator shall be under any obligation to review or evaluate the 
sufficiency of such documents, if submitted.
    (2) Authorization of CAIR authorized account representative and 
alternate CAIR authorized account representative. (i) Upon receipt by 
the Administrator of a complete application for a general account under 
paragraph (b)(1) of this section:
    (A) The Administrator will establish a general account for the 
person or persons for whom the application is submitted.
    (B) The CAIR authorized account representative and any alternate 
CAIR authorized account representative for the general account shall 
represent and, by his or her representations, actions, inactions, or 
submissions, legally bind

[[Page 964]]

each person who has an ownership interest with respect to CAIR 
SO2 allowances held in the general account in all matters 
pertaining to the CAIR SO2 Trading Program, notwithstanding 
any agreement between the CAIR authorized account representative or any 
alternate CAIR authorized account representative and such person. Any 
such person shall be bound by any order or decision issued to the CAIR 
authorized account representative or any alternate CAIR authorized 
account representative by the Administrator or a court regarding the 
general account.
    (C) Any representation, action, inaction, or submission by any 
alternate CAIR authorized account representative shall be deemed to be a 
representation, action, inaction, or submission by the CAIR authorized 
account representative.
    (ii) Each submission concerning the general account shall be 
submitted, signed, and certified by the CAIR authorized account 
representative or any alternate CAIR authorized account representative 
for the persons having an ownership interest with respect to CAIR 
SO2 allowances held in the general account. Each such 
submission shall include the following certification statement by the 
CAIR authorized account representative or any alternate CAIR authorized 
account representative: ``I am authorized to make this submission on 
behalf of the persons having an ownership interest with respect to the 
CAIR SO2 allowances held in the general account. I certify 
under penalty of law that I have personally examined, and am familiar 
with, the statements and information submitted in this document and all 
its attachments. Based on my inquiry of those individuals with primary 
responsibility for obtaining the information, I certify that the 
statements and information are to the best of my knowledge and belief 
true, accurate, and complete. I am aware that there are significant 
penalties for submitting false statements and information or omitting 
required statements and information, including the possibility of fine 
or imprisonment.''
    (iii) The Administrator will accept or act on a submission 
concerning the general account only if the submission has been made, 
signed, and certified in accordance with paragraph (b)(2)(ii) of this 
section.
    (3) Changing CAIR authorized account representative and alternate 
CAIR authorized account representative; changes in persons with 
ownership interest. (i) The CAIR authorized account representative for a 
general account may be changed at any time upon receipt by the 
Administrator of a superseding complete application for a general 
account under paragraph (b)(1) of this section. Notwithstanding any such 
change, all representations, actions, inactions, and submissions by the 
previous CAIR authorized account representative before the time and date 
when the Administrator receives the superseding application for a 
general account shall be binding on the new CAIR authorized account 
representative and the persons with an ownership interest with respect 
to the CAIR SO2 allowances in the general account.
    (ii) The alternate CAIR authorized account representative for a 
general account may be changed at any time upon receipt by the 
Administrator of a superseding complete application for a general 
account under paragraph (b)(1) of this section. Notwithstanding any such 
change, all representations, actions, inactions, and submissions by the 
previous alternate CAIR authorized account representative before the 
time and date when the Administrator receives the superseding 
application for a general account shall be binding on the new alternate 
CAIR authorized account representative and the persons with an ownership 
interest with respect to the CAIR SO2 allowances in the 
general account.
    (iii)(A) In the event a person having an ownership interest with 
respect to CAIR SO2 allowances in the general account is not 
included in the list of such persons in the application for a general 
account, such person shall be deemed to be subject to and bound by the 
application for a general account, the representation, actions, 
inactions, and submissions of the CAIR authorized account representative 
and any alternate CAIR authorized account representative of the account, 
and the decisions and orders of the Administrator or a

[[Page 965]]

court, as if the person were included in such list.
    (B) Within 30 days following any change in the persons having an 
ownership interest with respect to CAIR SO2 allowances in the 
general account, including the addition of a new person, the CAIR 
authorized account representative or any alternate CAIR authorized 
account representative shall submit a revision to the application for a 
general account amending the list of persons having an ownership 
interest with respect to the CAIR SO2 allowances in the 
general account to include the change.
    (4) Objections concerning CAIR authorized account representative and 
alternate CAIR authorized account representative. (i) Once a complete 
application for a general account under paragraph (b)(1) of this section 
has been submitted and received, the Administrator will rely on the 
application unless and until a superseding 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)(3)(i) or (ii) of this 
section, no objection or other communication submitted to the 
Administrator concerning the authorization, or any representation, 
action, inaction, or submission of the CAIR authorized account 
representative or any alternate CAIR authorized account representative 
for a general account shall affect any representation, action, inaction, 
or submission of the CAIR authorized account representative or any 
alternate CAIR authorized account representative or the finality of any 
decision or order by the Administrator under the CAIR SO2 
Trading Program.
    (iii) The Administrator will not adjudicate any private legal 
dispute concerning the authorization or any representation, action, 
inaction, or submission of the CAIR authorized account representative or 
any alternate CAIR authorized account representative for a general 
account, including private legal disputes concerning the proceeds of 
CAIR SO2 allowance transfers.
    (5) Delegation by CAIR authorized account representative and 
alternate CAIR authorized account representative. (i) A CAIR authorized 
account representative may delegate, to one or more natural persons, his 
or her authority to make an electronic submission to the Administrator 
provided for or required under subparts FFF and GGG of this part.
    (ii) An alternate CAIR authorized account representative may 
delegate, to one or more natural persons, his or her authority to make 
an electronic submission to the Administrator provided for or required 
under subparts FFF and GGG of this part.
    (iii) In order to delegate authority to make an electronic 
submission to the Administrator in accordance with paragraph (b)(5)(i) 
or (ii) of this section, the CAIR authorized account representative or 
alternate CAIR authorized account representative, as appropriate, must 
submit to the Administrator a notice of delegation, in a format 
prescribed by the Administrator, that includes the following elements:
    (A) The name, address, e-mail address, telephone number, and 
facsimile transmission number (if any) of such CAIR authorized account 
representative 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 of 
electronic submissions under paragraph (b)(5)(i) or (ii) of this section 
for which authority is delegated to him or her;
    (D) The following certification statement by such CAIR authorized 
account representative or alternate CAIR authorized account 
representative: ``I agree that any electronic submission to the 
Administrator that is by an agent identified in this notice of 
delegation and of a type listed for such agent in this notice of 
delegation and that is made when I am a CAIR authorized account 
representative or alternate CAIR authorized representative, as 
appropriate, and before this notice of delegation is superseded by 
another notice of delegation under 40 CFR 97.251(b)(5)(iv) shall be 
deemed to be an electronic submission by me.''; and

[[Page 966]]

    (E) The following certification statement by such CAIR authorized 
account representative or alternate CAIR authorized account 
representative: ``Until this notice of delegation is superseded by 
another notice of delegation under 40 CFR 97.251 (b)(5)(iv), I agree to 
maintain an e-mail account and to notify the Administrator immediately 
of any change in my e-mail address, unless all delegation of 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 authorized 
account representative or alternate CAIR authorized account 
representative identified in such notice, upon receipt of such notice by 
the Administrator and until receipt by the Administrator of a 
superseding notice of delegation submitted by such CAIR authorized 
account representative or alternate CAIR authorized account 
representative, as appropriate. The superseding notice of delegation may 
replace any previously identified agent, add a new agent, or eliminate 
entirely any delegation of authority.
    (v) Any electronic submission covered by the certification in 
paragraph (b)(5)(iii)(D) of this section and made in accordance with a 
notice of delegation effective under paragraph (b)(5)(iv) of this 
section shall be deemed to be an electronic submission by the CAIR 
designated representative or alternate CAIR designated representative 
submitting such notice of delegation.
    (c) Account identification. The Administrator will assign a unique 
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 Allowance 
Tracking System account, all submissions to the Administrator pertaining 
to the account, including, but not limited to, submissions concerning 
the deduction or transfer of CAIR SO2 allowances in the 
account, shall be made only by the CAIR authorized account 
representative for the account.



Sec. 97.253  Recordation of CAIR SO2 allowances.

    (a)(1) After a compliance account is established under Sec. 
97.251(a) or Sec. 73.31(a) or (b) of this chapter, the Administrator 
will record in the compliance account any CAIR SO2 allowance 
allocated to any CAIR SO2 unit at the source for each of the 
30 years starting the later of 2010 or the year in which the compliance 
account is established and any CAIR SO2 allowance allocated 
for each of the 30 years starting the later of 2010 or the year in which 
the compliance account is established and transferred to the source in 
accordance with subpart GGG of this part or subpart D of part 73 of this 
chapter.
    (2) In 2011 and each year thereafter, after Administrator has 
completed all deductions under Sec. 97.254(b), the Administrator will 
record in the compliance account any CAIR SO2 allowance 
allocated to any CAIR SO2 unit at the source for the new 30th 
year (i.e., the year that is 30 years after the calendar year for which 
such deductions are or could be made) and any CAIR SO2 
allowance allocated for the new 30th year and transferred to the source 
in accordance with subpart GGG of this part or subpart D of part 73 of 
this chapter.
    (b)(1) After a general account is established under Sec. 97.251(b) 
or Sec. 73.31(c) of this chapter, the Administrator will record in the 
general account any CAIR SO2 allowance allocated for each of 
the 30 years starting the later of 2010 or the year in which the general 
account is established and transferred to the general account in 
accordance with subpart GGG of this part or subpart D of part 73 of this 
chapter.
    (2) In 2011 and each year thereafter, after Administrator has 
completed all deductions under Sec. 97.254(b), the Administrator will 
record in the general account any CAIR SO2 allowance 
allocated for the new 30th year (i.e., the year that is 30 years after 
the calendar year for which such deductions are or could be made) and 
transferred to the general account in accordance with subpart GGG of 
this part or subpart D of part 73 of this chapter.
    (c) Serial numbers for allocated CAIR SO2 allowances. When recording 
the allocation of CAIR SO2 allowances issued by a permitting 
authority under

[[Page 967]]

Sec. 97.288, the Administrator will assign each such CAIR 
SO2 allowance a unique identification number that will 
include digits identifying the year of the control period for which the 
CAIR SO2 allowance is allocated.



Sec. 97.254  Compliance with CAIR SO2 emissions limitation.

    (a) Allowance transfer deadline. The CAIR SO2 allowances 
are available to be deducted for compliance with a source's CAIR 
SO2 emissions limitation for a control period in a given 
calendar year only if the CAIR SO2 allowances:
    (1) Were allocated for the control period in the year or a prior 
year; and
    (2) Are held in the compliance account as of the allowance transfer 
deadline for the control period or are transferred into the compliance 
account by a CAIR SO2 allowance transfer correctly submitted 
for recordation under Sec. Sec. 97.260 and 97.261 by the allowance 
transfer deadline for the control period.
    (b) Deductions for compliance. Following the recordation, in 
accordance with Sec. 97.261, of CAIR SO2 allowance transfers 
submitted for recordation in a source's compliance account by the 
allowance transfer deadline for a control period, the Administrator will 
deduct from the compliance account CAIR SO2 allowances 
available under paragraph (a) of this section in order to determine 
whether the source meets the CAIR SO2 emissions limitation 
for the control period as follows:
    (1) For a CAIR SO2 source subject to an Acid Rain 
emissions 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 a permitting 
authority under Sec. 97.288, that is required under Sec. Sec. 73.35(b) 
and (c) of this part. If there are sufficient CAIR SO2 
allowances to complete this deduction, the deduction will be treated as 
satisfying the requirements of Sec. Sec. 73.35(b) and (c) of this 
chapter.
    (ii) Deduct the amount of CAIR SO2 allowances, not issued 
by a permitting authority under Sec. 97.288, that is required under 
Sec. Sec. 73.35(d) and 77.5 of this part. If there are sufficient CAIR 
SO2 allowances to complete this deduction, the deduction will 
be treated as satisfying the requirements of Sec. Sec. 73.35(d) and 
77.5 of this chapter.
    (iii) Treating the CAIR SO2 allowances deducted under 
paragraph (b)(1)(i) of this section as also being deducted under this 
paragraph (b)(1)(iii), deduct CAIR SO2 allowances available 
under paragraph (a) of this section (including any issued by a 
permitting authority under Sec. 97.288) in order to determine whether 
the source meets the CAIR SO2 emissions limitation for the 
control period, as follows:
    (A) Until the tonnage equivalent of the CAIR SO2 
allowances deducted equals, or exceeds in accordance with paragraphs 
(c)(1) and (2) of this section, the number of tons of total sulfur 
dioxide emissions, determined in accordance with subpart HHH of this 
part, from all CAIR SO2 units at the source for the control 
period; or
    (B) If there are insufficient CAIR SO2 allowances to 
complete the deductions in paragraph (b)(1)(iii)(A) of this section, 
until no more CAIR SO2 allowances available under paragraph 
(a) of this section (including any issued by a permitting authority 
under Sec. 97.288) remain in the compliance account.
    (2) For a CAIR SO2 source not subject to an Acid Rain 
emissions limitation, the Administrator will deduct CAIR SO2 
allowances available under paragraph (a) of this section (including any 
issued by a permitting authority under Sec. 97.288) in order to 
determine whether the source meets the CAIR SO2 emissions 
limitation for the control period, as follows:
    (i) Until the tonnage equivalent of the CAIR SO2 
allowances deducted equals, or exceeds in accordance with paragraphs 
(c)(1) and (2) of this section, the number of tons of total sulfur 
dioxide emissions, determined in accordance with subpart HHH of this 
part, from all CAIR SO2 units at the source for the control 
period; or
    (ii) If there are insufficient CAIR SO2 allowances to 
complete the deductions in paragraph (b)(2)(i) of this section, until no 
more CAIR SO2 allowances available under paragraph (a) of 
this section (including any issued by a permitting authority under Sec. 
97.288) remain in the compliance account.

[[Page 968]]

    (c)(1) Identification of CAIR SO2 allowances by serial 
number. The CAIR authorized account representative for a source's 
compliance account may request that specific CAIR SO2 
allowances, identified by serial number, in the compliance account be 
deducted for emissions or excess emissions for a control period in 
accordance with paragraph (b) or (d) of this section. Such request shall 
be submitted to the Administrator by the allowance transfer deadline for 
the control period and include, in a format prescribed by the 
Administrator, the identification of the CAIR SO2 source and 
the appropriate serial numbers.
    (2) First-in, first-out. The Administrator will deduct CAIR 
SO2 allowances under paragraph (b) or (d) of this section 
from the source's compliance account, in the absence of an 
identification or in the case of a partial identification of CAIR 
SO2 allowances by serial number under paragraph (c)(1) of 
this section, on a first-in, first-out (FIFO) accounting basis in the 
following order:
    (i) Any CAIR SO2 allowances that were allocated to the 
units at the source for a control period before 2010, in the order of 
recordation;
    (ii) Any CAIR SO2 allowances that were allocated to any 
entity for a control period before 2010 and transferred and recorded in 
the compliance account pursuant to subpart GGG of this part or subpart D 
of part 73 of this chapter, in the order of recordation;
    (iii) Any CAIR SO2 allowances that were allocated to the 
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 to any 
entity for a control period during 2010 through 2014 and transferred and 
recorded in the compliance account pursuant to subpart GGG of this part 
or subpart D of part 73 of this chapter, in the order of recordation;
    (v) Any CAIR SO2 allowances that were allocated to the 
units at the source for a control period in 2015 or later, in the order 
of recordation; and
    (vi) Any CAIR SO2 allowances that were allocated to any 
entity for a control period in 2015 or later and transferred and 
recorded in the compliance account pursuant to subpart GGG of this part 
or subpart D of part 73 of this chapter, in the order of recordation.
    (d) Deductions for excess emissions. (1) After making the deductions 
for compliance under paragraph (b) of this section for a control period 
in a calendar year in which the CAIR SO2 source has excess 
emissions, the Administrator will deduct from the source's compliance 
account the tonnage equivalent in CAIR SO2 allowances, 
allocated for the control period in the immediately following calendar 
year (including any issued by a permitting authority under Sec. 
97.288), equal to, or exceeding in accordance with paragraphs (c)(1) and 
(2) of this section 3 times the following amount: the number of tons of 
the source's excess emissions minus, if the source is subject to an Acid 
Rain emissions limitation, the amount of the CAIR SO2 
allowances required to be deducted under paragraph (b)(1)(ii) of this 
section.
    (2) Any allowance deduction required under paragraph (d)(1) of this 
section shall not affect the liability of the owners and operators of 
the CAIR SO2 source or the CAIR SO2 units at the 
source for any fine, penalty, or assessment, or their obligation to 
comply with any other remedy, for the same violations, as ordered under 
the Clean Air Act or applicable State law.
    (e) Recordation of deductions. The Administrator will record in the 
appropriate compliance account all deductions from such an account under 
paragraphs (b) and (d) of this section and subpart III.
    (f) Administrator's action on submissions. (1) The Administrator may 
review and conduct independent audits concerning any submission under 
the CAIR SO2 Trading Program and make appropriate adjustments 
of the information in the submissions.
    (2) The Administrator may deduct CAIR SO2 allowances from 
or transfer CAIR SO2 allowances to a source's compliance 
account based on the information in the submissions, as adjusted under 
paragraph (f)(1) of this section, and record such deductions and 
transfers.

[[Page 969]]



Sec. 97.255  Banking.

    (a) CAIR SO2 allowances may be banked for future use or 
transfer in a compliance account or a general account in accordance with 
paragraph (b) of this section.
    (b) Any CAIR SO2 allowance that is held in a compliance 
account or a general account will remain in such account unless and 
until the CAIR SO2 allowance is deducted or transferred under 
Sec. 97.254, Sec. 97.256, or subpart GGG or III of this part.



Sec. 97.256  Account error.

    The Administrator may, at his or her sole discretion and on his or 
her own motion, correct any error in any CAIR SO2 Allowance 
Tracking System account. Within 10 business days of making such 
correction, the Administrator will notify the CAIR authorized account 
representative for the account.



Sec. 97.257  Closing of general accounts.

    (a) The CAIR authorized account representative of a general account 
may submit to the Administrator a request to close the account, which 
shall include a correctly submitted allowance transfer under Sec. Sec. 
97.260 and 97.261 for any CAIR SO2 allowances in the account 
to one or more other CAIR SO2 Allowance Tracking System 
accounts.
    (b) If a general account has no allowance transfers in or out of the 
account for a 12-month period or longer and does not contain any CAIR 
SO2 allowances, the Administrator may notify the CAIR 
authorized account representative for the account that the account will 
be closed following 20 business days after the notice is sent. The 
account will be closed after the 20-day period unless, before the end of 
the 20-day period, the Administrator receives a correctly submitted 
transfer of CAIR SO2 allowances into the account under 
Sec. Sec. 97.260 and 97.261 or a statement submitted by the CAIR 
authorized account representative demonstrating to the satisfaction of 
the Administrator good cause as to why the account should 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 recordation of 
a CAIR SO2 allowance transfer shall submit the transfer to 
the Administrator. To be considered correctly submitted, the CAIR 
SO2 allowance transfer shall include the following elements, 
in a format specified by the Administrator:
    (1) The account numbers of both the transferor and transferee 
accounts;
    (2) The serial number of each CAIR SO2 allowance that is 
in the transferor account and is to be transferred; and
    (3) The name and signature of the CAIR authorized account 
representatives of the transferor and transferee accounts and the dates 
signed.
    (b)(1) The CAIR authorized account representative for the transferee 
account can meet the requirements in paragraph (a)(3) of this section by 
submitting, in a format prescribed by the Administrator, a statement 
signed by the CAIR authorized account representative and identifying 
each account into which any transfer of allowances, submitted on or 
after the date on which the Administrator receives such statement, is 
authorized. Such authorization shall be binding on any CAIR authorized 
account representative for such account and shall apply to all transfers 
into the account that are submitted on or after such date of receipt, 
unless and until the Administrator receives a statement signed by the 
CAIR authorized account representative retracting the authorization for 
the account.
    (2) The statement under paragraph (b)(1) of this section shall 
include the following: ``By this signature I authorize any transfer of 
allowances into each account listed herein, except that I do not waive 
any remedies under State or Federal law to obtain correction of any 
erroneous transfers into such accounts. This authorization shall be 
binding on any CAIR authorized account representative for such account 
unless and until a statement signed by the CAIR

[[Page 970]]

authorized account representative retracting this authorization for the 
account is received by the Administrator.''



Sec. 97.261  EPA recordation.

    (a) Within 5 business days (except as necessary to perform a 
transfer in perpetuity of CAIR SO2 allowances allocated to a 
CAIR SO2 unit or as provided in paragraph (b) of this 
section) of receiving a CAIR SO2 allowance transfer, the 
Administrator will record a CAIR SO2 allowance transfer by 
moving each CAIR SO2 allowance from the transferor account to 
the transferee account as specified by the request, provided that:
    (1) The transfer is correctly submitted under Sec. 97.260;
    (2) The transferor account includes each CAIR SO2 
allowance identified by serial number in the transfer; and
    (3) The transfer is in accordance with the limitation on transfer 
under Sec. 74.42 of this chapter and Sec. 74.47(c) of this chapter, as 
applicable.
    (b) A CAIR SO2 allowance transfer that is submitted for 
recordation after the allowance transfer deadline for a control period 
and that includes any CAIR SO2 allowances allocated for any 
control period before such allowance transfer deadline will not be 
recorded until after the Administrator completes the deductions under 
Sec. 97.254 for the control period immediately before such allowance 
transfer deadline.
    (c) Where a CAIR SO2 allowance transfer submitted for 
recordation fails to meet the requirements of paragraph (a) of this 
section, the Administrator will not record such transfer.



Sec. 97.262  Notification.

    (a) Notification of recordation. Within 5 business days of 
recordation of a CAIR SO2 allowance transfer under Sec. 
97.261, the Administrator will notify the CAIR authorized account 
representatives of both the transferor and transferee accounts.
    (b) Notification of non-recordation. Within 10 business days of 
receipt of a CAIR SO2 allowance transfer that fails to meet 
the requirements of Sec. 97.261(a), the Administrator will notify the 
CAIR authorized account representatives of 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 a CAIR 
SO2 allowance transfer for recordation following notification 
of non-recordation.



                  Subpart HHH_Monitoring and Reporting



Sec. 97.270  General requirements.

    The owners and operators, and to the extent applicable, the CAIR 
designated representative, of a CAIR SO2 unit, shall comply 
with the monitoring, recordkeeping, and reporting requirements as 
provided in this subpart and in subparts F and G of part 75 of this 
chapter. For purposes of complying with such requirements, the 
definitions in Sec. 97.202 and in Sec. 72.2 of this chapter shall 
apply, and the terms ``affected unit,'' ``designated representative,'' 
and ``continuous emission monitoring system'' (or ``CEMS'') in part 75 
of this chapter shall be deemed to refer to the terms ``CAIR 
SO2 unit,'' ``CAIR designated representative,'' and 
``continuous emission monitoring system'' or (``CEMS'') respectively, as 
defined in Sec. 97.202. The owner or operator of a unit that is not a 
CAIR SO2 unit but that is monitored under Sec. 75.16(b)(2) 
of this chapter shall comply with the same monitoring, recordkeeping, 
and reporting requirements as a CAIR SO2 unit.
    (a) Requirements for installation, certification, and data 
accounting. The owner or operator of each CAIR SO2 unit 
shall:
    (1) Install all monitoring systems required under this subpart for 
monitoring SO2 mass emissions and individual unit heat input 
(including all systems required to monitor SO2 concentration, 
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 and 75.16 of this chapter);
    (2) Successfully complete all certification tests required under 
Sec. 97.271 and meet all other requirements of this subpart and part 75 
of this chapter applicable to the monitoring systems

[[Page 971]]

under paragraph (a)(1) of this section; and
    (3) Record, report, and quality-assure the data from the monitoring 
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 monitoring system 
certification and other requirements of paragraphs (a)(1) and (2) of 
this section on or before the following dates. The owner or operator 
shall record, report, and quality-assure the data from the monitoring 
systems under paragraph (a)(1) of this section on and after the 
following dates.
    (1) For the owner or operator of a CAIR SO2 unit that 
commences commercial operation before July 1, 2008, by January 1, 2009.
    (2) For the owner or operator of a CAIR SO2 unit that 
commences commercial operation on or after July 1, 2008, by the later of 
the following dates:
    (i) January 1, 2009; or
    (ii) 90 unit operating days or 180 calendar days, whichever occurs 
first, after the date on which the unit commences commercial operation.
    (3) For the owner or operator of a CAIR SO2 unit for 
which construction of a new stack or flue or installation of add-on 
SO2 emission controls is completed after the applicable 
deadline under paragraph (b)(1), (2), (4), or (5) of this section, by 90 
unit operating days or 180 calendar days, whichever occurs first, after 
the date on which emissions first exit to the atmosphere through the new 
stack or flue or add-on SO2 emissions controls.
    (4) Notwithstanding the dates in paragraphs (b)(1) and (2) of this 
section, for the owner or operator of a unit for which a CAIR opt-in 
permit application is submitted and not withdrawn and a CAIR opt-in 
permit is not yet issued or denied under subpart III of this part, by 
the date specified in Sec. 97.284(b).
    (5) Notwithstanding the dates in paragraphs (b)(1) and (2) of this 
section, for the owner or operator of a CAIR SO2 opt-in unit 
under subpart III of this part, by the date on which the CAIR 
SO2 opt-in unit enters the CAIR SO2 Trading 
Program as provided in Sec. 97.284(g).
    (c) Reporting data. The owner or operator of a CAIR SO2 
unit that does not meet the applicable compliance date set forth in 
paragraph (b) of this section for any monitoring system under paragraph 
(a)(1) of this section shall, for each such monitoring system, 
determine, record, and report maximum potential (or, as appropriate, 
minimum potential) values for SO2 concentration, stack gas 
flow rate, stack gas moisture content, fuel flow rate, and any other 
parameters required to determine SO2 mass emissions and heat 
input in accordance with Sec. 75.31(b)(2) or (c)(3) of this chapter or 
section 2.4 of appendix D to part 75 of this chapter, as applicable.
    (d) Prohibitions. (1) No owner or operator of a CAIR SO2 
unit shall use any alternative monitoring system, alternative reference 
method, or any other alternative to any requirement of this subpart 
without having obtained prior written approval in accordance with Sec. 
97.275.
    (2) No owner or operator of a CAIR SO2 unit shall operate 
the unit so as to discharge, or allow to be discharged, SO2 
emissions to the atmosphere without accounting for all such emissions in 
accordance with the applicable provisions of this subpart and part 75 of 
this chapter.
    (3) No owner or operator of a CAIR SO2 unit shall disrupt 
the continuous emission monitoring system, any portion thereof, or any 
other approved emission monitoring method, and thereby avoid monitoring 
and recording SO2 mass emissions discharged into the 
atmosphere or heat input, except for periods of recertification or 
periods when calibration, quality assurance testing, or maintenance is 
performed in accordance with the applicable provisions of this subpart 
and part 75 of this chapter.
    (4) No owner or operator of a CAIR SO2 unit shall retire 
or permanently discontinue use of the continuous emission monitoring 
system, any component thereof, or any other approved monitoring system 
under this subpart, except under any one of the following circumstances:
    (i) During the period that the unit is covered by an exemption under 
Sec. 97.205 that is in effect;

[[Page 972]]

    (ii) The owner or operator is monitoring emissions from the unit 
with another certified monitoring system approved, in accordance with 
the applicable provisions of this subpart and part 75 of this chapter, 
by the Administrator for use at that unit that provides emission data 
for the same pollutant or parameter as the retired or discontinued 
monitoring system; or
    (iii) The CAIR designated representative submits notification of the 
date of certification testing of a replacement monitoring system for the 
retired or discontinued monitoring system in accordance with Sec. 
97.271(d)(3)(i).
    (e) Long-term cold storage. The owner or operator of a CAIR 
SO2 unit is subject to the applicable provisions of part 75 
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 be 
exempt from the initial certification requirements of this section for a 
monitoring system under Sec. 97.270(a)(1) if the following conditions 
are met:
    (1) The monitoring system has been previously certified in 
accordance with part 75 of this chapter; and
    (2) The applicable quality-assurance and quality-control 
requirements of Sec. 75.21 of this chapter and appendix B and appendix 
D to part 75 of this chapter are fully met for the certified monitoring 
system described in paragraph (a)(1) of this section.
    (b) The recertification provisions of this section shall apply to a 
monitoring system under Sec. 97.270(a)(1) exempt from initial 
certification requirements under paragraph (a) of this section.
    (c) [Reserved]
    (d) Except as provided in paragraph (a) of this section, the owner 
or operator of a CAIR SO2 unit shall comply with the 
following initial certification and recertification procedures, for a 
continuous monitoring system (i.e., a continuous emission monitoring 
system and an excepted monitoring system under appendix D to part 75 of 
this chapter) under Sec. 97.270(a)(1). The owner or operator of a unit 
that qualifies to use the low mass emissions excepted monitoring 
methodology under Sec. 75.19 of this chapter or that qualifies to use 
an alternative monitoring system under subpart E of part 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 or operator 
shall ensure that each continuous monitoring system under Sec. 
97.270(a)(1) (including the automated data acquisition and handling 
system) successfully completes all of the initial certification testing 
required under Sec. 75.20 of this chapter by the applicable deadline in 
Sec. 97.270(b). In addition, whenever the owner or operator installs a 
monitoring system to meet the requirements of this subpart in a location 
where no such monitoring system was previously installed, initial 
certification in accordance with Sec. 75.20 of this chapter is 
required.
    (2) Requirements for recertification. Whenever the owner or operator 
makes a replacement, modification, or change in any certified continuous 
emission monitoring system under Sec. 97.270(a)(1) that may 
significantly affect the ability of the system to accurately measure or 
record SO2 mass emissions or heat input rate or to meet the 
quality-assurance and quality-control requirements of Sec. 75.21 of 
this chapter or appendix B to part 75 of this chapter, the owner or 
operator shall recertify the monitoring system 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's operation that may significantly change the stack 
flow or concentration profile, the owner or operator shall recertify 
each continuous emission monitoring system whose accuracy is potentially 
affected by the change, in accordance with Sec. 75.20(b) of this 
chapter. Examples of changes to a continuous emission monitoring system 
that require recertification include: replacement of the analyzer, 
complete replacement of an existing continuous emission monitoring 
system, or change in location or orientation of the sampling probe or 
site. Any fuel flowmeter system under Sec. 97.270(a)(1) is subject to 
the recertification requirements in Sec. 75.20(g)(6) of this chapter.

[[Page 973]]

    (3) Approval process for initial certification and recertification. 
Paragraphs (d)(3)(i) through (iv) of this section apply to both initial 
certification and recertification of a continuous monitoring system 
under Sec. 97.270(a)(1). For recertifications, 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 designated 
representative shall submit to the appropriate EPA Regional Office and 
the Administrator written notice of the dates of certification testing, 
in accordance with Sec. 97.273.
    (ii) Certification application. The CAIR designated representative 
shall submit to the Administrator a certification application for each 
monitoring system. A complete certification application shall include 
the information specified in Sec. 75.63 of this chapter.
    (iii) Provisional certification date. The provisional certification 
date for a monitoring system shall be determined in accordance with 
Sec. 75.20(a)(3) of this chapter. A provisionally certified monitoring 
system may be used under the CAIR SO2 Trading Program for a 
period not to exceed 120 days after receipt by the Administrator of the 
complete certification application for the monitoring system under 
paragraph (d)(3)(ii) of this section. Data measured and recorded by the 
provisionally certified monitoring system, in accordance with the 
requirements of part 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 
provisional certification by issuing a notice of disapproval within 120 
days of the date of receipt of the complete certification application by 
the Administrator.
    (iv) Certification application approval process. The Administrator 
will issue a written notice of approval or disapproval of the 
certification application to the owner or operator within 120 days of 
receipt of the complete certification application under paragraph 
(d)(3)(ii) of this section. In the event the Administrator does not 
issue such a notice within such 120-day period, each monitoring system 
that meets the applicable performance requirements of part 75 of this 
chapter and is included in the certification application will be deemed 
certified for use under the CAIR SO2 Trading Program.
    (A) Approval notice. If the certification application is complete 
and shows that each monitoring system meets the applicable performance 
requirements of part 75 of this chapter, then the Administrator will 
issue a written notice of approval of the certification application 
within 120 days of receipt.
    (B) Incomplete application notice. If the certification application 
is not complete, then the Administrator will issue a written notice of 
incompleteness that sets a reasonable date by which the CAIR designated 
representative must submit the additional information required to 
complete the certification application. If the CAIR designated 
representative does not comply with the notice of incompleteness by the 
specified date, then the Administrator may issue a notice of disapproval 
under paragraph (d)(3)(iv)(C) of this section. The 120-day review period 
shall not begin before receipt of a complete certification application.
    (C) Disapproval notice. If the certification application shows that 
any monitoring system does not meet the performance requirements of part 
75 of this chapter or if the certification application is incomplete and 
the requirement for disapproval under paragraph (d)(3)(iv)(B) of this 
section is met, then the Administrator will issue a written notice of 
disapproval of the certification application. Upon issuance of such 
notice of disapproval, the provisional certification is invalidated by 
the Administrator and the data measured and recorded by each uncertified 
monitoring system shall not be considered valid quality-assured data 
beginning with the date and hour of provisional certification (as 
defined under Sec. 75.20(a)(3) of this chapter). The owner or operator 
shall follow the procedures for loss of certification in paragraph 
(d)(3)(v) of this section for each

[[Page 974]]

monitoring system that is disapproved for initial certification.
    (D) Audit decertification. The Administrator may issue a notice of 
disapproval of the certification status of a monitor in accordance with 
Sec. 97.272(b).
    (v) Procedures for loss of certification. If the Administrator 
issues a notice of disapproval of a certification application under 
paragraph (d)(3)(iv)(C) of this section or a notice of 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 unit operation 
during the period of invalid data specified under Sec. 
75.20(a)(4)(iii), Sec. 75.20(g)(7), or Sec. 75.21(e) of this chapter 
and continuing until the applicable date and hour specified under Sec. 
75.20(a)(5)(i) or (g)(7) of this chapter:
    (1) For a disapproved SO2 pollutant concentration monitor 
and disapproved flow monitor, respectively, the maximum potential 
concentration of SO2 and the maximum potential flow rate, as 
defined in sections 2.1.1.1 and 2.1.4.1 of appendix A to part 75 of this 
chapter.
    (2) For a disapproved moisture monitoring system and disapproved 
diluent gas monitoring system, respectively, the minimum potential 
moisture percentage and either the maximum potential CO2 
concentration or the minimum potential O2 concentration (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 maximum potential 
fuel flow rate, as defined in section 2.4.2.1 of appendix D to part 75 
of this chapter.
    (B) The CAIR designated representative shall submit a notification 
of certification retest dates and a new certification application in 
accordance with paragraphs (d)(3)(i) and (ii) of this section.
    (C) The owner or operator shall repeat all certification tests or 
other requirements that were failed by the monitoring system, as 
indicated in the Administrator's notice of disapproval, no later than 30 
unit operating days after the date of issuance of the notice of 
disapproval.
    (e) Initial certification and recertification procedures for units 
using the low mass emission excepted methodology under Sec. 75.19 of 
this chapter. The owner or operator of a unit qualified to use the low 
mass emissions (LME) excepted methodology under Sec. 75.19 of this 
chapter shall meet the applicable certification and recertification 
requirements in Sec. Sec. 75.19(a)(2) and 75.20(h) of this chapter. If 
the owner or operator of such a unit elects to certify a fuel flowmeter 
system for heat input determination, the owner or operator shall also 
meet the certification and recertification requirements in Sec. 
75.20(g) of this chapter.
    (f) Certification/recertification procedures for alternative 
monitoring systems. The CAIR designated representative of each unit for 
which the owner or operator intends to use an alternative monitoring 
system approved by the Administrator under subpart E of part 75 of this 
chapter shall comply with the applicable notification and application 
procedures of Sec. 75.20(f) of this 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 validation 
requirements of part 75 of this chapter, data shall be substituted using 
the applicable missing data procedures in subpart D of appendix D to 
part 75 of this chapter.
    (b) Audit decertification. Whenever both an audit of a monitoring 
system and a review of the initial certification or recertification 
application reveal that any monitoring system should not have been 
certified or recertified because it did not meet a particular 
performance specification or other requirement under Sec. 97.271 or the 
applicable provisions of part 75 of this chapter, both at the time of 
the initial certification or recertification application submission and 
at the time of the audit, the Administrator will issue a notice of 
disapproval of the certification status of such monitoring system. For 
the purposes of this paragraph, an audit shall be either a field audit 
or an audit of any information submitted to the permitting authority or 
the Administrator. By issuing the

[[Page 975]]

notice of disapproval, the Administrator revokes prospectively the 
certification status of the monitoring system. The data measured and 
recorded by the monitoring system shall not be considered valid quality-
assured data from the date of issuance of the notification of the 
revoked certification status until the date and time that the owner or 
operator completes subsequently approved initial certification or 
recertification tests for the monitoring system. The owner or operator 
shall follow the applicable initial certification or recertification 
procedures in Sec. 97.271 for each disapproved monitoring system.



Sec. 97.273  Notifications.

    The CAIR designated representative for a CAIR SO2 unit 
shall submit written notice to the Administrator in accordance with 
Sec. 75.61 of this chapter. Sec. 97.274 Recordkeeping and reporting.
    (a) General provisions. The CAIR designated representative shall 
comply with all recordkeeping and reporting requirements in this 
section, the applicable recordkeeping and reporting requirements in 
subparts F and G of part 75 of this chapter, and the requirements of 
Sec. 97.210(e)(1).
    (b) Monitoring Plans. The owner or operator of a CAIR SO2 
unit shall comply with requirements of Sec. 75.62 of this chapter and, 
for a unit for which a CAIR opt-in permit application is submitted and 
not withdrawn and a CAIR opt-in permit is not yet issued or denied under 
subpart III of this part, Sec. Sec. 97.283 and 97.284(a).
    (c) Certification Applications. The CAIR designated representative 
shall submit an application to the Administrator within 45 days after 
completing all initial certification or recertification tests required 
under Sec. 97.271, including the information required under Sec. 75.63 
of this chapter.
    (d) Quarterly reports. The CAIR designated representative shall 
submit quarterly reports, as follows:
    (1) The CAIR designated representative shall report the 
SO2 mass emissions data and heat input data for the CAIR 
SO2 unit, in an electronic quarterly report in a format 
prescribed by the Administrator, for each calendar quarter beginning 
with:
    (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 after July 
1, 2008, the calendar quarter corresponding to the earlier of the date 
of provisional certification or the applicable deadline for initial 
certification under Sec. 97.270(b), unless that quarter is the third or 
fourth quarter of 2008, in which case reporting shall commence in the 
quarter covering January 1, 2009 through March 31, 2009;
    (iii) Notwithstanding paragraphs (d)(1)(i) and (ii) of this section, 
for a unit for which a CAIR opt-in permit application is submitted and 
not withdrawn and a CAIR opt-in permit is not yet issued or denied under 
subpart III of this part, the calendar quarter corresponding to the date 
specified in Sec. 97.284(b); and
    (iv) Notwithstanding paragraphs (d)(1)(i) and (ii) of this section, 
for a CAIR SO2 opt-in unit under subpart III of this part, 
the calendar quarter corresponding to the date on which the CAIR 
SO2 opt-in unit enters the CAIR SO2 Trading 
Program as provided in Sec. 97.284(g).
    (2) The CAIR designated representative shall submit each quarterly 
report to the Administrator within 30 days following the end of the 
calendar quarter covered by the report. Quarterly reports shall be 
submitted in the manner specified in Sec. 75.64 of this chapter.
    (3) For CAIR SO2 units that are also subject to an Acid 
Rain emissions limitation or the CAIR NOX Annual Trading 
Program, CAIR NOX Ozone Season Trading Program, or Hg Budget 
Trading Program, quarterly reports shall include the applicable data and 
information required by subparts F through I of part 75 of this chapter 
as applicable, in addition to the SO2 mass emission data, 
heat input data, and other information required by this subpart.
    (e) Compliance certification. The CAIR designated representative 
shall submit to the Administrator a compliance certification (in a 
format prescribed by the Administrator) in support of each quarterly 
report based on reasonable inquiry of those persons with primary 
responsibility for ensuring that all of

[[Page 976]]

the unit's emissions are correctly and fully monitored. The 
certification shall state that:
    (1) The monitoring data submitted were recorded in accordance with 
the applicable requirements of this subpart and part 75 of this chapter, 
including the quality assurance procedures and specifications; and
    (2) For a unit with add-on SO2 emission controls and for 
all hours where SO2 data are substituted in accordance with 
Sec. 75.34(a)(1) of this chapter, the add-on emission controls were 
operating within the range of parameters listed in the quality 
assurance/quality control program under appendix B to part 75 of this 
chapter and the substitute data values do not systematically 
underestimate SO2 emissions.



Sec. 97.275  Petitions.

    The CAIR designated representative of a CAIR SO2 unit may 
submit a petition under Sec. 75.66 of this chapter to the Administrator 
requesting approval to apply an alternative to any requirement of this 
subpart. Application of an alternative to any requirement of this 
subpart is in accordance with this subpart only to the extent that the 
petition is approved in writing by the Administrator, 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 the 
Administrator approves, a State implementation plan revision in 
accordance with Sec. 51.124(r)(1), (2), or (3) of this chapter 
establishing procedures concerning CAIR opt-in units;
    (b) Is not a CAIR SO2 unit under Sec. 97.204 and is not 
covered by a retired unit exemption under Sec. 97.205 that is in 
effect;
    (c) Is not covered by a retired unit exemption under Sec. 72.8 of 
this chapter that is in effect and is not an opt-in source under part 74 
of this chapter;
    (d) Has or is required or qualified to have a title V operating 
permit or other federally enforceable permit; and
    (e) Vents all of its emissions to a stack and can meet the 
monitoring, recordkeeping, and reporting requirements of subpart HH of 
this part.



Sec. 97.281   General.

    (a) Except as otherwise provided in Sec. Sec. 97.201 through 
97.204, Sec. Sec. 97.206 through 97.208, and subparts BBB and CCC and 
subparts FFF through HHH of this part, a CAIR SO2 opt-in unit 
shall be treated as a CAIR SO2 unit 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 a CAIR 
opt-in permit application is submitted and not withdrawn and a CAIR opt-
in permit is not yet issued or denied under this subpart, such unit 
shall be treated as a CAIR SO2 unit before issuance of a CAIR 
opt-in permit for such unit.



Sec. 97.282  CAIR designated representative.

    Any CAIR SO2 opt-in unit, and any unit for which a CAIR 
opt-in permit application is submitted and not withdrawn and a CAIR opt-
in permit is not yet issued or denied under this subpart, located at the 
same source as one or more CAIR SO2 units shall have the same 
CAIR designated representative and alternate CAIR designated 
representative as such CAIR SO2 units.



Sec. 97.283  Applying for CAIR opt-in permit.

    (a) Applying for initial CAIR opt-in permit. The CAIR designated 
representative of a unit meeting the requirements for a CAIR 
SO2 opt-in unit in Sec. 97.280 may apply for an initial CAIR 
opt-in permit at any time, except as provided under Sec. 97.286(f) and 
(g), and, in order to apply, must submit the following:
    (1) A complete CAIR permit application under Sec. 97.222;
    (2) A certification, in a format specified by the permitting 
authority, that the unit:
    (i) Is not a CAIR SO2 unit under Sec. 97.204 and is not 
covered by a retired unit exemption under Sec. 97.205 that is in 
effect;

[[Page 977]]

    (ii) Is not covered by a retired unit exemption under Sec. 72.8 of 
this chapter that is in effect;
    (iii) Is not and, so long as the unit is a CAIR SO2 opt-
in unit, will not become, an opt-in source under part 74 of this 
chapter;
    (iv) Vents all of its emissions to a stack; and
    (v) Has documented heat input for more than 876 hours during the 6 
months immediately preceding submission of the CAIR permit application 
under Sec. 97.222;
    (3) A monitoring plan in accordance with subpart HHH of this part;
    (4) A complete certificate of representation under Sec. 97.213 
consistent with Sec. 97.282, if no CAIR designated representative has 
been previously designated for the source that includes the unit; and
    (5) A statement, in a format specified by the permitting authority, 
whether the CAIR designated representative requests that the unit be 
allocated CAIR SO2 allowances under Sec. 97.288(b) or Sec. 
97.288(c) (subject to the conditions in Sec. Sec. 97.284(h) and 
97.286(g)), to the extent such allocation is provided in a State 
implementation plan revision submitted in accordance with Sec. 
51.124(r)(1), (2), or (3) of this chapter and approved by the 
Administrator. If allocation under Sec. 97.288(c) is requested, this 
statement shall include a statement that the owners and operators of the 
unit intend to repower 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 representative of a 
CAIR SO2 opt-in unit shall submit a complete CAIR permit 
application under Sec. 97.222 to renew the CAIR opt-in unit permit in 
accordance with the permitting authority's regulations for title V 
operating permits, or the permitting authority's regulations for other 
federally enforceable permits if applicable, addressing permit renewal.
    (2) Unless the permitting authority issues a notification of 
acceptance of withdrawal of the CAIR SO2 opt-in unit from the 
CAIR SO2 Trading Program in accordance with Sec. 97.286 or 
the unit becomes a CAIR SO2 unit under Sec. 97.204, the CAIR 
SO2 opt-in unit shall remain subject to the requirements for 
a CAIR SO2 opt-in unit, even if the CAIR designated 
representative for the CAIR SO2 opt-in unit fails to submit a 
CAIR permit application that 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 permit for 
a unit for which an initial application for a CAIR opt-in permit under 
Sec. 97.183 is submitted in accordance with the following, to the 
extent provided in a State implementation plan revision 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 permitting authority and 
the Administrator will determine, on an interim basis, the sufficiency 
of the monitoring plan accompanying the initial application for a CAIR 
opt-in permit under Sec. 97.283. A monitoring plan is sufficient, for 
purposes of interim review, if the plan appears to contain information 
demonstrating that the SO2 emissions rate and heat input of 
the unit and all other applicable parameters are monitored and reported 
in accordance with subpart HHH of this part. A determination of 
sufficiency shall not be construed as acceptance or approval of the 
monitoring plan.
    (b) Monitoring and reporting. (1)(i) If the permitting authority and 
the Administrator determine that the monitoring plan is sufficient under 
paragraph (a) of this section, the owner or operator shall monitor and 
report the SO2 emissions rate and the heat input of the unit 
and all other applicable parameters, in accordance with subpart HHH of 
this part, starting on the date of certification of the appropriate 
monitoring systems under subpart HHH of this part and continuing until a 
CAIR opt-in permit is denied under Sec. 97.284(f) or, if a CAIR opt-in 
permit is issued, the date and time when the unit is withdrawn from the 
CAIR SO2 Trading Program in accordance with Sec. 97.286.
    (ii) The monitoring and reporting under paragraph (b)(1)(i) of this 
section shall include the entire control period

[[Page 978]]

immediately before the date on which the unit enters the CAIR 
SO2 Trading Program under Sec. 97.284(g), during which 
period monitoring system availability must not be less than 90 percent 
under subpart HHH of this part and the unit must be in full compliance 
with any applicable State or Federal emissions or emissions-related 
requirements.
    (2) To the extent the SO2 emissions rate and the heat 
input of the unit are monitored and reported in accordance with subpart 
HHH of this part for one or more control periods, in addition to the 
control period under paragraph (b)(1)(ii) of this section, during which 
control periods monitoring system availability is not less than 90 
percent under subpart HHH of this part and the unit is in full 
compliance with any applicable State or Federal emissions or emissions-
related requirements and which control periods begin not more than 3 
years before the unit enters the CAIR SO2 Trading Program 
under Sec. 97.284(g), such information shall be used as provided in 
paragraphs (c) and (d) of this section.
    (c) Baseline heat input. The unit's baseline heat input shall equal:
    (1) If the unit's SO2 emissions rate and heat input are 
monitored and reported for only one control period, in accordance with 
paragraph (b)(1) of this section, the unit's total heat input (in mmBtu) 
for the control period; or
    (2) If the unit's SO2 emissions rate and heat input are 
monitored and reported for more than one control period, in accordance 
with paragraphs (b)(1) and (2) of this section, the average of the 
amounts of the unit's total heat input (in mmBtu) for the control 
periods under paragraphs (b)(1)(ii) and (2) of this section.
    (d) Baseline SO2 emission rate. The unit's baseline SO2 
emission rate shall equal:
    (1) If the unit's SO2 emissions rate and heat input are 
monitored and reported for only one control period, in accordance with 
paragraph (b)(1) of this section, the unit's SO2 emissions 
rate (in lb/mmBtu) for the control period;
    (2) If the unit's SO2 emissions rate and heat input are 
monitored and reported for more than one control period, in accordance 
with paragraphs (b)(1) and (2) of this section, and the unit does not 
have add-on SO2 emission controls during any such control 
periods, the average of the amounts of the unit's SO2 
emissions rate (in lb/mmBtu) for the control periods under paragraphs 
(b)(1)(ii) and (2) of this section; or
    (3) If the unit's SO2 emissions rate and heat input are 
monitored and reported for more than one control period, in accordance 
with paragraphs (b)(1) and (2) of this section, and the unit has add-on 
SO2 emission controls during any such control periods, the 
average of the amounts of the unit's SO2 emissions rate (in 
lb/mmBtu) for such control periods during which the unit has add-on 
SO2 emission controls.
    (e) Issuance of CAIR opt-in permit. After calculating the baseline 
heat input and the baseline SO2 emissions rate for the unit 
under paragraphs (c) and (d) of this section and if the permitting 
authority determines that the CAIR designated representative shows that 
the unit meets the requirements for a CAIR SO2 opt-in unit in 
Sec. 97.280 and meets the elements certified in Sec. 97.283(a)(2), the 
permitting authority will issue a CAIR opt-in permit. The permitting 
authority will provide a copy of the CAIR opt-in permit to the 
Administrator, who will then establish a compliance account for the 
source that includes the CAIR SO2 opt-in unit unless 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 any time before 
issuance of a CAIR opt-in permit for the unit, the permitting authority 
determines that the CAIR designated representative fails to show that 
the unit meets the requirements for a CAIR SO2 opt-in unit in 
Sec. 97.280 or meets the elements certified in Sec. 97.283(a)(2), the 
permitting authority will issue a denial of a CAIR opt-in permit for the 
unit.
    (g) Date of entry into CAIR SO2 Trading Program. A unit for which an 
initial CAIR opt-in permit is issued by the permitting authority shall 
become a CAIR SO2 opt-in unit, and a CAIR SO2 
unit, as of the later of January 1, 2010 or January 1 of the first 
control period

[[Page 979]]

during which such CAIR opt-in permit is issued.
    (h) Repowered CAIR SO2 opt-in unit. (1) If CAIR designated 
representative requests, and the permitting authority issues a CAIR opt-
in permit providing for, allocation to a CAIR SO2 opt-in unit 
of CAIR SO2 allowances under Sec. 97.288(c) and such unit is 
repowered after its date of entry into the CAIR SO2 Trading 
Program under paragraph (g) of this section, the repowered unit shall be 
treated as a CAIR SO2 opt-in unit replacing the original CAIR 
SO2 opt-in unit, as of the date of start-up of the repowered 
unit's combustion chamber.
    (2) Notwithstanding paragraphs (c) and (d) of this section, as of 
the date of start-up under paragraph (h)(1) of this section, the 
repowered unit shall be deemed to have the same date of commencement of 
operation, date of commencement of commercial operation, baseline heat 
input, and baseline SO2 emission rate as the original CAIR 
SO2 opt-in unit, and the original CAIR SO2 opt-in 
unit shall no longer be treated as a CAIR SO2 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 application 
under 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 under Sec. 
97.284(d);
    (5) A statement whether the unit is to be allocated CAIR 
SO2 allowances under Sec. 97.288(b) or Sec. 97.288(c) 
(subject to the conditions in Sec. Sec. 97.284(h) and 97.286(g));
    (6) A statement that the unit may withdraw from the CAIR 
SO2 Trading Program only in accordance with Sec. 97.286; and
    (7) A statement that the unit is subject to, and the owners and 
operators of the unit must comply with, the requirements of Sec. 
97.287.
    (b) Each CAIR opt-in permit is deemed to incorporate automatically 
the definitions of terms under Sec. 97.202 and, upon recordation by the 
Administrator under subpart FFF or GGG of this part or this subpart, 
every allocation, transfer, or deduction of CAIR SO2 
allowances to or from the compliance account of the source that includes 
a CAIR SO2 opt-in unit covered by the CAIR opt-in permit.
    (c) The CAIR opt-in permit shall be included, in a format specified 
by the permitting authority, in the CAIR permit for the source where the 
CAIR SO2 opt-in unit is located and in a title V operating 
permit or other federally enforceable permit for the source.



Sec. 97.286  Withdrawal from CAIR SO2 Trading Program.

    Except as provided under paragraph (g) of this section, a CAIR 
SO2 opt-in unit may withdraw from the CAIR SO2 
Trading Program, but only if the permitting authority issues a 
notification to the CAIR designated representative of the CAIR 
SO2 opt-in unit of the acceptance of the withdrawal of the 
CAIR SO2 opt-in unit in accordance with paragraph (d) of this 
section.
    (a) Requesting withdrawal. In order to withdraw a CAIR 
SO2 opt-in unit from the CAIR SO2 Trading Program, 
the CAIR designated representative of the CAIR SO2 opt-in 
unit shall submit to the permitting authority a request to withdraw 
effective as of midnight of December 31 of a specified calendar year, 
which date must be at least 4 years after December 31 of the year of 
entry into the CAIR SO2 Trading Program under Sec. 
97.284(g). The request must be submitted no later than 90 days before 
the requested effective date of withdrawal.
    (b) Conditions for withdrawal. Before a CAIR SO2 opt-in 
unit covered by a request under paragraph (a) of this section may 
withdraw from the CAIR SO2 Trading Program and the CAIR opt-
in permit may be terminated under paragraph (e) of this section, the 
following conditions must be met:
    (1) For the control period ending on the date on which the 
withdrawal is to be effective, the source that includes the CAIR 
SO2 opt-in unit must meet the requirement to hold CAIR 
SO2 allowances under Sec. 97.206(c) and cannot have any 
excess emissions.

[[Page 980]]

    (2) After the requirement for withdrawal under paragraph (b)(1) of 
this section is met, the Administrator will deduct from the compliance 
account of the source that includes the CAIR SO2 opt-in unit 
CAIR SO2 allowances equal in amount to and allocated for the 
same or a prior control period as any CAIR SO2 allowances 
allocated to the CAIR SO2 opt-in unit under Sec. 97.288 for 
any control period for which the withdrawal is to be effective. If there 
are no remaining CAIR SO2 units at the source, the 
Administrator will close the compliance account, and the owners and 
operators of the CAIR SO2 opt-in unit may submit a CAIR 
SO2 allowance transfer for any remaining CAIR SO2 
allowances to another CAIR SO2 Allowance Tracking System in 
accordance with subpart GGG of this part.
    (c) Notification. (1) After the requirements for withdrawal under 
paragraphs (a) and (b) of this section are met (including deduction of 
the full amount of CAIR SO2 allowances required), the 
permitting authority will issue a notification to the CAIR designated 
representative of the CAIR SO2 opt-in unit of the acceptance 
of the withdrawal of the CAIR SO2 opt-in unit as of midnight 
on December 31 of the calendar year for which the withdrawal was 
requested.
    (2) If the requirements for withdrawal under paragraphs (a) and (b) 
of this section are not met, the permitting authority will issue a 
notification to the CAIR designated representative of the CAIR 
SO2 opt-in unit that the CAIR SO2 opt-in unit's 
request to withdraw is denied. Such CAIR SO2 opt-in unit 
shall continue to be a CAIR SO2 opt-in unit.
    (d) Permit amendment. After the permitting authority issues a 
notification under paragraph (c)(1) of this section that the 
requirements for withdrawal have been met, the permitting authority will 
revise the CAIR permit covering the CAIR SO2 opt-in unit to 
terminate the CAIR opt-in permit for such unit as of the effective date 
specified under paragraph (c)(1) of this section. The unit shall 
continue to be a CAIR SO2 opt-in unit until the effective 
date of the termination and shall comply with all requirements under the 
CAIR SO2 Trading Program concerning any control periods for 
which the unit is a CAIR SO2 opt-in unit, even if such 
requirements arise or must be complied with after the withdrawal takes 
effect.
    (e) Reapplication upon failure to meet conditions of withdrawal. If 
the permitting authority denies the CAIR SO2 opt-in unit's 
request to withdraw, the CAIR designated representative may submit 
another request to withdraw in accordance with paragraphs (a) and (b) of 
this section.
    (f) Ability to reapply to the CAIR SO2 Trading Program. Once a CAIR 
SO2 opt-in unit withdraws from the CAIR SO2 
Trading Program and its CAIR opt-in permit is terminated under this 
section, the CAIR designated representative may not submit another 
application for a CAIR opt-in permit under Sec. 97.283 for such CAIR 
SO2 opt-in unit before the date that is 4 years after the 
date on which the withdrawal became effective. Such new application for 
a CAIR opt-in permit will be treated as an initial application for a 
CAIR opt-in permit under Sec. 97.284.
    (g) Inability to withdraw. Notwithstanding paragraphs (a) through 
(f) of this section, a CAIR SO2 opt-in unit shall not be 
eligible to withdraw from the CAIR SO2 Trading Program if the 
CAIR designated representative of the CAIR SO2 opt-in unit 
requests, and the permitting authority issues a CAIR opt-in permit 
providing for, allocation to the CAIR SO2 opt-in unit of CAIR 
SO2 allowances under Sec. 97.288(c).



Sec. 97.287  Change in regulatory status.

    (a) Notification. If a CAIR SO2 opt-in unit becomes a 
CAIR SO2 unit under Sec. 97.204, then the CAIR designated 
representative shall notify in writing the permitting authority and the 
Administrator of such change in the CAIR SO2 opt-in unit's 
regulatory status, within 30 days of such change.
    (b) Permitting authority's and Administrator's actions. (1) If a 
CAIR SO2 opt-in unit becomes a CAIR SO2 unit under 
Sec. 97.204, the permitting authority will revise the CAIR 
SO2 opt-in unit's CAIR opt-in permit to meet the requirements 
of a CAIR permit under Sec. 97.223, and remove the CAIR opt-in permit 
provisions, as of the date on which the CAIR SO2 opt-in unit 
becomes a CAIR SO2 unit under Sec. 97.204.

[[Page 981]]

    (2)(i) The Administrator will deduct from the compliance account of 
the source that includes the CAIR SO2 opt-in unit that 
becomes a CAIR SO2 unit under Sec. 97.204, CAIR 
SO2 allowances equal in amount to and allocated for the same 
or a prior control period as:
    (A) Any CAIR SO2 allowances allocated to the CAIR 
SO2 opt-in unit under Sec. 97.288 for any control period 
after the date on which the CAIR SO2 opt-in unit becomes a 
CAIR SO2 unit under Sec. 97.204; and
    (B) If the date on which the CAIR SO2 opt-in unit becomes 
a CAIR SO2 unit under Sec. 97.204 is not December 31, the 
CAIR SO2 allowances allocated to the CAIR SO2 opt-
in unit under Sec. 97.288 for the control period that includes the date 
on which the CAIR SO2 opt-in unit becomes a CAIR 
SO2 unit under Sec. 97.204, multiplied by the ratio of the 
number of days, in the control period, starting with the date on which 
the CAIR SO2 opt-in unit becomes a CAIR SO2 unit 
under Sec. 97.204 divided by the total number of days in the control 
period and rounded to the nearest whole allowance as appropriate.
    (ii) The CAIR designated representative shall ensure that the 
compliance account of the source that includes the CAIR SO2 
opt-in unit that becomes a CAIR SO2 unit under Sec. 97.204 
contains the CAIR SO2 allowances 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-in 

units.

    (a) Timing requirements. (1) When the CAIR opt-in permit is issued 
under Sec. 97.284(e), the permitting authority will allocate CAIR 
SO2 allowances to the CAIR SO2 opt-in unit, and 
submit to the Administrator the allocation for the control period in 
which a CAIR SO2 opt-in unit enters the CAIR 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 the 
control period in which a CAIR SO2 opt-in unit enters the 
CAIR SO2 Trading Program under Sec. 97.284(g) and October 31 
of each year thereafter, the permitting authority will allocate CAIR 
SO2 allowances to the CAIR SO2 opt-in unit, and 
submit to the Administrator the allocation for the control period that 
includes such submission deadline and in which the unit is a CAIR 
SO2 opt-in unit, in accordance with paragraph (b) or (c) of 
this section.
    (b) Calculation of allocation. For each control period for which a 
CAIR SO2 opt-in unit is to be allocated CAIR SO2 
allowances, the permitting authority will allocate in accordance with 
the following procedures, if provided in a State implementation plan 
revision submitted in accordance with Sec. 51.124(r)(1), (2), or (3) of 
this chapter and approved by the Administrator:
    (1) The heat input (in mmBtu) used for calculating the CAIR 
SO2 allowance allocation will be the lesser of:
    (i) The CAIR SO2 opt-in unit's baseline heat input 
determined under Sec. 97.284(c); or
    (ii) The CAIR SO2 opt-in unit's heat input, as determined 
in accordance with subpart HHH of this part, for the immediately prior 
control period, except when the allocation is being calculated for the 
control period in which the CAIR SO2 opt-in unit enters the 
CAIR SO2 Trading Program under Sec. 97.284(g).
    (2) The SO2 emission rate (in lb/mmBtu) used for 
calculating CAIR SO2 allowance allocations will be the lesser 
of:
    (i) The CAIR SO2 opt-in unit's baseline SO2 
emissions rate (in lb/mmBtu) determined under Sec. 97.284(d) and 
multiplied by 70 percent; or
    (ii) The most stringent State or Federal SO2 emissions 
limitation applicable to the CAIR SO2 opt-in unit at any time 
during the control period for which CAIR SO2 allowances are 
to be allocated.
    (3) The permitting authority will allocate CAIR SO2 
allowances to the CAIR SO2 opt-in unit with a tonnage 
equivalent equal to, or less than by the smallest possible amount, the 
heat input under paragraph (b)(1) of this section, multiplied by the 
SO2 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 CAIR 
designated

[[Page 982]]

representative requests, and the permitting authority issues a CAIR opt-
in permit (based on a demonstration of the intent to repower stated 
under Sec. 97.283(a)(5)) providing for, allocation to a CAIR 
SO2 opt-in unit of CAIR SO2 allowances under this 
paragraph (subject to the conditions in Sec. Sec. 97.284(h) and 
97.286(g)), the permitting authority will allocate to the CAIR 
SO2 opt-in unit as follows, if provided in a State 
implementation plan revision submitted 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 the CAIR 
SO2 opt-in unit is to be allocated CAIR SO2 
allowances,
    (i) The heat input (in mmBtu) used for calculating CAIR 
SO2 allowance allocations will be determined as described in 
paragraph (b)(1) of this section.
    (ii) The SO2 emission rate (in lb/mmBtu) used for 
calculating CAIR SO2 allowance allocations will be the lesser 
of:
    (A) The CAIR SO2 opt-in unit's baseline SO2 
emissions rate (in lb/mmBtu) determined under Sec. 97.284(d); or
    (B) The most stringent State or Federal SO2 emissions 
limitation applicable to the CAIR SO2 opt-in unit at any time 
during the control period in which the CAIR SO2 opt-in unit 
enters the CAIR SO2 Trading Program under Sec. 97.284(g).
    (iii) The permitting authority will allocate CAIR SO2 
allowances to the CAIR SO2 opt-in unit with a tonnage 
equivalent equal to, or less than by the smallest possible amount, the 
heat input under paragraph (c)(1)(i) of this section, multiplied by the 
SO2 emission rate under paragraph (c)(1)(ii) of this section, 
and divided by 2,000 lb/ton.
    (2) For each control period in 2015 and thereafter for which the 
CAIR SO2 opt-in unit is to be allocated CAIR SO2 
allowances,
    (i) The heat input (in mmBtu) used for calculating the CAIR 
SO2 allowance allocations will be determined as described in 
paragraph (b)(1) of this section.
    (ii) The SO2 emission rate (in lb/mmBtu) used for 
calculating the CAIR SO2 allowance allocation will be the 
lesser of:
    (A) The CAIR SO2 opt-in unit's baseline SO2 
emissions rate (in lb/mmBtu) determined under Sec. 97.284(d) multiplied 
by 10 percent; or
    (B) The most stringent State or Federal SO2 emissions 
limitation applicable to the CAIR SO2 opt-in unit at any time 
during the control period for which CAIR SO2 allowances are 
to be allocated.
    (iii) The permitting authority will allocate CAIR SO2 
allowances to the CAIR SO2 opt-in unit with a tonnage 
equivalent equal to, or less than by the smallest possible amount, the 
heat input under paragraph (c)(2)(i) of this section, multiplied by the 
SO2 emission rate under paragraph (c)(2)(ii) of this section, 
and divided by 2,000 lb/ton.
    (d) Recordation. If provided in a State implementation plan revision 
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 of the 
source that includes the CAIR SO2 opt-in unit, the CAIR 
SO2 allowances allocated 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 CAIR 
SO2 opt-in unit enters the CAIR SO2 Trading 
Program under Sec. 97.284(g) and December 1 of each year thereafter, 
the Administrator will record, in the compliance account of the source 
that includes the CAIR SO2 opt-in unit, the CAIR 
SO2 allowances allocated by the permitting authority to the 
CAIR SO2 opt-in unit under paragraph (a)(2) of this section.



 Sec. Appendix A to Subpart III of Part 97--States With Approved State 

  Implementation Plan Revisions Concerning CAIR SO2 Opt-In 

                                  Units

    1. The following States have State Implementation Plan revisions 
under Sec. 51.124(r) of this chapter approved by the Administrator and 
establishing procedures providing for CAIR SO2 opt-in units 
under subpart III of this part and allocation of CAIR SO2 
allowances to such units under Sec. 97.288(b):
    Indiana
     North Carolina
     Ohio

[[Page 983]]

     South Carolina
     Tennessee
    2. The following States have State Implementation Plan revisions 
under Sec. 51.124(r) of this chapter approved by the Administrator and 
establishing procedures providing for CAIR SO2 opt-in units 
under subpart III of this part and allocation of CAIR SO2 
allowances to such units under Sec. 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 FR 59487, Oct. 22, 
2007; 73 FR 6041, Feb. 1, 2008]



  Subpart AAAA_CAIR NOX Ozone Season Trading Program General Provisions



Sec. 97.301  Purpose.

    This subpart and subparts BBBB through IIII set forth the general 
provisions and the designated representative, permitting, allowance, 
monitoring, and opt-in provisions for the Federal Clean Air Interstate 
Rule (CAIR) NOX Ozone Season Trading Program, under section 
110 of the Clean Air Act and Sec. 52.35 of this chapter, as a means of 
mitigating interstate transport of ozone and nitrogen oxides.



Sec. 97.302  Definitions.

    The terms used in this subpart and subparts BBBB through IIII shall 
have the meanings set forth in this section as follows:
    Account number means the identification number given by the 
Administrator to each CAIR NOX Ozone Season Allowance 
Tracking System account.
    Acid Rain emissions limitation means a limitation on emissions of 
sulfur dioxide or nitrogen oxides under the Acid Rain Program.
    Acid Rain Program means a multi-state sulfur dioxide and nitrogen 
oxides air pollution control and emission reduction program established 
by the Administrator under title IV of the CAA and parts 72 through 78 
of this chapter.
    Administrator means the Administrator of the United States 
Environmental Protection Agency or the Administrator's duly authorized 
representative.
    Allocate or allocation means, with regard to CAIR NOX 
Ozone Season allowances, the determination by a permitting authority or 
the Administrator of the amount of such CAIR NOX Ozone Season 
allowances to be initially credited to a CAIR NOX Ozone 
Season unit, a new unit set-aside, or other entity.
    Allowance transfer deadline means, for a control period, midnight of 
November 30 (if it is a business day), or midnight of the first business 
day thereafter (if November 30 is not a business day), immediately 
following the control period and is the deadline by which a CAIR 
NOX Ozone Season allowance transfer must be submitted for 
recordation in a CAIR NOX Ozone Season source's compliance 
account in order to be used to meet the source's CAIR NOX 
Ozone Season emissions limitation for such control period in accordance 
with Sec. 97.354.
    Alternate CAIR designated representative means, for a CAIR 
NOX Ozone Season source and each CAIR NOX Ozone 
Season unit at the source, the natural person who is authorized by the 
owners and operators of the source and all such units at the source, in 
accordance with subparts BBBB and IIII of this part, to act on behalf of 
the CAIR designated representative in matters pertaining to the CAIR 
NOX Ozone Season Trading Program. If the CAIR NOX 
Ozone Season source is also a CAIR NOX source, then this 
natural person shall be the same person as the alternate CAIR designated 
representative under the CAIR NOX Annual Trading Program. If 
the CAIR NOX Ozone Season source is also a CAIR 
SO2 source, then this natural person shall be the same person 
as the alternate CAIR designated representative under the CAIR 
SO2 Trading Program. If the CAIR NOX Ozone Season 
source is also subject to the Acid Rain Program, then this natural 
person shall be the same person as the alternate designated 
representative under the Acid Rain Program. If the CAIR NOX 
Ozone Season source is also subject to the Hg Budget Trading Program, 
then this natural person shall be the same person as the alternate Hg 
designated representative under the Hg Budget Trading Program.

[[Page 984]]

    Automated data acquisition and handling system or DAHS means that 
component of the continuous emission monitoring system, or other 
emissions monitoring system approved for use under subpart HHHH of this 
part, designed to interpret and convert individual output signals from 
pollutant concentration monitors, flow monitors, diluent gas monitors, 
and other component parts of the monitoring system to produce a 
continuous record of the measured parameters in the measurement units 
required by subpart HHHH of this part.
    Biomass means--
    (1) Any organic material grown for the purpose of being converted to 
energy;
    (2) Any organic byproduct of agriculture that can be converted into 
energy; or
    (3) Any material that can be converted into energy and is 
nonmerchantable for other purposes, that is segregated from other 
nonmerchantable material, and that is;
    (i) A forest-related organic resource, including mill residues, 
precommercial thinnings, slash, brush, or byproduct from conversion 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-fired combustion 
device used to produce heat and to transfer heat to recirculating water, 
steam, or other medium.
    Bottoming-cycle cogeneration unit means a cogeneration unit in which 
the energy input to the unit is first used to produce useful thermal 
energy and at least some of the reject heat from the useful thermal 
energy application or process is then used for electricity production.
    CAIR authorized account representative means, with regard to a 
general account, a responsible natural person who is authorized, in 
accordance with subparts BBBB, FFFF, and IIII of this part, to transfer 
and otherwise dispose of CAIR NOX Ozone Season allowances 
held in the general account and, with regard to a compliance account, 
the CAIR designated representative of the source.
    CAIR designated representative means, for a CAIR NOX 
Ozone Season source and each CAIR NOX Ozone Season unit at 
the source, the natural person who is authorized by the owners and 
operators of the source and all such units at the source, in accordance 
with subparts BBBB and IIII of this part, to represent and legally bind 
each owner and operator in matters pertaining to the CAIR NOX 
Ozone Season Trading Program. If the CAIR NOX Ozone Season 
source is also a CAIR NOX source, then this natural person 
shall be the same person as the CAIR designated representative under the 
CAIR NOX Annual Trading Program. If the CAIR NOX 
Ozone Season source is also a CAIR SO2 source, then this 
natural person shall be the same person as the CAIR designated 
representative under the CAIR SO2 Trading Program. If the 
CAIR NOX Ozone Season source is also subject to the Acid Rain 
Program, then this natural person shall be the same person as the 
designated representative under the Acid Rain Program. If the CAIR 
NOX Ozone Season source is also subject to the Hg Budget 
Trading Program, then this natural person shall be the same person as 
the Hg designated representative under the Hg Budget Trading Program.
    CAIR NOX Annual Trading Program means a multi-state nitrogen oxides 
air pollution control and emission reduction program established by the 
Administrator in accordance with subparts AA through II of this part and 
Sec. Sec. 51.123(p) and 52.35 of this chapter or approved and 
administered by the Administrator in accordance with subparts AA through 
II of part 96 of this chapter and Sec. 51.123(o)(1) or (2) of this 
chapter, as a means of mitigating interstate transport of fine 
particulates and nitrogen oxides.
    CAIR NOX Ozone Season allowance means a limited authorization issued 
by a permitting authority or the Administrator under subpart EEEE of 
this part, Sec. 97.388, or provisions of a State implementation plan 
that are approved under Sec. 51.123(aa)(1) or (2) (and (bb)(1)), 
(bb)(2), (dd), or (ee) of this chapter, to emit one ton of nitrogen

[[Page 985]]

oxides during a control period of the specified calendar year for which 
the authorization is allocated or of any calendar year thereafter under 
the CAIR NOX Ozone Season Trading Program or a limited 
authorization issued by a permitting authority for a control period 
during 2003 through 2008 under the NOX Budget Trading Program 
in accordance with Sec. 51.121(p) of this chapter to emit one ton of 
nitrogen oxides during a control period, provided that the provision in 
Sec. 51.121(b)(2)(ii)(E) of this chapter shall not be used in applying 
this definition and the limited authorization shall not have been used 
to meet the allowance-holding requirement under the NOX 
Budget Trading Program. An authorization to emit nitrogen oxides that is 
not issued under subpart EEEE of this part, Sec. 97.388, or provisions 
of a State implementation plan that are approved under Sec. 
51.123(aa)(1) or (2) (and (bb)(1)), (bb)(2), (dd), or (ee) of this 
chapter or under the NOX Budget Trading Program as described 
in the prior sentence shall not be a CAIR NOX Ozone Season 
allowance.
    CAIR NOX Ozone Season allowance deduction or deduct CAIR NOX Ozone 
Season allowances means the permanent withdrawal of CAIR NOX 
Ozone Season allowances by the Administrator from a compliance account, 
e.g., in order to account for a specified number of tons of total 
nitrogen oxides emissions from all CAIR NOX Ozone Season 
units at a CAIR NOX Ozone Season source for a control period, 
determined in accordance with subpart HHHH of this part, or to account 
for excess emissions.
    CAIR NOX Ozone Season Allowance Tracking System means the system by 
which the Administrator records allocations, deductions, and transfers 
of CAIR NOX Ozone Season allowances under the CAIR 
NOX Ozone Season Trading Program. Such allowances will be 
allocated, held, deducted, or transferred only as whole allowances.
    CAIR NOX Ozone Season Allowance Tracking System account means an 
account in the CAIR NOX Ozone Season Allowance Tracking 
System established by the Administrator for purposes of recording the 
allocation, holding, transferring, or deducting of CAIR NOX 
Ozone Season allowances.
    CAIR NOX Ozone Season allowances held or hold CAIR NOX 
Ozone Season allowances means the CAIR NOX Ozone Season 
allowances recorded by the Administrator, or submitted to the 
Administrator for recordation, in accordance with subparts FFFF, GGGG, 
and IIII of this part, in a CAIR NOX Ozone Season Allowance 
Tracking System account.
    CAIR NOX Ozone Season emissions limitation means, for a CAIR 
NOX Ozone Season source, the tonnage equivalent, in 
NOX emissions in a control period, of the CAIR NOX 
Ozone Season allowances available for deduction for the source under 
Sec. 97.354(a) and (b) for the control period.
    CAIR NOX Ozone Season source means a source that includes one or 
more CAIR NOX Ozone Season units.
    CAIR NOX Ozone Season Trading Program means a multi-state nitrogen 
oxides air pollution control and emission reduction program established 
by the Administrator in accordance with subparts AAAA through IIII of 
part 96 of this part and Sec. Sec. 51.123(ee) and 52.35 of this chapter 
or approved and administered by the Administrator in accordance with 
under 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 of mitigating 
interstate transport of ozone and nitrogen oxides.
    CAIR NOX Ozone Season unit means a unit that is subject to the CAIR 
NOX Ozone Season Trading Program under Sec. 97.304 and, 
except for purposes of Sec. 97.305 and subpart EEEE of this part, a 
CAIR NOX Ozone Season opt-in unit under subpart IIII of this 
part.
    CAIR NOX source means a source that is subject to the CAIR 
NOX Annual Trading Program.
    CAIR permit means the legally binding and federally enforceable 
written document, or portion of such document, issued by the permitting 
authority under subpart CCCC of this part, including any permit 
revisions, specifying the CAIR NOX Ozone Season Trading 
Program requirements applicable to a CAIR NOX Ozone Season

[[Page 986]]

source, to each CAIR NOX Ozone Season unit at the source, and 
to the owners and operators and the CAIR designated representative of 
the source and each such unit.
    CAIR SO2 source means a source that is subject to the CAIR 
SO2 Trading Program.
    CAIR SO2 Trading Program means a multi-state sulfur dioxide air 
pollution control and emission reduction program established by the 
Administrator in accordance with subparts AAA through III of this part 
and Sec. Sec. 51.124(r) and 52.36 of this chapter or approved and 
administered by the Administrator in accordance with subparts AAA 
through III of part 96 of this chapter and Sec. 51.124(o)(1) or (2) of 
this chapter, as a means of mitigating interstate transport of fine 
particulates 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 business function 
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 or 
the proprietor respectively; or
    (3) For a local government entity or State, Federal, or other public 
agency, a principal executive officer or ranking elected official.
    Clean Air Act or CAA means the Clean Air Act, 42 U.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, or chemical 
processing of coal.
    Coal-fired means:
    (1) Except for purposes of subpart EEEE of this part, combusting any 
amount of coal or coal-derived fuel, alone or in combination with any 
amount of any other fuel, during any year; or
    (2) For purposes of subpart EEEE of this part, combusting any amount 
of coal or coal-derived fuel, alone or in combination with any amount of 
any other fuel, during a specified year.
    Cogeneration unit means a stationary, fossil-fuel-fired boiler or 
stationary, fossil-fuel-fired combustion turbine:
    (1) Having equipment used to produce electricity and useful thermal 
energy for industrial, commercial, heating, or cooling purposes through 
the sequential use of energy; and
    (2) Producing during the 12-month period starting on the date the 
unit first produces electricity and during any calendar year after the 
calendar 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 energy 
output; and
    (B) Useful power that, when added to one-half of useful thermal 
energy produced, is not less then 42.5 percent of total energy input, if 
useful thermal energy produced is 15 percent or more of total energy 
output, or not less than 45 percent of total energy input, if useful 
thermal energy produced is less than 15 percent of total energy output.
    (ii) For a bottoming-cycle cogeneration unit, useful power not 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 energy input 
from all fuel except biomass if the unit is a boiler.
    Combustion turbine means:
    (1) An enclosed device comprising a compressor, a combustor, and a 
turbine and in which the flue gas resulting from the combustion of fuel 
in the combustor passes through the turbine, rotating the turbine; and
    (2) If the enclosed device under paragraph (1) of this definition is 
combined cycle, any associated duct burner, heat recovery steam 
generator, and steam turbine.
    Commence commercial operation means, with regard to a unit:
    (1) To have begun to produce steam, gas, or other heated medium used 
to generate electricity for sale or use, including test generation, 
except as provided in Sec. 97.305 and Sec. 97.384(h).
    (i) For a unit that is a CAIR NOX Ozone Season unit under 
Sec. 97.304 on the later of November 15, 1990 or the date

[[Page 987]]

the unit commences commercial operation as defined in paragraph (1) of 
this 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 commercial operation of the 
unit, which shall continue to be treated as the same unit.
    (ii) For a unit that is a CAIR NOX Ozone Season unit 
under Sec. 97.304 on the later of November 15, 1990 or the date the 
unit commences commercial operation as defined in paragraph (1) of this 
definition and that is subsequently replaced by a unit at the same 
source (e.g., repowered), such date shall remain the replaced unit's 
date of commencement of commercial operation, and the replacement unit 
shall be treated as a separate unit with a separate date 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 as 
provided in Sec. 97.305, for a unit that is not a CAIR NOX 
Ozone Season unit under Sec. 97.304 on the later of November 15, 1990 
or the date the unit commences commercial operation as defined in 
paragraph (1) of this definition, the unit's date for commencement of 
commercial operation shall be the date on which the unit becomes a CAIR 
NOX Ozone Season unit under Sec. 97.304.
    (i) For a unit with a date for commencement of commercial operation 
as defined in paragraph (2) of this 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 commercial operation of the unit, which shall continue 
to be treated as the same unit.
    (ii) For a unit with a date for commencement of commercial operation 
as defined in paragraph (2) of this definition and that is subsequently 
replaced by a unit at the same source (e.g., repowered), such date shall 
remain the replaced unit's date of commencement of commercial operation, 
and the replacement unit shall be treated as a separate unit with a 
separate date for commencement of commercial operation as defined in 
paragraph (1), (2), or (3) of this definition as appropriate.
    (3) Notwithstanding paragraphs (1) and (2) of this definition, for a 
unit not serving a generator producing electricity for sale, the unit's 
date of commencement of operation shall also be the unit's date of 
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 combustion 
chamber, except as provided in Sec. 97.384(h).
    (i) For a unit that undergoes a physical change (other than 
replacement of the unit by a unit at the same source) after the date the 
unit commences operation as defined in paragraph (1) of this definition, 
such date shall remain the date of commencement of operation of the 
unit, which shall continue to be treated as the same unit.
    (ii) For a unit that is replaced by a unit at the same source (e.g., 
repowered) after the date the unit commences operation as defined in 
paragraph (1) of this definition, such date shall remain the replaced 
unit's date of commencement of operation, and the replacement unit shall 
be treated as a separate unit with a separate date for commencement of 
operation as defined in paragraph (1) or (2) of this definition as 
appropriate, except as provided in Sec. 97.384(h).
    (2) Notwithstanding paragraph (1) of this definition and solely for 
purposes of subpart HHHH of this part, for a unit that is not a CAIR 
NOX Ozone Season unit under Sec. 97.304(d) on the later of 
November 15, 1990 or the date the unit commences operation as defined in 
paragraph (1) of this definition and subsequently becomes such a CAIR 
NOX Ozone Season unit, the unit's date for commencement of 
operation shall be the date on which the unit becomes a CAIR 
NOX Ozone Season unit under Sec. 97.304(d).
    (i) For a unit with a date for commencement of operation as defined 
in paragraph (2) of this 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 
operation of the unit,

[[Page 988]]

which shall continue to be treated as the same unit.
    (ii) For a unit with a date for commencement of operation as defined 
in paragraph (2) of this definition and that is subsequently replaced by 
a unit at the same source (e.g., repowered), such date shall remain the 
replaced unit's date of commencement of operation, and the replacement 
unit shall be treated as a separate unit with a separate date for 
commencement of operation as defined in paragraph (1) or (2) of this 
definition as appropriate.
    Common stack means a single flue through which emissions from 2 or 
more units are exhausted.
    Compliance account means a CAIR NOX Ozone Season 
Allowance Tracking System account, established by the Administrator for 
a CAIR NOX Ozone Season source under subpart FFFF or IIII of 
this part, in which any CAIR NOX Ozone Season allowance 
allocations for the CAIR NOX Ozone Season units at the source 
are initially recorded and in which are held any CAIR NOX 
Ozone Season allowances available for use for a control period in order 
to meet the source's CAIR NOX Ozone Season emissions 
limitation in accordance with Sec. 97.354.
    Continuous emission monitoring system or CEMS means the equipment 
required under subpart HHHH of this part to sample, analyze, measure, 
and provide, by means of readings recorded at least once every 15 
minutes (using an automated data acquisition and handling system 
(DAHS)), a permanent record of nitrogen oxides emissions, stack gas 
volumetric flow rate, stack gas moisture content, and oxygen or carbon 
dioxide concentration (as applicable), in a manner consistent with part 
75 of this chapter. The following systems are the principal types of 
continuous emission monitoring systems required under subpart HHHH of 
this part:
    (1) A flow monitoring system, consisting of a stack flow rate 
monitor and an automated data acquisition and handling system and 
providing a permanent, continuous record of stack gas volumetric flow 
rate, in standard cubic feet per hour (scfh);
    (2) A nitrogen oxides concentration monitoring system, consisting of 
a NOX pollutant concentration monitor and an automated data 
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 pollutant 
concentration monitor, a diluent gas (CO2 or O2) 
monitor, and an automated data acquisition and handling system and 
providing a permanent, continuous record of NOX 
concentration, in parts per million (ppm), diluent gas concentration, in 
percent CO2 or O2, and NOX emission 
rate, in pounds per million British thermal units (lb/mmBtu);
    (4) A moisture monitoring system, as defined in Sec. 75.11(b)(2) of 
this chapter and providing a permanent, continuous record of the stack 
gas moisture content, in percent H2O;
    (5) A carbon dioxide monitoring system, consisting of a 
CO2 pollutant concentration monitor (or an oxygen monitor 
plus suitable mathematical equations from which the CO2 
concentration is derived) and an automated data acquisition and handling 
system and providing a permanent, continuous record of CO2 
emissions, in percent CO2; and
    (6) An oxygen monitoring system, consisting of an O2 
concentration monitor and an automated data acquisition and handling 
system and providing a permanent, continuous record of O2, in 
percent O2.
    Control period or ozone season means the period beginning May 1 of a 
calendar year, except as provided in Sec. 97.306(c)(2) and ending on 
September 30 of the same year, inclusive.
    Emissions means air pollutants exhausted from a unit or source into 
the atmosphere, as measured, recorded, and reported to the Administrator 
by the CAIR designated representative and as determined by the 
Administrator in accordance with subpart HHHH of this part.
    Excess emissions means any ton of nitrogen oxides emitted by the 
CAIR NOX Ozone Season units at a CAIR NOX Ozone 
Season source during a control period that exceeds the CAIR 
NOX Ozone Season emissions limitation for the source.
    Fossil fuel means natural gas, petroleum, coal, or any form of 
solid, liquid,

[[Page 989]]

or gaseous fuel derived from such material.
    Fossil-fuel-fired means, with regard to a unit, combusting any 
amount of fossil fuel in any calendar year.
    Fuel oil means any petroleum-based fuel (including diesel fuel or 
petroleum derivatives such as oil tar) and any recycled or blended 
petroleum products or petroleum by-products used as a fuel whether in a 
liquid, solid, or gaseous state.
    General account means a CAIR NOX Ozone Season Allowance 
Tracking System account, established under subpart FFFF of this part, 
that is not a compliance account.
    Generator means a device that produces electricity.
    Gross electrical output means, with regard to a cogeneration unit, 
electricity made available for use, including any such electricity used 
in the power production process (which process includes, but is not 
limited to, any on-site processing or treatment of 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 fuel feed 
rate into a combustion device (in lb of fuel/time), as measured, 
recorded, and reported to the Administrator by the CAIR designated 
representative and determined by the Administrator in accordance with 
subpart HHHH of this part and excluding 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 specific fuel, the 
amount of heat input attributed to the fuel (in mmBtu) divided by the 
unit operating time (in hr) during which the unit combusts the fuel.
    Hg Budget Trading Program means a multi-state Hg air pollution 
control and emission reduction program approved and administered by the 
Administrator in accordance subpart HHHH of part 60 of this chapter and 
Sec. 60.24(h)(6), or established by the Administrator under section 111 
of the Clean Air Act, as a means of reducing national Hg emissions.
    Life-of-the-unit, firm power contractual arrangement means a unit 
participation power sales agreement under which a utility or industrial 
customer reserves, or is entitled to receive, a specified amount or 
percentage of nameplate capacity and associated energy generated by any 
specified unit and pays its proportional amount of such 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, including 
contracts that permit an election for early termination; or
    (3) For a period no less than 25 years or 70 percent of the economic 
useful life of the unit determined as of the time the unit is built, 
with option rights to purchase or release some portion of the nameplate 
capacity and associated energy generated by the unit at the end of the 
period.
    Maximum design heat input means the maximum amount of fuel per hour 
(in Btu/hr) that a unit is capable of combusting on a steady state basis 
as of the initial installation of the unit as specified by the 
manufacturer of the unit.
    Monitoring system means any monitoring system that meets the 
requirements of subpart HHHH of this part, including a continuous 
emissions monitoring system, an alternative monitoring system, or an 
excepted monitoring system under part 75 of this chapter.
    Most stringent State or Federal NOX emissions limitation means, with 
regard to a unit, the lowest NOX emissions limitation (in 
terms of lb/mmBtu) that is applicable to the unit under State or Federal 
law, regardless of the averaging period to which the emissions 
limitation applies.
    Nameplate capacity means, starting from the initial installation of 
a generator, the maximum electrical generating output (in MWe) that the 
generator is capable of producing on a steady state basis and during 
continuous operation (when not restricted by seasonal or other 
deratings) as of such installation as specified by the manufacturer of 
the generator or, starting from the completion of any subsequent

[[Page 990]]

physical change in the generator resulting in an increase in the maximum 
electrical generating output (in MWe) that the generator is capable of 
producing on a steady state basis and during continuous operation (when 
not restricted by seasonal or other deratings), such increased maximum 
amount as of such completion as specified 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 heat input 
in a specified year and not qualifying as coal-fired.
    Operator means any person who operates, controls, or supervises a 
CAIR NOX Ozone Season unit or a CAIR NOX Ozone 
Season source 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 Ozone Season source or a 
CAIR NOX Ozone Season unit at a source, respectively:
    (i) Any holder of any portion of the legal or equitable title in a 
CAIR NOX Ozone Season unit at the source or the CAIR 
NOX Ozone Season unit;
    (ii) Any holder of a leasehold interest in a CAIR NOX 
Ozone Season unit at the source or the CAIR NOX Ozone Season 
unit; or
    (iii) Any purchaser of power from a CAIR NOX Ozone Season 
unit at the source or the CAIR NOX Ozone Season unit 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 an equitable interest 
through such lessor, whose rental payments are not based (either 
directly or indirectly) on the revenues or income from such CAIR 
NOX Ozone Season unit; or
    (2) With regard to any general account, any person who has an 
ownership interest with respect to the CAIR NOX Ozone Season 
allowances held in the general account and who is subject to the binding 
agreement for the CAIR authorized account representative to represent 
the person's ownership interest with respect to CAIR NOX 
Ozone Season allowances.
    Permitting authority means the State air pollution control agency, 
local agency, other State agency, or other agency authorized by the 
Administrator to issue or revise permits to meet the requirements of the 
CAIR NOX Ozone Season Trading Program or, if no such agency 
has been so authorized, the Administrator.
    Potential electrical output capacity means 33 percent of a unit(s 
maximum design heat input, divided by 3,413 Btu/kWh, divided by 1,000 
kWh/MWh, and multiplied by 8,760 hr/yr.
    Receive or receipt of means, when referring to the permitting 
authority or the Administrator, to come into possession of a document, 
information, or correspondence (whether sent in hard copy or by 
authorized electronic transmission), as indicated in an official log, or 
by a notation made on the document, information, or correspondence, by 
the permitting authority or the Administrator in the regular course of 
business.
    Recordation, record, or recorded means, with regard to CAIR 
NOX Ozone Season allowances, the movement of CAIR 
NOX Ozone Season allowances by the Administrator into or 
between CAIR NOX Ozone Season Allowance Tracking System 
accounts, for purposes of allocation, transfer, or deduction.
    Reference method means any direct test method of sampling and 
analyzing for an air pollutant as specified in Sec. 75.22 of this 
chapter.
    Replacement, replace, or replaced means, with regard to a unit, the 
demolishing of a unit, or the permanent shutdown and permanent disabling 
of a unit, and the construction of another unit (the replacement unit) 
to be used instead of the demolished or shutdown unit (the replaced 
unit).
    Repowered means, with regard to a unit, replacement of a coal-fired 
boiler with one of the following coal-fired technologies at the same 
source as the coal-fired boiler:
    (1) Atmospheric or pressurized fluidized bed combustion;
    (2) Integrated gasification combined cycle;
    (3) Magnetohydrodynamics;

[[Page 991]]

    (4) Direct and indirect coal-fired turbines;
    (5) Integrated gasification fuel cells; or
    (6) As determined by the Administrator in consultation with the 
Secretary of Energy, a derivative of one or more of the technologies 
under paragraphs (1) through (5) of this definition and any other coal-
fired technology capable of controlling multiple combustion emissions 
simultaneously with improved boiler or generation efficiency and with 
significantly greater waste reduction relative to the performance of 
technology in widespread commercial use as of January 1, 2005.
    Sequential use of energy means:
    (1) For a topping-cycle cogeneration unit, the use of reject heat 
from electricity production in a useful thermal energy application or 
process; or
    (2) For a bottoming-cycle cogeneration unit, the use of reject heat 
from useful thermal energy application or process in electricity 
production.
    Serial number means, for a CAIR NOX Ozone Season 
allowance, the unique identification number assigned to each CAIR 
NOX Ozone Season allowance by the Administrator.
    Solid waste incineration unit means a stationary, fossil-fuel-fired 
boiler or stationary, fossil-fuel-fired combustion turbine that is a 
``solid waste incineration unit'' as defined in section 129(g)(1) of the 
Clean Air Act.
    Source means all buildings, structures, or installations located in 
one or more contiguous or adjacent properties under common control 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 a single ``facility.''
    State means one of the States or the District of Columbia that is 
subject to the CAIR NOX Ozone Season Trading Program 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 accordance with 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 of dispatch, transmission, or mailing and not the 
date of receipt.
    Title V operating permit means a permit issued under title V of the 
Clean Air Act and part 70 or part 71 of this chapter.
    Title V operating permit regulations means the regulations that the 
Administrator has approved or issued as meeting the requirements of 
title V of the Clean Air Act and part 70 or 71 of this chapter.
    Ton means 2,000 pounds. For the purpose of determining compliance 
with the CAIR NOX Ozone Season emissions limitation, total 
tons of nitrogen oxides emissions for a control period shall be 
calculated as the sum of all recorded hourly emissions (or the mass 
equivalent of the recorded hourly emission rates) in accordance with 
subpart HHHH of this part, but with any remaining fraction of a ton 
equal to or greater than 0.50 tons deemed to equal one ton and any 
remaining fraction of a ton less than 0.50 tons deemed to equal zero 
tons.
    Topping-cycle cogeneration unit means a cogeneration unit in which 
the energy input to the unit is first used to produce useful power, 
including electricity, and at least some of the reject heat from the 
electricity production is then used to provide useful thermal energy.
    Total energy input means, with regard to a cogeneration unit, total 
energy of all forms supplied to the cogeneration unit, excluding energy 
produced by the cogeneration unit itself. Each form of energy supplied 
shall be measured by the lower heating value of that 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 cogeneration unit, the 
sum of useful power and useful thermal energy produced by the 
cogeneration unit.

[[Page 992]]

    Unit means a stationary, fossil-fuel-fired boiler or combustion 
turbine or other stationary, fossil-fuel-fired combustion device.
    Unit operating day means a calendar day in which a unit combusts any 
fuel.
    Unit operating hour or hour of unit operation means an hour 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 any such energy 
used in the power production process (which process includes, but is not 
limited to, any on-site processing or treatment of fuel combusted at the 
unit and any on-site emission controls).
    Useful thermal energy means, with regard to a cogeneration unit, 
thermal energy that is:
    (1) Made available to an industrial or commercial process (not a 
power production process), excluding any heat contained in condensate 
return or makeup water;
    (2) Used in a heating application (e.g., space heating or domestic 
hot water heating); or
    (3) Used in a space cooling application (i.e., thermal energy used 
by an absorption chiller).
    Utility power distribution system means the portion of an 
electricity grid owned or operated by a utility and dedicated to 
delivering 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 and 
subparts 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 NOX 
Ozone Season units, and any source that includes one or more such units 
shall be a CAIR NOX Ozone Season source, subject to the 
requirements of this subpart and subparts BBBB through HHHH of this 
part: any stationary, fossil-fuel-fired boiler or stationary, fossil-
fuel-fired combustion turbine serving at any time, since the later of 
November 15, 1990 or the start-up of the unit(s combustion chamber, a 
generator with nameplate 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 NOX 
Ozone Season unit begins to combust fossil fuel or to serve a generator 
with nameplate capacity of more than 25 MWe producing electricity for 
sale, the unit shall become a CAIR NOX Ozone Season unit as 
provided in paragraph (a)(1) of this section on the first date on which 
it both combusts fossil fuel and serves such generator.
    (b) The units in a State that meet the requirements set forth in 
paragraph (b)(1)(i), (b)(2)(i), or (b)(2)(ii) of this section shall not 
be CAIR NOX Ozone Season units:
    (1)(i) Any unit that is a CAIR NOX Ozone Season unit 
under paragraph (a)(1) or (2) of this section:
    (A) Qualifying as a cogeneration unit during the 12-month period 
starting on the date the unit first produces electricity and continuing 
to qualify as a cogeneration unit; and
    (B) Not serving at any time, since the later of November 15, 1990 or 
the start-up of the unit's combustion chamber, a generator with 
nameplate capacity of more than 25 MWe supplying in any calendar year 
more than one-third of the unit(s potential electric output capacity or 
219,000 MWh, whichever is greater, to any utility power distribution 
system for sale.

[[Page 993]]

    (ii) If a unit qualifies as a cogeneration unit during the 12-month 
period starting on the date the unit first produces electricity and 
meets the requirements of paragraphs (b)(1)(i) of this section for at 
least one calendar year, but subsequently no longer meets all such 
requirements, the unit shall become a CAIR NOX Ozone Season 
unit starting on the earlier of January 1 after the first calendar year 
during which the unit first no longer qualifies as a cogeneration unit 
or January 1 after the first calendar year during which 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 unit 
under paragraph (a)(1) or (2) of this section commencing operation 
before January 1, 1985:
    (A) Qualifying as a solid waste incineration unit; and
    (B) With an average annual fuel consumption of non-fossil fuel for 
1985-1987 exceeding 80 percent (on a Btu basis) and an average annual 
fuel consumption of non-fossil fuel for any 3 consecutive calendar years 
after 1990 exceeding 80 percent (on a Btu basis).
    (ii) Any unit that is a CAIR NOX Ozone Season unit under 
paragraph (a)(1) or (2) of this section commencing operation on or after 
January 1, 1985:
    (A) Qualifying as a solid waste incineration unit; and
    (B) With an average annual fuel consumption of non-fossil fuel for 
the first 3 calendar years of operation exceeding 80 percent (on a Btu 
basis) and an average annual fuel consumption of non-fossil fuel for any 
3 consecutive calendar years after 1990 exceeding 80 percent (on a Btu 
basis).
    (iii) If a unit qualifies as a solid waste incineration unit and 
meets the requirements of paragraph (b)(2)(i) or (ii) of this section 
for at least 3 consecutive calendar years, but subsequently no longer 
meets all such requirements, the unit shall become a CAIR NOX 
Ozone Season unit starting on the earlier of January 1 after the first 
calendar year during which the unit first no longer qualifies as a solid 
waste incineration unit or January 1 after the first 3 consecutive 
calendar years after 1990 for which the unit has an average annual fuel 
consumption of fossil fuel of 20 percent or more.
    (c) A certifying official of an owner or operator of any unit may 
petition the Administrator at any time for a determination concerning 
the applicability, under paragraphs (a) and (b) of this section, of the 
CAIR NOX Ozone Season Trading Program to the unit.
    (1) Petition content. The petition shall be in writing and include 
the identification of the unit and the relevant facts about the unit. 
The petition and any other documents provided to the Administrator in 
connection with the petition shall include the following certification 
statement, signed by the certifying official: ``I am authorized to make 
this submission on behalf of the owners and operators of the unit for 
which the submission is made. I certify under penalty of law that I have 
personally examined, and am familiar with, the statements and 
information submitted in this document and all its attachments. Based on 
my inquiry of those individuals with primary responsibility for 
obtaining the information, I certify that the statements and information 
are to the best of my knowledge and belief true, accurate, and complete. 
I am aware that there are significant penalties for submitting false 
statements and information or omitting required statements and 
information, including the possibility of fine or imprisonment.''
    (2) Submission. The petition and any other documents provided in 
connection with the petition shall be submitted to the Director of the 
Clean Air Markets Division (or its successor), U.S. Environmental 
Protection Agency, who will act on the petition as the Administrator's 
duly authorized representative.
    (3) Response. The Administrator will issue a written response to the 
petition and may request supplemental information relevant to such 
petition. The Administrator's determination concerning the 
applicability, under paragraphs (a) and (b) of this section, of the CAIR 
NOX Ozone Season Trading Program to the unit shall be binding 
on the permitting authority unless the petition or other information or 
documents provided in connection with the petition are found to have 
contained

[[Page 994]]

significant, relevant errors or omissions.
    (d) Notwithstanding paragraphs (a) and (b) of this section, if a 
State submits, and the Administrator approves, a State implementation 
plan revision in accordance with Sec. 51.123(ee)(1) of this chapter 
providing for the inclusion in the CAIR NOX Ozone Season 
Trading Program of all units that are not otherwise CAIR NOX 
Ozone Season units under paragraphs (a) and (b) of this section and that 
are NOX Budget units covered by the State's emissions trading 
program approved under Sec. 51.121(p) of this chapter, such units shall 
be CAIR NOX Ozone Season units as of the first date that they 
are NOX Budget units under the NOX Budget Trading 
Program under Sec. 51.121(p) of this chapter.



Sec. 97.305  Retired unit exemption.

    (a)(1) Any CAIR NOX Ozone Season unit that is permanently 
retired and is not a CAIR NOX Ozone Season opt-in unit under 
subpart IIII of this part shall be exempt from the CAIR NOX 
Ozone Season Trading Program, except for the provisions of this section, 
Sec. Sec. 97.302, 97.303, 97.304, 97.306(c)(4) through (7), 97.307, 
97.308, and subparts BBBB and EEEE through GGGG of this part.
    (2) The exemption under paragraph (a)(1) of this section shall 
become effective the day on which the CAIR NOX Ozone Season 
unit is permanently retired. Within 30 days of the unit's permanent 
retirement, the CAIR designated representative shall submit a statement 
to the permitting authority otherwise responsible for administering any 
CAIR permit for the unit and shall submit a copy of the statement to the 
Administrator. The statement shall state, in a format prescribed by the 
permitting authority, that the unit was permanently retired on a 
specific date and will comply with the requirements of paragraph (b) of 
this section.
    (3) After receipt of the statement under paragraph (a)(2) of this 
section, the permitting authority will amend any permit under subpart 
CCCC of this part covering the source at which the unit is located to 
add 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 on the date 
that the exemption takes effect.
    (2) The Administrator or the permitting authority will allocate CAIR 
NOX Ozone Season allowances under subpart EEEE of this 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 this 
section shall retain at the source that includes the unit, records 
demonstrating that the unit is permanently retired. The 5-year period 
for keeping records may be extended for cause, at any time before the 
end of the period, in writing by the permitting authority or the 
Administrator. The owners and operators bear the burden of proof that 
the unit is permanently retired.
    (4) The owners and operators and, to the extent applicable, the CAIR 
designated representative of a unit exempt under paragraph (a) of this 
section shall comply with the requirements of the CAIR NOX 
Ozone Season Trading Program concerning all periods for which 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 located at 
a source that is required, or but for this exemption would be required, 
to have a title V operating permit shall not resume operation unless the 
CAIR designated representative of the source submits a complete CAIR 
permit application under Sec. 97.322 for the unit not less than 18 
months (or such lesser time provided by the permitting authority) before 
the later of January 1, 2009 or the date on which the unit resumes 
operation.
    (6) On the earlier of the following dates, a unit exempt under 
paragraph (a) of this section shall lose its exemption:
    (i) The date on which the CAIR designated representative submits a 
CAIR permit application for the unit under paragraph (b)(5) of this 
section;

[[Page 995]]

    (ii) The date on which the CAIR designated representative is 
required under paragraph (b)(5) of this section to submit a CAIR permit 
application for the unit; or
    (iii) The date on which the unit resumes operation, if the CAIR 
designated representative is not required to submit a CAIR permit 
application for the unit.
    (7) For the purpose of applying monitoring, reporting, and 
recordkeeping requirements under subpart HHHH of this part, a unit that 
loses its exemption under paragraph (a) of this section shall be treated 
as a unit that commences commercial operation on the first date on which 
the unit resumes operation.



Sec. 97.306  Standard requirements.

    (a) Permit requirements. (1) The CAIR designated representative of 
each CAIR NOX Ozone Season source required to have a title V 
operating permit and each CAIR NOX Ozone Season unit required 
to have a title V operating permit at the source shall:
    (i) Submit to the permitting authority a complete CAIR permit 
application under Sec. 97.322 in accordance with the deadlines 
specified in Sec. 97.321; and
    (ii) Submit in a timely manner any supplemental information that the 
permitting authority determines is necessary in order to review a CAIR 
permit application and issue or deny a CAIR permit.
    (2) The owners and operators of each CAIR NOX Ozone 
Season source required to have a title V operating permit and each CAIR 
NOX Ozone Season unit required to have a title V operating 
permit at the source shall have a CAIR permit issued by the permitting 
authority under subpart CCCC of this part for the source and operate the 
source and the unit in compliance with such CAIR permit.
    (3) Except as provided in subpart IIII of this part, the owners and 
operators of a CAIR NOX Ozone Season source that is not 
otherwise required to have a title V operating permit and each CAIR 
NOX Ozone Season unit that is not otherwise required to have 
a title V operating permit are not required to submit a CAIR permit 
application, and to have a CAIR permit, under subpart CCCC of this part 
for such CAIR NOX Ozone Season source and such CAIR 
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 CAIR NOX 
Ozone Season unit at the source shall comply with the monitoring, 
reporting, and recordkeeping requirements of subpart HHHH of this part.
    (2) The emissions measurements recorded and reported in accordance 
with subpart HHHH of this part shall be used to determine compliance by 
each CAIR NOX Ozone Season source with the CAIR 
NOX 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 owners and 
operators of each CAIR NOX Ozone Season source and each CAIR 
NOX Ozone Season unit at the source shall hold, in the 
source's compliance account, CAIR NOX Ozone Season allowances 
available for compliance deductions for the control period under Sec. 
97.354(a) in an amount not less than the tons of total nitrogen oxides 
emissions for the control period from all CAIR NOX Ozone 
Season units at the source, as determined in accordance with subpart 
HHHH of this part.
    (2) A CAIR NOX Ozone Season unit shall be subject to the 
requirements under paragraph (c)(1) of this section for the control 
period starting on the later of May 1, 2009 or the deadline for meeting 
the unit's monitor certification requirements under Sec. 97.370(b)(1), 
(2), (3), or (7) and for each control period thereafter.
    (3) A CAIR NOX Ozone Season allowance shall not be 
deducted, for compliance with the requirements under paragraph (c)(1) of 
this section, for a control period in a calendar year before the year 
for which the CAIR NOX Ozone Season allowance was allocated.
    (4) CAIR NOX Ozone Season allowances shall be held in, 
deducted from, or transferred into or among CAIR NOX Ozone 
Season Allowance Tracking System accounts in accordance with subparts 
EEEE, FFFF, GGGG, and IIII of this part.

[[Page 996]]

    (5) A CAIR NOX Ozone Season allowance is a limited 
authorization to emit one ton of nitrogen oxides in accordance with the 
CAIR NOX Ozone Season Trading Program. No provision of the 
CAIR NOX Ozone Season Trading Program, the CAIR permit 
application, the CAIR permit, or an exemption under Sec. 97.305 and no 
provision of law shall be construed to limit the authority of the United 
States to terminate or limit such authorization.
    (6) A CAIR NOX Ozone Season allowance does not constitute 
a property right.
    (7) Upon recordation by the Administrator under subpart EEEE, FFFF, 
GGGG, or IIII of this part, every allocation, transfer, or deduction of 
a CAIR NOX Ozone Season allowance to or from a CAIR 
NOX Ozone Season source's compliance account is incorporated 
automatically in any CAIR permit of the source.
    (d) Excess emissions requirements. If a CAIR NOX Ozone 
Season source emits nitrogen oxides during any control period in excess 
of the CAIR NOX Ozone Season emissions limitation, then:
    (1) The owners and operators of the source and each CAIR 
NOX Ozone Season unit at the source shall surrender the CAIR 
NOX Ozone Season allowances required for deduction under 
Sec. 97.354(d)(1) and pay any fine, penalty, or assessment or 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 control 
period shall constitute a separate violation of this subpart, the Clean 
Air Act, and applicable State law.
    (e) Recordkeeping and reporting requirements. (1) Unless otherwise 
provided, the owners and operators of the CAIR NOX Ozone 
Season source and each CAIR NOX Ozone Season unit at the 
source shall keep on site at the source each of the following documents 
for a period of 5 years from the date the document is created. This 
period may be extended for cause, at any time before the end of 5 years, 
in writing by the permitting authority or the Administrator.
    (i) The certificate of representation under Sec. 97.313 for the 
CAIR designated representative for the source and each CAIR 
NOX Ozone Season unit at the source and all documents that 
demonstrate the truth of the statements in the certificate of 
representation; provided that the certificate and documents shall be 
retained on site at the source beyond such 5-year period until such 
documents are superseded because of the submission of a new certificate 
of representation under Sec. 97.313 changing the CAIR designated 
representative.
    (ii) All emissions monitoring information, in accordance with 
subpart HHHH of this part, provided that to the extent that subpart HHHH 
of this part provides for a 3-year period for recordkeeping, the 3-year 
period shall apply.
    (iii) Copies of all reports, compliance certifications, and other 
submissions and all records made or required under the CAIR 
NOX Ozone Season Trading Program.
    (iv) Copies of all documents used to complete a CAIR permit 
application and any other submission under the CAIR NOX Ozone 
Season Trading Program or to demonstrate compliance with the 
requirements of the CAIR NOX Ozone Season Trading Program.
    (2) The CAIR designated representative of a CAIR NOX 
Ozone Season source and each CAIR NOX Ozone Season unit at 
the source shall submit the reports required under the CAIR 
NOX Ozone Season Trading Program, including those under 
subpart HHHH of this part.
    (f) Liability. (1) Each CAIR NOX Ozone Season source and 
each CAIR NOX Ozone Season unit shall meet the requirements 
of the CAIR NOX Ozone Season Trading Program.
    (2) Any provision of the CAIR NOX Ozone Season Trading 
Program that applies to a CAIR NOX Ozone Season source or the 
CAIR designated representative of a CAIR NOX Ozone Season 
source shall also apply to the owners and operators of such source and 
of the CAIR NOX Ozone Season units at the source.
    (3) Any provision of the CAIR NOX Ozone Season Trading 
Program that applies to a CAIR NOX Ozone Season unit or the 
CAIR designated representative of a CAIR NOX Ozone Season 
unit

[[Page 997]]

shall also apply to the owners and operators of such unit.
    (g) Effect on other authorities. No provision of the CAIR 
NOX Ozone Season Trading Program, a CAIR permit application, 
a CAIR permit, or an exemption under Sec. 97.305 shall be construed as 
exempting or excluding the owners and operators, and the CAIR designated 
representative, of a CAIR NOX Ozone Season source or CAIR 
NOX Ozone Season unit from compliance with any other 
provision of the applicable, approved State implementation plan, a 
federally enforceable permit, or the Clean Air Act.



Sec. 97.307  Computation of time.

    (a) Unless otherwise stated, any time period scheduled, under the 
CAIR NOX Ozone Season Trading Program, to begin on the 
occurrence of an act or event shall begin on the day the act or event 
occurs.
    (b) Unless otherwise stated, any time period scheduled, under the 
CAIR NOX Ozone Season Trading Program, to begin before the 
occurrence of an act or event shall be computed so that the period ends 
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 on a 
weekend or a State or Federal holiday, the time period shall be extended 
to the next business day.



Sec. 97.308  Appeal procedures.

    The appeal procedures for decisions of the Administrator under the 
CAIR NOX Ozone Season Trading Program are set forth in part 
78 of this chapter.



 Sec. Appendix A to Subpart AAAA of Part 97--States With Approved State 
         Implementation Plan Revisions Concerning Applicability

    The following States have State Implementation Plan revisions under 
Sec. 51.123(ee)(1) of this chapter approved by the Administrator and 
providing for expansion of the applicability provisions to include all 
non-EGUs subject to the respective State's emission trading program 
approved under Sec. 51.121(p) of this chapter:
    Michigan

[65 FR 2727, Jan. 18, 2000, as amended at 72 FR 72262, Dec. 20, 2007]



 Subpart BBBB_CAIR Designated Representative for CAIR NOX Ozone Season 
                                 Sources



Sec. 97.310  Authorization and responsibilities of CAIR designated 

representative.

    (a) Except as provided under Sec. 97.311, each CAIR NOX 
Ozone Season source, including all CAIR NOX Ozone Season 
units at the source, shall have one and only one CAIR designated 
representative, with regard to all matters under the CAIR NOX 
Ozone Season Trading Program concerning the source or any CAIR 
NOX Ozone Season unit at the source.
    (b) The CAIR designated representative of the CAIR NOX 
Ozone Season source shall be selected by an agreement binding on the 
owners and operators of the source and all CAIR NOX Ozone 
Season units at the source and shall act in accordance with the 
certification statement in Sec. 97.313(a)(4)(iv).
    (c) Upon receipt by the Administrator of a complete certificate of 
representation under Sec. 97.313, the CAIR designated representative of 
the source shall represent and, by his or her representations, actions, 
inactions, or submissions, legally bind each owner and operator of the 
CAIR NOX Ozone Season source represented and each CAIR 
NOX Ozone Season unit at the source in all matters pertaining 
to the CAIR NOX Ozone Season Trading Program, notwithstanding 
any agreement between the CAIR designated representative and such owners 
and operators. The owners and operators shall be bound by any decision 
or order issued to the CAIR designated representative by the permitting 
authority, the Administrator, or a court regarding the source or unit.
    (d) No CAIR permit will be issued, no emissions data reports will be 
accepted, and no CAIR NOX Ozone Season Allowance Tracking 
System account will be established for a CAIR NOX Ozone 
Season unit at a source, until the Administrator has received a complete 
certificate of representation under Sec. 97.313 for a CAIR designated 
representative of the source and the CAIR NOX Ozone Season 
units at the source.

[[Page 998]]

    (e)(1) Each submission under the CAIR NOX Ozone Season 
Trading Program shall be submitted, signed, and certified by the CAIR 
designated representative for each CAIR NOX Ozone Season 
source on behalf of which the submission is made. Each such submission 
shall include the following certification statement by the CAIR 
designated representative: ``I am authorized to make this submission on 
behalf of the owners and operators of the source or units for which the 
submission is made. I certify under penalty of law that I have 
personally examined, and am familiar with, the statements and 
information submitted in this document and all its attachments. Based on 
my inquiry of those individuals with primary responsibility for 
obtaining the information, I certify that the statements and information 
are to the best of my knowledge and belief true, accurate, and complete. 
I am aware that there are significant penalties for submitting false 
statements and information or omitting required statements and 
information, including the possibility of fine or imprisonment.''
    (2) The permitting authority and the Administrator will accept or 
act on a submission made on behalf of owner or operators of a CAIR 
NOX Ozone Season source or a CAIR NOX Ozone Season 
unit only if the submission has been made, signed, and certified in 
accordance with paragraph (e)(1) of this section.



Sec. 97.311  Alternate CAIR designated representative.

    (a) A certificate of representation under Sec. 97.313 may designate 
one and only one alternate CAIR designated representative, who may act 
on behalf of the CAIR designated representative. The agreement by which 
the alternate CAIR designated representative is selected shall include a 
procedure for authorizing the alternate CAIR designated representative 
to act in lieu of the CAIR designated representative.
    (b) Upon receipt by the Administrator of a complete certificate of 
representation under Sec. 97.313, any representation, action, inaction, 
or submission by the alternate CAIR designated representative 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'' is used in subparts AAAA through IIII of 
this part, the term shall be construed to include the CAIR designated 
representative or any alternate CAIR designated representative.



Sec. 97.312  Changing CAIR designated representative and alternate CAIR 

designated representative; changes in owners and operators.

    (a) Changing CAIR designated representative. The CAIR designated 
representative may be changed at any time upon receipt by the 
Administrator of a superseding complete certificate of representation 
under Sec. 97.313. Notwithstanding any such change, all 
representations, actions, inactions, and submissions by the previous 
CAIR designated representative before the time and date when the 
Administrator receives the superseding certificate of representation 
shall be binding on the new CAIR designated representative and the 
owners and operators of the CAIR NOX Ozone Season source and 
the CAIR NOX Ozone Season units at the source.
    (b) Changing alternate CAIR designated representative. The alternate 
CAIR designated representative may be changed at any time upon receipt 
by the Administrator of a superseding complete certificate of 
representation under Sec. 97.313. Notwithstanding any such change, all 
representations, actions, inactions, and submissions by the previous 
alternate CAIR designated representative before the time and date when 
the Administrator receives the superseding certificate of representation 
shall be binding on the new alternate CAIR designated representative and 
the owners and operators of the CAIR NOX Ozone Season source 
and the CAIR NOX Ozone Season units at the source.
    (c) Changes in owners and operators. (1) In the event an owner or 
operator of a CAIR NOX Ozone Season source or a CAIR 
NOX Ozone Season unit is not included in the list of owners 
and operators in the certificate of representation

[[Page 999]]

under Sec. 97.313, such owner or operator shall be deemed to be subject 
to and bound by the certificate of representation, the representations, 
actions, inactions, and submissions of the CAIR designated 
representative and any alternate CAIR designated representative of the 
source or unit, and the decisions and orders of the permitting 
authority, the Administrator, or a court, as if the owner or operator 
were included in such list.
    (2) Within 30 days following any change in the owners and operators 
of a CAIR NOX Ozone Season source or a CAIR NOX 
Ozone Season unit, including the addition of a new owner or operator, 
the CAIR designated representative or any alternate CAIR designated 
representative shall submit a revision to the certificate of 
representation under Sec. 97.313 amending the list of owners and 
operators to include the change.



Sec. 97.313  Certificate of representation.

    (a) A complete certificate of representation for a CAIR designated 
representative or an alternate CAIR designated representative shall 
include the following elements in a format prescribed by the 
Administrator:
    (1) Identification of the CAIR NOX Ozone Season source, 
and each CAIR NOX Ozone Season unit at the source, for which 
the certificate of representation is submitted, including identification 
and nameplate capacity 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 designated 
representative and any alternate CAIR designated representative.
    (3) A list of the owners and operators of the CAIR NOX 
Ozone Season source and of each CAIR NOX Ozone Season unit at 
the source.
    (4) The following certification statements by the CAIR designated 
representative and any alternate CAIR designated representative--
    (i) ``I certify that I was selected as the CAIR designated 
representative or alternate CAIR designated representative, as 
applicable, by an agreement binding on the owners and operators of the 
source and each CAIR NOX Ozone Season unit at the source.''
    (ii) ``I certify that I have all the necessary authority to carry 
out my duties and responsibilities under the CAIR NOX Ozone 
Season Trading Program on behalf of the owners and operators of the 
source and of each CAIR NOX Ozone Season unit at the source 
and that each such owner and operator shall be fully bound by my 
representations, actions, inactions, or submissions.''
    (iii) ``I certify that the owners and operators of the source and of 
each CAIR NOX Ozone Season unit at the source shall be bound 
by any order issued to me by the Administrator, the permitting 
authority, or a court regarding the source or unit.''
    (iv) ``Where there are multiple holders of a legal or equitable 
title to, or a leasehold interest in, a CAIR NOX Ozone Season 
unit, or where a utility or industrial customer purchases power from a 
CAIR NOX Ozone Season unit under a life-of-the-unit, firm 
power contractual arrangement, I certify that: I have given a written 
notice of my selection as the `CAIR designated representative' or 
`alternate CAIR designated representative', as applicable, and of the 
agreement by which I was selected to each owner and operator of the 
source and of each CAIR NOX Ozone Season unit at the source; 
and CAIR NOX Ozone Season allowances and proceeds of 
transactions involving CAIR NOX Ozone Season allowances will 
be deemed 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 a 
different distribution of CAIR NOX Ozone Season allowances by 
contract, CAIR NOX Ozone Season allowances and proceeds of 
transactions involving CAIR NOX Ozone Season allowances will 
be deemed to be held or distributed in accordance with the contract.''
    (5) The signature of the CAIR designated representative and any 
alternate CAIR designated representative and the dates signed.

[[Page 1000]]

    (b) Unless otherwise required by the permitting authority or the 
Administrator, documents of agreement referred to in the certificate of 
representation shall not be submitted to the permitting authority or the 
Administrator. Neither the permitting authority nor the Administrator 
shall be under any obligation to review or evaluate the sufficiency of 
such documents, if submitted.



Sec. 97.314  Objections concerning CAIR designated representative.

    (a) Once a complete certificate of representation under Sec. 97.313 
has been submitted and received, the permitting authority and the 
Administrator will rely on the certificate of representation unless and 
until a superseding complete certificate of representation under Sec. 
97.313 is received by the Administrator.
    (b) Except as provided in Sec. 97.312(a) or (b), no objection or 
other communication submitted to the permitting authority or the 
Administrator concerning the authorization, or any representation, 
action, inaction, or submission, of the CAIR designated representative 
shall affect any representation, action, inaction, or submission of the 
CAIR designated representative or the finality of any decision or order 
by the permitting authority or the Administrator under the CAIR 
NOX Ozone Season Trading Program.
    (c) Neither the permitting authority nor the Administrator will 
adjudicate any private legal dispute concerning the authorization or any 
representation, action, inaction, or submission of any CAIR designated 
representative, including private legal disputes concerning the proceeds 
of CAIR NOX Ozone Season allowance transfers.



Sec. 97.315  Delegation by CAIR designated representative and alternate CAIR 

designated representative.

    (a) A CAIR designated representative may delegate, to one or more 
natural persons, his or her authority to make an electronic submission 
to the Administrator provided for or required under this part.
    (b) An alternate CAIR designated representative may delegate, to one 
or more natural persons, his or her authority to make an electronic 
submission to the Administrator provided for or required under this 
part.
    (c) In order to delegate authority to make an electronic submission 
to the Administrator in accordance with paragraph (a) or (b) of this 
section, the CAIR designated representative or alternate CAIR designated 
representative, as appropriate, must submit to the Administrator a 
notice of delegation, in a format prescribed by the Administrator, that 
includes the following elements:
    (1) The name, address, e-mail address, telephone number, and 
facsimile transmission number (if any) of such CAIR designated 
representative or alternate CAIR designated representative;
    (2) The name, address, e-mail address, telephone number, and 
facsimile 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 of 
electronic submissions under paragraph (a) or (b) of this section for 
which authority is delegated to him or her; and
    (4) The following certification statements by such CAIR designated 
representative or alternate CAIR designated representative:
    (i) ``I agree that any electronic submission to the Administrator 
that is by an agent identified in this notice of delegation and of a 
type listed for such agent in this notice of delegation and that is made 
when I am a CAIR designated representative or alternate CAIR designated 
representative, as appropriate, and before this notice of delegation is 
superseded by another notice of delegation under 40 CFR 97.315(d) shall 
be deemed to be an electronic submission by me.''
    (ii) ``Until this notice of delegation is superseded by another 
notice of delegation under 40 CFR 97.315(d), I agree to maintain an e-
mail account and to notify the Administrator immediately of any change 
in my e-mail address unless all delegation of authority by me under 40 
CFR 97.315 is terminated.''.
    (d) A notice of delegation submitted under paragraph (c) of this 
section shall be effective, with regard to the

[[Page 1001]]

CAIR designated representative or alternate CAIR designated 
representative identified in such notice, upon receipt of such notice by 
the Administrator and until receipt by the Administrator of a 
superseding notice of delegation submitted by such CAIR designated 
representative or alternate CAIR designated representative, as 
appropriate. The superseding notice of delegation may replace any 
previously identified agent, add a new agent, or eliminate entirely any 
delegation of authority.
    (e) Any electronic submission covered by the certification in 
paragraph (c)(4)(i) of this section and made in accordance with a notice 
of delegation effective under paragraph (d) of this section shall be 
deemed to be an electronic submission by the CAIR designated 
representative or alternate CAIR designated representative submitting 
such notice of delegation.



                          Subpart CCCC_Permits



Sec. 97.320  General CAIR NOX Ozone Season Trading Program permit 

requirements.

    (a) For each CAIR NOX Ozone Season source required to 
have a title V operating permit or required, under subpart IIII of this 
part, to have a title V operating permit or other federally enforceable 
permit, such permit shall include a CAIR permit administered by the 
permitting authority for the title V operating permit or the federally 
enforceable permit as applicable. The CAIR portion of the title V permit 
or other federally enforceable permit as applicable shall be 
administered in accordance with the permitting authority's title V 
operating permits regulations promulgated under part 70 or 71 of this 
chapter or the permitting authority's regulations 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 CAIR 
NOX Ozone Season source and the CAIR NOX Ozone 
Season units at the source covered by the CAIR permit, all applicable 
CAIR NOX Ozone Season Trading Program, CAIR NOX 
Annual Trading Program, and CAIR SO2 Trading Program 
requirements and shall be a complete and separable portion of the title 
V operating permit or other federally enforceable permit under paragraph 
(a) of this section.



Sec. 97.321  Submission of CAIR permit applications.

    (a) Duty to apply. The CAIR designated representative of any CAIR 
NOX Ozone Season source required to have a title V operating 
permit shall submit to the permitting authority a complete CAIR permit 
application under Sec. 97.322 for the source covering each CAIR 
NOX Ozone Season unit at the source at least 18 months (or 
such lesser time provided by the permitting authority) before the later 
of January 1, 2009 or the date on which the CAIR NOX Ozone 
Season unit commences commercial operation, except as provided in Sec. 
97.383(a).
    (b) Duty to reapply. For a CAIR NOX Ozone Season source 
required to have a title V operating permit, the CAIR designated 
representative shall submit a complete CAIR permit application under 
Sec. 97.322 for the source covering each CAIR NOX Ozone 
Season unit at the source to renew the CAIR permit in accordance with 
the permitting authority's title V operating permits regulations 
addressing permit renewal, except as provided in Sec. 97.383(b).



Sec. 97.322  Information requirements for CAIR permit applications.

    A complete CAIR permit application shall include the following 
elements concerning the CAIR NOX Ozone Season source for 
which the application is submitted, in a format prescribed by the 
permitting authority:
    (a) Identification of the CAIR NOX Ozone Season source;
    (b) Identification of each CAIR NOX Ozone Season unit at 
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 the 
permitting authority, all elements required for a complete CAIR permit 
application under Sec. 97.322.

[[Page 1002]]

    (b) Each CAIR permit is deemed to incorporate automatically the 
definitions of terms under Sec. 97.302 and, upon recordation by the 
Administrator under subpart EEEE, FFFF, GGGG, or IIII of this part, 
every allocation, transfer, or deduction of a CAIR NOX Ozone 
Season allowance to or from the compliance account of the CAIR 
NOX Ozone Season source covered by the permit.
    (c) The term of the CAIR permit will be set by the permitting 
authority, as necessary to facilitate coordination of the renewal of the 
CAIR permit with issuance, revision, or renewal of the CAIR 
NOX Ozone Season source's title V operating permit or other 
federally enforceable permit as applicable.



Sec. 97.324  CAIR permit revisions.

    Except as provided in Sec. 97.323(b), the permitting authority will 
revise the CAIR permit, as necessary, in accordance with the permitting 
authority's title V operating permits regulations or the permitting 
authority's regulations for other federally enforceable permits as 
applicable addressing permit revisions.

Subpart DDDD [Reserved]



        Subpart EEEE_CAIR NOX Ozone Season Allowance Allocations



Sec. 97.340  State trading budgets.

    (a) Except as provided in paragraph (b) of this section, the State 
trading budgets for annual allocations of CAIR NOX Ozone 
Season allowances for the control periods in 2009 through 2014 and in 
2015 and thereafter are respectively as follows:

------------------------------------------------------------------------
                                                           State trading
                                           State trading    budget for
                  State                     budget for       2015 and
                                             2009-2014      thereafter
                                              (tons)          (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 State 
implementation plan revision under Sec. 51.123(ee)(1) of this chapter 
providing for the inclusion in the CAIR NOX Ozone Season 
Trading Program of all units that are not otherwise CAIR NOX 
Ozone Season units under Sec. 97.304(a) and (b) and that are 
NOX Budget units covered by the State's emissions trading 
program approved under Sec. 51.121(p), the amount in the State trading 
budget for a control period in a calendar year will be the sum of the 
amount set forth for the State and for the year in paragraph (a) of this 
section and the amount of additional CAIR NOX Ozone Season 
allowance allocations issued under Sec. 51.123(ee)(1)(ii)(A) of this 
chapter for the year.



Sec. 97.341  Timing requirements for CAIR NOX Ozone Season allowance 

allocations.

    (a) The Administrator will determine by order the CAIR 
NOX Ozone Season allowance allocations, in accordance with 
Sec. 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, the 
Administrator will determine by order the CAIR NOX Ozone 
Season allowance allocations, in accordance with Sec. 97.342(a) and 
(b), for the control period in the fourth year after the year of the 
applicable deadline for determination under this paragraph.
    (c) By April 30, 2009 and April 30 of each year thereafter, the 
Administrator will determine by order the

[[Page 1003]]

CAIR NOX Ozone Season allowance allocations, in accordance 
with Sec. 97.342(a), (c), and (d), for the control period in the year 
of the applicable deadline for determination under this paragraph.
    (d) The Administrator will make available to the public each 
determination of CAIR NOX Ozone Season allowances under 
paragraph (a), (b), or (c) of this section and will provide an 
opportunity for submission of objections to the determination. 
Objections shall be limited to addressing whether the determination is 
in accordance with Sec. 97.342. Based on any such objections, the 
Administrator will adjust each determination to the extent necessary to 
ensure that it is in accordance with Sec. 97.342.



Sec. 97.342  CAIR NOX Ozone Season allowance allocations.

    (a)(1) The baseline heat input (in mmBtu) used with respect to CAIR 
NOX Ozone Season allowance allocations under paragraph (b) of 
this section for each CAIR NOX Ozone Season unit will be:
    (i) For units commencing operation before January 1, 2001 the 
average of the 3 highest amounts of the unit's adjusted control period 
heat input for 2000 through 2004, with the adjusted control period heat 
input for each year calculated as follows:
    (A) If the unit is coal-fired during the year, the unit's control 
period heat input for such year is multiplied by 100 percent;
    (B) If the unit is oil-fired during the year, the unit's control 
period 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) of 
this section, the unit's control period heat input for such year is 
multiplied by 40 percent.
    (ii) For units commencing operation on or after January 1, 2001 and 
operating each calendar year during a period of 5 or more consecutive 
calendar years, the average of the 3 highest amounts of the unit's total 
converted control period heat input over the first such 5 years.
    (2)(i) A unit's control period heat input, and a unit's status as 
coal-fired or oil-fired, for a calendar year under paragraph (a)(1)(i) 
of this section, and a unit's total tons of NOX emissions 
during a control period in a calendar year under paragraph (c)(3) of 
this section, will be determined in accordance with part 75 of this 
chapter, to the extent the unit was otherwise subject to the 
requirements of part 75 of this chapter for the year, or will be based 
on the best available data reported to the Administrator for the unit 
(in a format prescribed by the Administrator), to the extent the unit 
was not otherwise subject to the requirements of part 75 of this chapter 
for the year.
    (ii) A unit's converted control period heat input for a calendar 
year specified under paragraph (a)(1)(ii) of this section equals:
    (A) Except as provided in paragraph (a)(2)(ii)(B) or (C) of this 
section, the control period gross electrical output of the generator or 
generators served by the unit multiplied by 7,900 Btu/kWh, if the unit 
is coal-fired for the year, or 6,675 Btu/kWh, if the unit is not coal-
fired for the year, and divided by 1,000,000 Btu/mmBtu, provided that if 
a generator is served by 2 or more units, then the gross electrical 
output of the generator will be attributed to each unit in proportion to 
the unit's share of the total control period heat input of such units 
for the year;
    (B) For a unit that is a boiler and has equipment used to produce 
electricity and useful thermal energy for industrial, commercial, 
heating, or cooling purposes through the sequential use of energy, the 
total heat energy (in Btu) of the steam produced by the boiler during 
the 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 used 
to produce electricity and useful thermal energy for industrial, 
commercial, heating, or cooling purposes through the sequential use of 
energy, the control period gross electrical output of the enclosed 
device comprising the compressor, combustor, and turbine multiplied by 
3,413 Btu/kWh, plus the total heat energy (in Btu) of the steam produced 
by any associated heat recovery steam generator during the control 
period divided by 0.8, and with the sum divided by 1,000,000 Btu/mmBtu.

[[Page 1004]]

    (iii) Gross electrical output and total heat energy under paragraph 
(a)(2)(ii) of this section will be determined based on the best 
available data reported to the Administrator for the unit (in a format 
prescribed by the Administrator).
    (3) The Administrator will determine what data are the best 
available data under paragraph (a)(2) of this section by weighing the 
likelihood that data are accurate and reliable and giving greater weight 
to data submitted to a governmental entity in compliance with legal 
requirements or substantiated by an independent entity.
    (b)(1) For each control period in 2009 and thereafter, the 
Administrator will allocate to all CAIR NOX Ozone Season 
units in a State that have a baseline heat input (as determined under 
paragraph (a) of this section) a total amount of CAIR NOX 
Ozone Season allowances equal to 95 percent for a control period during 
2009 through 2014, and 97 percent for a control period during 2015 and 
thereafter, of the tons of NOX emissions in the applicable 
State trading budget under Sec. 97.340 (except as provided in 
paragraphs (d) and (e) of this section).
    (2) The Administrator will allocate CAIR NOX Ozone Season 
allowances to each CAIR NOX Ozone Season unit under paragraph 
(b)(1) of this section in an amount determined by multiplying the total 
amount of CAIR NOX Ozone Season allowances allocated under 
paragraph (b)(1) of this section by the ratio of the baseline heat input 
of such CAIR NOX Ozone Season unit to the total amount of 
baseline heat input of all such CAIR NOX Ozone Season units 
in the State and rounding to the nearest whole allowance as appropriate.
    (c) For each control period in 2009 and thereafter, the 
Administrator will allocate CAIR NOX Ozone Season allowances 
to CAIR NOX Ozone Season units in a State that are not 
allocated CAIR NOX Ozone Season allowances under paragraph 
(b) of this section because the units do not yet have a baseline heat 
input under paragraph (a) of this section or because the units have a 
baseline heat input but all CAIR NOX Ozone Season allowances 
available under paragraph (b) of this section for the control period are 
already allocated, in accordance with the following procedures:
    (1) The Administrator will establish a separate new unit set-aside 
for each control period. Each new unit set-aside will be allocated CAIR 
NOX Ozone Season allowances equal to 5 percent for a control 
period in 2009 through 2014, and 3 percent for a control period in 2015 
and thereafter, of the amount of tons of NOX emissions in the 
applicable State trading budget under Sec. 97.340.
    (2) The CAIR designated representative of such a CAIR NOX 
Ozone Season unit may submit to the Administrator a request, in a format 
specified by the Administrator, to be allocated CAIR NOX 
Ozone Season allowances, starting with the later of the control period 
in 2009 or the first control period after the control period in which 
the CAIR NOX Ozone Season unit commences commercial operation 
and until the first control period for which the unit is allocated CAIR 
NOX Ozone Season allowances under paragraph (b) of this 
section. A separate CAIR NOX Ozone Season allowance 
allocation request for each control period for which CAIR NOX 
Ozone Season allowances are sought must be submitted on or before 
February 1 before such control period and after the date on which the 
CAIR NOX Ozone Season unit commences commercial operation.
    (3) In a CAIR NOX Ozone Season allowance allocation 
request under paragraph (c)(2) of this section, the CAIR designated 
representative may request for a control period CAIR NOX 
Ozone Season allowances in an amount not exceeding the CAIR 
NOX Ozone Season unit(s total tons of NOX 
emissions during the control period immediately before such control 
period.
    (4) The Administrator will review each CAIR NOX Ozone 
Season allowance allocation request under paragraph (c)(2) of this 
section and will allocate CAIR NOX Ozone Season allowances 
for each control period pursuant to such request as follows:
    (i) The Administrator will accept an allowance allocation request 
only if the request meets, or is adjusted by the Administrator as 
necessary to meet, the requirements of paragraphs (c)(2) and (3) of this 
section.

[[Page 1005]]

    (ii) On or after February 1 before the control period, the 
Administrator will determine the sum of the CAIR NOX Ozone 
Season allowances requested (as adjusted under paragraph (c)(4)(i) of 
this section) 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 Ozone Season allowances 
in the new unit set-aside for the control period is greater than or 
equal to the sum under paragraph (c)(4)(ii) of this section, then the 
Administrator will allocate the amount of CAIR NOX Ozone 
Season allowances requested (as adjusted under paragraph (c)(4)(i) of 
this section) to each CAIR NOX Ozone Season unit covered by 
an allowance allocation request accepted under paragraph (c)(4)(i) of 
this section.
    (iv) If the amount of CAIR NOX Ozone Season allowances in 
the new unit set-aside for the control period is less than the sum under 
paragraph (c)(4)(ii) of this section, then the Administrator will 
allocate to each CAIR NOX Ozone Season unit covered by an 
allowance allocation request accepted under paragraph (c)(4)(i) of this 
section the amount of the CAIR NOX Ozone Season allowances 
requested (as adjusted under paragraph (c)(4)(i) of this section), 
multiplied by the amount of CAIR NOX Ozone Season allowances 
in the new unit set-aside for the control period, divided by the sum 
determined under paragraph (c)(4)(ii) of this section, and rounded to 
the nearest whole allowance as appropriate.
    (v) The Administrator will notify each CAIR designated 
representative that submitted an allowance allocation request of the 
amount of CAIR NOX Ozone Season allowances (if any) allocated 
for the control period to the CAIR NOX Ozone Season 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 CAIR NOX 
Ozone Season allowances remain in the new unit set-aside under paragraph 
(c) of this section for a State for the control period, the 
Administrator will allocate to each CAIR NOX Ozone Season 
unit that was allocated CAIR NOX Ozone Season allowances 
under paragraph (b) of this section in the State an amount of CAIR 
NOX Ozone Season allowances equal to the total amount of such 
remaining unallocated CAIR NOX Ozone Season allowances, 
multiplied by the unit's allocation under paragraph (b) of this section, 
divided by 95 percent for a control period during 2009 through 2014, and 
97 percent for a control period during 2015 and thereafter, of the 
amount of tons of NOX emissions in the applicable State 
trading budget under Sec. 97.340, and rounded to the nearest whole 
allowance as appropriate.
    (e) If the Administrator determines that CAIR NOX Ozone 
Season allowances were allocated under paragraphs (a) and (b) of this 
section, paragraphs (a) and (c) of this section, or paragraph (d) of 
this section for a control period and that the recipient of the 
allocation is not actually a CAIR NOX Ozone Season unit under 
Sec. 97.304 in such control period, then the Administrator will notify 
the CAIR designated representative and will act 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 Ozone Season 
allowances under Sec. 97.353.
    (2) If the Administrator already recorded such CAIR NOX 
Ozone Season allowances under Sec. 97.353 and if the Administrator 
makes such determinations before making deductions for the source that 
includes such recipient under Sec. 97.354(b) for the control period, 
then the Administrator will deduct from the account in which such CAIR 
NOX Ozone Season allowances were recorded under Sec. 97.353 
an amount of CAIR NOX Ozone Season allowances allocated for 
the same or a prior control period equal to the amount of such already 
recorded CAIR NOX Ozone Season allowances. The CAIR 
designated representative shall ensure that there are sufficient CAIR 
NOX Ozone Season allowances in such account for completion of 
the deduction.
    (3) If the Administrator already recorded such CAIR NOX 
Ozone Season allowances under Sec. 97.353 and if the Administrator 
makes such determinations after making deductions for the source that 
includes such recipient under Sec. 97.354(b) for the control period,

[[Page 1006]]

then the Administrator will apply paragraph (e)(1) or (2) of this 
section, as appropriate, to any subsequent control period for which CAIR 
NOX Ozone Season allowances were allocated to such recipient.
    (4) The Administrator will transfer the CAIR NOX Ozone 
Season allowances that are not recorded, or that are deducted, in 
accordance with paragraphs (e)(1), (2), and (3) of this section to a new 
unit set-aside for the State in which such recipient is located.



Sec. 97.343   Alternative of allocation of CAIR NOX Ozone Season allowances by 

permitting authority.

    (a) Notwithstanding Sec. Sec. 97.341, 97.342, and 97.353 if a State 
submits, and the Administrator approves, a State implementation plan 
revision in accordance with Sec. 51.123(ee)(2) of this chapter 
providing for allocation of CAIR NOX Ozone Season allowances 
by the permitting authority, then the permitting authority shall make 
such allocations in accordance with such approved State implementation 
plan revision, the Administrator will not make allocations under 
Sec. Sec. 97.341 and 97.342 for the CAIR NOX Ozone Season 
units in the State, and under Sec. 97.353, the Administrator will 
record allocations made under such approved State implementation plan 
revision instead of allocations under Sec. Sec. 97.341 and 97.342.
    (b) In implementing paragraph(a) of this section and Sec. Sec. 
97.341, 97.342, and 97.353, the Administrator will ensure that the total 
amount of CAIR NOX Ozone Season allowances allocated, under 
such provisions and under a State's State implementation plan revision 
approved in accordance with Sec. 51.123(ee)(2) of this chapter, for a 
control period for CAIR NOX Ozone Season sources in the State 
or for other entities specified by the permitting authority will not 
exceed the State's State trading budget for the year of the control 
period.



 Sec. Appendix A to Subpart EEEE of Part 97--States With Approved State 
          Implementation Plan Revisions Concerning Allocations

    The following States have State Implementation Plan revisions under 
Sec. 51.123(ee)(2) of this chapter approved by the Administrator and 
providing for allocation of CAIR NOX Ozone Season allowances 
by the permitting authority under Sec. 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; 72 FR 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 Season Allowance Tracking System



Sec. 97.350  [Reserved]



Sec. 97.351   Establishment of accounts.

    (a) Compliance accounts. Except as provided in Sec. 97.384(e), upon 
receipt of a complete certificate of representation under Sec. 97.313, 
the Administrator will establish a compliance account for the CAIR 
NOX Ozone Season source for which the certificate of 
representation was submitted, unless the source already has a compliance 
account.
    (b) General accounts--(1) Application for general account. (i) Any 
person may apply to open a general account for the purpose of holding 
and transferring CAIR NOX Ozone Season allowances. An 
application for a general account may designate one and only one CAIR 
authorized account representative and one and only one alternate CAIR 
authorized account representative who may act on behalf of the CAIR 
authorized account representative. The agreement by which the alternate 
CAIR authorized account representative is selected shall include a 
procedure for authorizing the alternate CAIR authorized account 
representative to act in lieu of the CAIR authorized account 
representative.
    (ii) A complete application for a general account shall be submitted 
to the Administrator and shall include the

[[Page 1007]]

following elements in a format prescribed by the Administrator:
    (A) Name, mailing address, e-mail address (if any), telephone 
number, and facsimile transmission number (if any) of the CAIR 
authorized account representative and any alternate CAIR authorized 
account representative;
    (B) Organization name and type of organization, if applicable;
    (C) A list of all persons subject to a binding agreement for the 
CAIR authorized account representative and any alternate CAIR authorized 
account representative to represent their ownership interest with 
respect to the CAIR NOX Ozone Season allowances held in the 
general account;
    (D) The following certification statement by the CAIR authorized 
account representative and any alternate CAIR authorized account 
representative: ``I certify that I was selected as the CAIR authorized 
account representative or the alternate CAIR authorized account 
representative, as applicable, by an agreement that is binding on all 
persons who have an ownership interest with respect to CAIR 
NOX Ozone Season allowances held in the general account. I 
certify that I have all the necessary authority to carry out my duties 
and responsibilities under the CAIR NOX Ozone Season Trading 
Program on behalf of such persons and that each such person shall be 
fully bound by my representations, actions, inactions, or submissions 
and by any order or decision issued to me by the Administrator or a 
court regarding the general account.''
    (E) The signature of the CAIR authorized account representative and 
any alternate CAIR authorized account representative and the dates 
signed.
    (iii) Unless otherwise required by the permitting authority or the 
Administrator, documents of agreement referred to in the application for 
a general account shall not be submitted to the permitting authority or 
the Administrator. Neither the permitting authority nor the 
Administrator shall be under any obligation to review or evaluate the 
sufficiency of such documents, if submitted.
    (2) Authorization of CAIR authorized account representative and 
alternate CAIR authorized account representative. (i) Upon receipt by 
the Administrator of a complete application for a general account under 
paragraph (b)(1) of this section:
    (A) The Administrator will establish a general account for the 
person or persons for whom the application is submitted.
    (B) The CAIR authorized account representative and any alternate 
CAIR authorized account representative for the general account shall 
represent and, by his or her representations, actions, inactions, or 
submissions, legally bind each person who has an ownership interest with 
respect to CAIR NOX Ozone Season allowances held in the 
general account in all matters pertaining to the CAIR NOX 
Ozone Season Trading Program, notwithstanding any agreement between the 
CAIR authorized account representative or any alternate CAIR authorized 
account representative and such person. Any such person shall be bound 
by any order or decision issued to the CAIR authorized account 
representative or any alternate CAIR authorized account representative 
by the Administrator or a court regarding the general account.
    (C) Any representation, action, inaction, or submission by any 
alternate CAIR authorized account representative shall be deemed to be a 
representation, action, inaction, or submission by the CAIR authorized 
account representative.
    (ii) Each submission concerning the general account shall be 
submitted, signed, and certified by the CAIR authorized account 
representative or any alternate CAIR authorized account representative 
for the persons having an ownership interest with respect to CAIR 
NOX Ozone Season allowances held in the general account. Each 
such submission shall include the following certification statement by 
the CAIR authorized account representative or any alternate CAIR 
authorized account representative: ``I am authorized to make this 
submission on behalf of the persons having an ownership interest with 
respect to the CAIR NOX Ozone Season allowances held in the 
general account. I certify under penalty of law that I have personally 
examined, and am familiar with, the statements and

[[Page 1008]]

information submitted in this document and all its attachments. Based on 
my inquiry of those individuals with primary responsibility for 
obtaining the information, I certify that the statements and information 
are to the best of my knowledge and belief true, accurate, and complete. 
I am aware that there are significant penalties for submitting false 
statements and information or omitting required statements and 
information, including the possibility of fine or imprisonment.''
    (iii) The Administrator will accept or act on a submission 
concerning the general account only if the submission has been made, 
signed, and certified in accordance with paragraph (b)(2)(ii) of this 
section.
    (3) Changing CAIR authorized account representative and alternate 
CAIR authorized account representative; changes in persons with 
ownership interest. (i) The CAIR authorized account representative for a 
general account may be changed at any time upon receipt by the 
Administrator of a superseding complete application for a general 
account under paragraph (b)(1) of this section. Notwithstanding any such 
change, all representations, actions, inactions, and submissions by the 
previous CAIR authorized account representative before the time and date 
when the Administrator receives the superseding application for a 
general account shall be binding on the new CAIR authorized account 
representative and the persons with an ownership interest with respect 
to the CAIR NOX Ozone Season allowances in the general 
account.
    (ii) The alternate CAIR authorized account representative for a 
general account may be changed at any time upon receipt by the 
Administrator of a superseding complete application for a general 
account under paragraph (b)(1) of this section. Notwithstanding any such 
change, all representations, actions, inactions, and submissions by the 
previous alternate CAIR authorized account representative before the 
time and date when the Administrator receives the superseding 
application for a general account shall be binding on the new alternate 
CAIR authorized account representative and the persons with an ownership 
interest with respect to the CAIR NOX Ozone Season allowances 
in the general account.
    (iii)(A) In the event a person having an ownership interest with 
respect to CAIR NOX Ozone Season allowances in the general 
account is not included in the list of such persons in the application 
for a general account, such person shall be deemed to be subject to and 
bound by the application for a general account, the representation, 
actions, inactions, and submissions of the CAIR authorized account 
representative and any alternate CAIR authorized account representative 
of the account, and the decisions and orders of the Administrator or a 
court, as if the person were included in such list.
    (B) Within 30 days following any change in the persons having an 
ownership interest with respect to CAIR NOX Ozone Season 
allowances in the general account, including the addition of a new 
person, the CAIR authorized account representative or any alternate CAIR 
authorized account representative shall submit a revision to the 
application for a general account amending the list of persons having an 
ownership interest with respect to the CAIR NOX Ozone Season 
allowances in the general account to include the change.
    (4) Objections concerning CAIR authorized account representative and 
alternate CAIR authorized account representative. (i) Once a complete 
application for a general account under paragraph (b)(1) of this section 
has been submitted and received, the Administrator will rely on the 
application unless and until a superseding 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)(3)(i) or (ii) of this 
section, no objection or other communication submitted to the 
Administrator concerning the authorization, or any representation, 
action, inaction, or submission of the CAIR authorized account 
representative or any alternate CAIR authorized account representative 
for a general account shall affect any representation, action, inaction, 
or submission of the CAIR authorized account representative or any 
alternate CAIR authorized account representative or the finality of any 
decision or

[[Page 1009]]

order by the Administrator under the CAIR NOX Ozone Season 
Trading Program.
    (iii) The Administrator will not adjudicate any private legal 
dispute concerning the authorization or any representation, action, 
inaction, or submission of the CAIR authorized account representative or 
any alternate CAIR authorized account representative for a general 
account, including private legal disputes concerning the proceeds of 
CAIR NOX Ozone Season allowance transfers.
    (5) Delegation by CAIR authorized account representative and 
alternate CAIR authorized account representative. (i) A CAIR authorized 
account representative may delegate, to one or more natural persons, his 
or her authority to make an electronic submission to the Administrator 
provided for or required under subparts FFFF and GGGG of this part.
    (ii) An alternate CAIR authorized account representative may 
delegate, to one or more natural persons, his or her authority to make 
an electronic submission to the Administrator provided for or required 
under subparts FFFF and GGGG of this part.
    (iii) In order to delegate authority to make an electronic 
submission to the Administrator in accordance with paragraph (b)(5)(i) 
or (ii) of this section, the CAIR authorized account representative or 
alternate CAIR authorized account representative, as appropriate, must 
submit to the Administrator a notice of delegation, in a format 
prescribed by the Administrator, that includes the following elements:
    (A) The name, address, e-mail address, telephone number, and 
facsimile transmission number (if any) of such CAIR authorized account 
representative 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 of 
electronic submissions under paragraph (b)(5)(i) or (ii) of this section 
for which authority is delegated to him or her;
    (D) The following certification statement by such CAIR authorized 
account representative or alternate CAIR authorized account 
representative: ``I agree that any electronic submission to the 
Administrator that is by an agent identified in this notice of 
delegation and of a type listed for such agent in this notice of 
delegation and that is made when I am a CAIR authorized account 
representative or alternate CAIR authorized representative, as 
appropriate, and before this notice of delegation is superseded by 
another notice of delegation under 40 CFR 97.351(b)(5)(iv) shall be 
deemed to be an electronic submission by me.''; and
    (E) The following certification statement by such CAIR authorized 
account representative or alternate CAIR authorized account 
representative: Until this notice of delegation is superseded by another 
notice of delegation under 40 CFR 97.351(b)(5)(iv), I agree to maintain 
an e-mail account and to notify the Administrator immediately of any 
change in my e-mail address unless all delegation of authority by me 
under 40 CFR 97.351(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 authorized 
account representative or alternate CAIR authorized account 
representative identified in such notice, upon receipt of such notice by 
the Administrator and until receipt by the Administrator of a 
superseding notice of delegation submitted by such CAIR authorized 
account representative or alternate CAIR authorized account 
representative, as appropriate. The superseding notice of delegation may 
replace any previously identified agent, add a new agent, or eliminate 
entirely any delegation of authority.
    (v) Any electronic submission covered by the certification in 
paragraph (b)(5)(iii)(D) of this section and made in accordance with a 
notice of delegation effective under paragraph (b)(5)(iv) of this 
section shall be deemed to be an electronic submission by the CAIR 
designated representative or alternate CAIR designated representative 
submitting such notice of delegation.

[[Page 1010]]

    (c) Account identification. The Administrator will assign a unique 
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 Season 
Allowance Tracking System account, all submissions to the Administrator 
pertaining to the account, including, but not limited to, submissions 
concerning the deduction or transfer of CAIR NOX Ozone Season 
allowances in the account, shall be made only by the CAIR authorized 
account representative for the account.



Sec. 97.353  Recordation of CAIR NOX Ozone Season allowance allocations.

    (a) By September 30, 2007, the Administrator will record in the CAIR 
NOX Ozone Season sources compliance account the CAIR 
NOX Ozone Season allowances allocated for the CAIR 
NOX Ozone Season units at the source in accordance with Sec. 
97.342(a) and (b) for the control period in 2009.
    (b) By September 30, 2008, the Administrator will record in the CAIR 
NOX Ozone Season source's compliance account the CAIR 
NOX Ozone Season allowances allocated for the CAIR 
NOX Ozone Season units at the source in accordance with Sec. 
97.342(a) and (b) for the control period in 2010.
    (c) By September 30, 2009, the Administrator will record in the CAIR 
NOX Ozone Season source's compliance account the CAIR Ozone 
Season NOX allowances allocated for the CAIR NOX 
Ozone Season units at the source in accordance with Sec. 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 Season 
source's compliance account the CAIR NOX Ozone Season 
allowances allocated for the CAIR NOX Ozone Season units at 
the source in accordance with Sec. 97.342(a) and (b) for the control 
period in the fourth year after the year of the applicable deadline 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 Season 
source's compliance account the CAIR NOX Ozone Season 
allowances allocated for the CAIR NOX Ozone Season units at 
the source in accordance with Sec. 97.342(a) and (c) for the control 
period in the year of the applicable deadline for recordation under this 
paragraph.
    (f) Serial numbers for allocated CAIR NOX Ozone Season allowances. 
When recording the allocation of CAIR NOX Ozone Season 
allowances for a CAIR NOX Ozone Season unit in a compliance 
account, the Administrator will assign each CAIR NOX Ozone 
Season allowance a unique identification number that will include digits 
identifying the year of the control period for which the CAIR 
NOX Ozone Season allowance is allocated.



Sec. 97.354  Compliance with CAIR NOX emissions limitation.

    (a) Allowance transfer deadline. The CAIR NOX Ozone 
Season allowances are available to be deducted for compliance with a 
source's CAIR NOX Ozone Season emissions limitation for a 
control period in a given calendar year only if the CAIR NOX 
Ozone Season allowances:
    (1) Were allocated for the control period in the year or a prior 
year; and
    (2) Are held in the compliance account as of the allowance transfer 
deadline for the control period or are transferred into the compliance 
account by a CAIR NOX Ozone Season allowance transfer 
correctly submitted for recordation under Sec. Sec. 97.360 and 97.361 
by the allowance transfer deadline for the control period.
    (b) Deductions for compliance. Following the recordation, in 
accordance with Sec. 97.361, of CAIR NOX Ozone Season 
allowance transfers submitted for recordation in a source's compliance 
account by the allowance transfer deadline for a control period, the 
Administrator will deduct from the compliance account CAIR 
NOX Ozone Season allowances available under paragraph (a) of 
this section in order to determine whether the source meets the CAIR 
NOX Ozone Season emissions limitation for the control period, 
as follows:
    (1) Until the amount of CAIR NOX Ozone Season allowances 
deducted

[[Page 1011]]

equals the number of tons of total nitrogen oxides emissions, determined 
in accordance with subpart HHHH of this part, from all CAIR 
NOX Ozone Season units at the source for the control period; 
or
    (2) If there are insufficient CAIR NOX Ozone Season 
allowances to complete the deductions in paragraph (b)(1) of this 
section, until no more CAIR NOX Ozone Season allowances 
available under paragraph (a) of this section remain in the compliance 
account.
    (c)(1) Identification of CAIR NOX Ozone Season allowances by serial 
number. The CAIR authorized account representative for a source's 
compliance account may request that specific CAIR NOX Ozone 
Season allowances, identified by serial number, in the compliance 
account be deducted for emissions or excess emissions for a control 
period in accordance with paragraph (b) or (d) of this section. Such 
request shall be submitted to the Administrator by the allowance 
transfer deadline for the control period and include, in a format 
prescribed by the Administrator, the identification of the CAIR 
NOX Ozone Season source and the appropriate serial numbers.
    (2) First-in, first-out. The Administrator will deduct CAIR 
NOX Ozone Season allowances under paragraph (b) or (d) of 
this section from the source's compliance account, in the absence of an 
identification or in the case of a partial identification of CAIR 
NOX Ozone Season allowances by serial number under paragraph 
(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 were 
allocated to the units at the source, in the order of recordation; and 
then
    (ii) Any CAIR NOX Ozone Season allowances that were 
allocated to any entity and transferred and recorded in the compliance 
account pursuant to subpart GGGG of this part, in the order of 
recordation.
    (d) Deductions for excess emissions. (1) After making the deductions 
for compliance under paragraph (b) of this section for a control period 
in a calendar year in which the CAIR NOX Ozone Season source 
has excess emissions, the Administrator will deduct from the source's 
compliance account an amount of CAIR NOX Ozone Season 
allowances, allocated for the control period in the immediately 
following calendar year, equal to 3 times the number of tons of the 
source's excess emissions.
    (2) Any allowance deduction required under paragraph (d)(1) of this 
section shall not affect the liability of the owners and operators of 
the CAIR NOX Ozone Season source or the CAIR NOX 
Ozone Season units at the source for any fine, penalty, or assessment, 
or their obligation to comply with any other remedy, for the same 
violations, as ordered under the Clean Air Act or applicable State law.
    (e) Recordation of deductions. The Administrator will record in the 
appropriate compliance account all deductions from such an account under 
paragraphs (b) and (d) of this section and subpart IIII.
    (f) Administrator(s action on submissions. (1) The Administrator may 
review and conduct independent audits concerning any submission under 
the CAIR NOX Ozone Season Trading Program and make 
appropriate adjustments of the information in the submissions.
    (2) The Administrator may deduct CAIR NOX Ozone Season 
allowances from or transfer CAIR NOX Ozone Season allowances 
to a source's compliance account based on the information in the 
submissions, as adjusted under paragraph (f)(1) of this section, and 
record such deductions and transfers.



Sec. 97.355  Banking.

    (a) CAIR NOX Ozone Season allowances may be banked for 
future use or transfer in a compliance account or a general account in 
accordance with paragraph (b) of this section.
    (b) Any CAIR NOX Ozone Season allowance that is held in a 
compliance account or a general account will remain in such account 
unless and until the CAIR NOX Ozone Season allowance is 
deducted or transferred under Sec. 97.342, Sec. 97.354, Sec. 97.356, 
or subpart GGGG or IIII of this part.



Sec. 97.356  Account error.

    The Administrator may, at his or her sole discretion and on his or 
her own

[[Page 1012]]

motion, correct any error in any CAIR NOX Ozone Season 
Allowance Tracking System account. Within 10 business days of making 
such correction, the Administrator will notify the CAIR authorized 
account representative for the account.



Sec. 97.357  Closing of general accounts.

    (a) The CAIR authorized account representative of a general account 
may submit to the Administrator a request to close the account, which 
shall include a correctly submitted allowance transfer under Sec. Sec. 
97.360 and 97.361 for any CAIR NOX Ozone Season allowances in 
the account to one or more other CAIR NOX Ozone Season 
Allowance Tracking System accounts.
    (b) If a general account has no allowance transfers in or out of the 
account for a 12-month period or longer and does not contain any CAIR 
NOX Ozone Season allowances, the Administrator may notify the 
CAIR authorized account representative for the account that the account 
will be closed following 20 business days after the notice is sent. The 
account will be closed after the 20-day period unless, before the end of 
the 20-day period, the Administrator receives a correctly submitted 
transfer of CAIR NOX Ozone Season allowances into the account 
under Sec. Sec. 97.360 and 97.361 or a statement submitted by the CAIR 
authorized account representative demonstrating to the satisfaction of 
the Administrator good cause as to why the account should not be closed.



         Subpart GGGG_CAIR NOX Ozone Season Allowance Transfers



Sec. 97.360  Submission of CAIR NOX Ozone Season allowance transfers.

    A CAIR authorized account representative seeking recordation of a 
CAIR NOX Ozone Season allowance transfer shall submit the 
transfer to the Administrator. To be considered correctly submitted, the 
CAIR NOX Ozone Season allowance transfer shall include the 
following elements, in a format specified by the Administrator:
    (a) The account numbers for both the transferor and transferee 
accounts;
    (b) The serial number of each CAIR NOX Ozone Season 
allowance that is in the transferor account and is to be transferred; 
and
    (c) The name and signature of the CAIR authorized account 
representative of the transferor account and the date signed.



Sec. 97.361  EPA recordation.

    (a) Within 5 business days (except as provided in paragraph (b) of 
this section) of receiving a CAIR NOX Ozone Season allowance 
transfer, the Administrator will record a CAIR NOX Ozone 
Season allowance transfer by moving each CAIR NOX Ozone 
Season allowance from the transferor account to the transferee account 
as specified by the request, provided that:
    (1) The transfer is correctly submitted under Sec. 97.360; and
    (2) The transferor account includes each CAIR NOX Ozone 
Season allowance identified by serial number in the transfer.
    (b) A CAIR NOX Ozone Season allowance transfer that is 
submitted for recordation after the allowance transfer deadline for a 
control period and that includes any CAIR NOX Ozone Season 
allowances allocated for any control period before such allowance 
transfer deadline will not be recorded until after the Administrator 
completes the deductions under Sec. 97.354 for the control period 
immediately before such allowance transfer deadline.
    (c) Where a CAIR NOX Ozone Season allowance transfer 
submitted 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 of 
recordation of a CAIR NOX Ozone Season allowance transfer 
under Sec. 97.361, the Administrator will notify the CAIR authorized 
account representatives of both the transferor and transferee accounts.
    (b) Notification of non-recordation. Within 10 business days of 
receipt of a CAIR NOX Ozone Season allowance transfer that 
fails to meet the requirements of Sec. 97.361(a), the Administrator 
will notify the CAIR authorized account representatives of both accounts 
subject to the transfer of:

[[Page 1013]]

    (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 a CAIR 
NOX Ozone Season allowance transfer for recordation following 
notification of non-recordation.



                  Subpart HHHH_Monitoring and Reporting



Sec. 97.370  General requirements.

    The owners and operators, and to the extent applicable, the CAIR 
designated representative, of a CAIR NOX Ozone Season unit, 
shall comply with the monitoring, recordkeeping, and reporting 
requirements as provided in this subpart and in subpart H of part 75 of 
this chapter. For purposes of complying with such requirements, the 
definitions in Sec. 97.302 and in Sec. 72.2 of this chapter shall 
apply, and the terms ``affected unit,'' ``designated representative,'' 
and ``continuous emission monitoring system'' (or ``CEMS'') in part 75 
of this chapter shall be deemed to refer to the terms ``CAIR 
NOX Ozone Season unit,'' ``CAIR designated representative,'' 
and ``continuous emission monitoring system'' (or ``CEMS'') 
respectively, as defined in Sec. 97.302. The owner or operator of a 
unit that is not a CAIR NOX Ozone Season unit but that is 
monitored under Sec. 75.72(b)(2)(ii) of this chapter shall comply with 
the same monitoring, recordkeeping, and reporting requirements as a CAIR 
NOX Ozone Season unit.
    (a) Requirements for installation, certification, and data 
accounting. The owner or operator of each CAIR NOX Ozone 
Season unit shall:
    (1) Install all monitoring systems required under this subpart for 
monitoring NOX mass emissions and individual unit heat input 
(including all systems required to monitor NOX emission rate, 
NOX concentration, stack gas moisture content, stack gas flow 
rate, CO2 or O2 concentration, 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 under 
Sec. 97.371 and meet all other requirements of this subpart and part 75 
of this chapter applicable to the monitoring systems under paragraph 
(a)(1) of this section; and
    (3) Record, report, and quality-assure the data from the monitoring 
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 monitoring system 
certification and other requirements of paragraphs (a)(1) and (2) of 
this section on or before the following dates. The owner or operator 
shall record, report, and quality-assure the data from the monitoring 
systems under paragraph (a)(1) of this section on and after the 
following dates.
    (1) For the owner or operator of a CAIR NOX Ozone Season 
unit that commences commercial operation before July 1, 2007, by May 1, 
2008.
    (2) For the owner or operator of a CAIR NOX Ozone Season 
unit that commences commercial operation on or after July 1, 2007 and 
that reports on an annual basis under Sec. 97.374(d), by the later of 
the following dates:
    (i) 90 unit operating days or 180 calendar days, whichever occurs 
first, after the date on which the unit commences commercial operation; 
or
    (ii) May 1, 2008.
    (3) For the owner or operator of a CAIR NOX Ozone Season 
unit that commences commercial operation on or after July 1, 2007 and 
that reports on a control period basis under Sec. 97.374(d)(2)(ii), by 
the later of the following dates:
    (i) 90 unit operating days or 180 calendar days, whichever occurs 
first, after the date on which the unit commences commercial operation; 
or
    (ii) If the compliance date under paragraph (b)(3)(i) of this 
section is not during a control period, May 1 immediately following the 
compliance date under paragraph (b)(3)(i) of this section.
    (4) For the owner or operator of a CAIR NOX Ozone Season 
unit for which construction of a new stack or flue or installation of 
add-on NOX emission controls is completed after the 
applicable deadline under paragraph (b)(1), (2), (6), or (7) of this 
section and that reports on an annual basis under Sec. 97.374(d), by 90 
unit operating days or

[[Page 1014]]

180 calendar days, whichever occurs first, after the date on which 
emissions first exit to the atmosphere through the new stack or flue or 
add-on NOX emissions controls.
    (5) For the owner or operator of a CAIR NOX Ozone Season 
unit for which construction of a new stack or flue or installation of 
add-on NOX emission controls is completed after the 
applicable deadline under paragraph (b)(1), (3), (6), or (7) of this 
section and that reports on a control period basis under Sec. 
97.374(d)(2)(ii), by the later of the following dates:
    (i) 90 unit operating days or 180 calendar days, whichever occurs 
first, after the date on which emissions first exit to the atmosphere 
through the new stack or flue or add-on NOX emissions 
controls; or
    (ii) If the compliance date under paragraph (b)(5)(i) of this 
section is not during a control period, May 1 immediately following the 
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 CAIR 
NOX Ozone Season opt-in permit application is submitted and 
not withdrawn and a CAIR opt-in permit is not yet issued or denied under 
subpart IIII of this part, by the date specified in Sec. 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 NOX Ozone 
Season opt-in unit under subpart IIII of this part, by the date on which 
the CAIR NOX Ozone Season opt-in unit enters the CAIR 
NOX Ozone Season Trading Program as provided in Sec. 
97.384(g).
    (c) Reporting data. The owner or operator of a CAIR NOX 
Ozone Season unit that does not meet the applicable compliance date set 
forth in paragraph (b) of this section for any monitoring system under 
paragraph (a)(1) of this section shall, for each such monitoring system, 
determine, record, and report maximum potential (or, as appropriate, 
minimum potential) values for NOX concentration, 
NOX emission rate, stack gas flow rate, stack gas moisture 
content, fuel flow rate, and any other parameters required to determine 
NOX mass emissions and 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, as applicable.
    (d) Prohibitions. (1) No owner or operator of a CAIR NOX 
Ozone Season unit shall use any alternative monitoring system, 
alternative reference method, or any other alternative to any 
requirement of this subpart without having obtained prior written 
approval in accordance with Sec. 97.375.
    (2) No owner or operator of a CAIR NOX Ozone Season unit 
shall operate the unit so as to discharge, or allow to be discharged, 
NOX emissions to the atmosphere without accounting for all 
such emissions in accordance with the applicable provisions of this 
subpart and part 75 of this chapter.
    (3) No owner or operator of a CAIR NOX Ozone Season unit 
shall disrupt the continuous emission monitoring system, any portion 
thereof, or any other approved emission monitoring method, and thereby 
avoid monitoring and recording NOX mass emissions discharged 
into the atmosphere or heat input, except for periods of recertification 
or periods when calibration, quality assurance testing, or maintenance 
is performed in accordance with the applicable provisions of this 
subpart and part 75 of this chapter.
    (4) No owner or operator of a CAIR NOX Ozone Season unit 
shall retire or permanently discontinue use of the continuous emission 
monitoring system, any component thereof, or any other approved 
monitoring system under this subpart, except under any one of the 
following circumstances:
    (i) During the period that the unit is covered by an exemption under 
Sec. 97.305 that is in effect;
    (ii) The owner or operator is monitoring emissions from the unit 
with another certified monitoring system approved, in accordance with 
the applicable provisions of this subpart and part 75 of this chapter, 
by the Administrator for use at that unit that provides emission data 
for the same pollutant or parameter as the retired or discontinued 
monitoring system; or
    (iii) The CAIR designated representative submits notification of the 
date of

[[Page 1015]]

certification testing of a replacement monitoring system for the retired 
or discontinued monitoring system in accordance with Sec. 
97.371(d)(3)(i).
    (e) Long-term cold storage. The owner or operator of a CAIR 
NOX Ozone Season unit is subject to the applicable provisions 
of part 75 of this chapter concerning units in long-term cold storage.



Sec. 97.371  Initial certification and recertification procedures.

    (a) The owner or operator of a CAIR NOX Ozone Season unit 
shall be exempt from the initial certification requirements of this 
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 in 
accordance with part 75 of this chapter; and
    (2) The applicable quality-assurance and quality-control 
requirements of Sec. 75.21 of this chapter and appendix B, appendix D, 
and appendix E to part 75 of this chapter are fully met for the 
certified monitoring system described in paragraph (a)(1) of this 
section.
    (b) The recertification provisions of this section shall apply to a 
monitoring system under Sec. 97.370(a)(1) exempt from initial 
certification requirements under paragraph (a) of this section.
    (c) If the Administrator has previously approved a petition under 
Sec. 75.17(a) or (b) of this chapter for apportioning the 
NOX emission rate measured in a common stack or a petition 
under Sec. 75.66 of this chapter for an alternative to a requirement in 
Sec. 75.12 or Sec. 75.17 of this chapter, the CAIR designated 
representative shall resubmit the petition to the Administrator under 
Sec. 97.375 to determine whether the approval applies under the CAIR 
NOX Ozone Season Trading Program.
    (d) Except as provided in paragraph (a) of this section, the owner 
or operator of a CAIR NOX Ozone Season unit shall comply with 
the following initial certification and recertification procedures for a 
continuous monitoring system (i.e., a continuous emission monitoring 
system and an excepted monitoring system under appendices D and E to 
part 75 of this chapter) under Sec. 97.370(a)(1). The owner or operator 
of a unit that qualifies to use the low mass emissions excepted 
monitoring methodology under Sec. 75.19 of this chapter or that 
qualifies to use an alternative monitoring system under subpart E of 
part 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 or operator 
shall ensure that each continuous monitoring system under Sec. 
97.370(a)(1) (including the automated data acquisition and handling 
system) successfully completes all of the initial certification testing 
required under Sec. 75.20 of this chapter by the applicable deadline in 
Sec. 97.370(b). In addition, whenever the owner or operator installs a 
monitoring system to meet the requirements of this subpart in a location 
where no such monitoring system was previously installed, initial 
certification in accordance with Sec. 75.20 of this chapter is 
required.
    (2) Requirements for recertification. Whenever the owner or operator 
makes a replacement, modification, or change in any certified continuous 
emission monitoring system under Sec. 97.370(a)(1) that may 
significantly affect the ability of the system to accurately measure or 
record NOX mass emissions or heat input rate or to meet the 
quality-assurance and quality-control requirements of Sec. 75.21 of 
this chapter or appendix B to part 75 of this chapter, the owner or 
operator shall recertify the monitoring system 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's operation that may significantly change the stack 
flow or concentration profile, the owner or operator shall recertify 
each continuous emission monitoring system whose accuracy is potentially 
affected by the change, in accordance with Sec. 75.20(b) of this 
chapter. Examples of changes to a continuous emission monitoring system 
that require recertification include: replacement of the analyzer, 
complete replacement of an existing continuous emission monitoring 
system, or change in location or orientation of the sampling probe or 
site. Any fuel flowmeter systems, and any excepted NOX 
monitoring system under appendix E to part

[[Page 1016]]

75 of this chapter, under Sec. 97.370(a)(1) are subject to the 
recertification requirements in Sec. 75.20(g)(6) of this chapter.
    (3) Approval process for initial certification and recertification. 
Paragraphs (d)(3)(i) through (iv) of this section apply to both initial 
certification and recertification of a continuous monitoring system 
under Sec. 97.370(a)(1). For recertifications, 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 designated 
representative shall submit to the appropriate EPA Regional Office and 
the Administrator written notice of the dates of certification testing, 
in accordance with Sec. 97.373.
    (ii) Certification application. The CAIR designated representative 
shall submit to the Administrator a certification application for each 
monitoring system. A complete certification application shall include 
the information specified in Sec. 75.63 of this chapter.
    (iii) Provisional certification date. The provisional certification 
date for a monitoring system shall be determined in accordance with 
Sec. 75.20(a)(3) of this chapter. A provisionally certified monitoring 
system may be used under the CAIR NOX Ozone Season Trading 
Program for a period not to exceed 120 days after receipt by the 
Administrator of the complete certification application for the 
monitoring system under paragraph (d)(3)(ii) of this section. Data 
measured and recorded by the provisionally certified monitoring system, 
in accordance with the requirements of part 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 provisional certification by issuing a notice of 
disapproval within 120 days of the date of receipt of the complete 
certification application by the Administrator.
    (iv) Certification application approval process. The Administrator 
will issue a written notice of approval or disapproval of the 
certification application to the owner or operator within 120 days of 
receipt of the complete certification application under paragraph 
(d)(3)(ii) of this section. In the event the Administrator does not 
issue such a notice within such 120-day period, each monitoring system 
that meets the applicable performance requirements of part 75 of this 
chapter and is included in the certification application will be deemed 
certified for use under the CAIR NOX Ozone Season Trading 
Program.
    (A) Approval notice. If the certification application is complete 
and shows that each monitoring system meets the applicable performance 
requirements of part 75 of this chapter, then the Administrator will 
issue a written notice of approval of the certification application 
within 120 days of receipt.
    (B) Incomplete application notice. If the certification application 
is not complete, then the Administrator will issue a written notice of 
incompleteness that sets a reasonable date by which the CAIR designated 
representative must submit the additional information required to 
complete the certification application. If the CAIR designated 
representative does not comply with the notice of incompleteness by the 
specified date, then the Administrator may issue a notice of disapproval 
under paragraph (d)(3)(iv)(C) of this section. The 120-day review period 
shall not begin before receipt of a complete certification application.
    (C) Disapproval notice. If the certification application shows that 
any monitoring system does not meet the performance requirements of part 
75 of this chapter or if the certification application is incomplete and 
the requirement for disapproval under paragraph (d)(3)(iv)(B) of this 
section is met, then the Administrator will issue a written notice of 
disapproval of the certification application. Upon issuance of such 
notice of disapproval, the provisional certification is invalidated by 
the Administrator and the data measured and recorded by each uncertified 
monitoring system shall not be considered valid quality-assured data 
beginning with the date and hour

[[Page 1017]]

of provisional certification (as defined under Sec. 75.20(a)(3) of this 
chapter). The owner or operator shall follow the procedures for loss of 
certification in paragraph (d)(3)(v) of this section for each monitoring 
system that is disapproved for initial certification.
    (D) Audit decertification. The Administrator may issue a notice of 
disapproval of the certification status of a monitor in accordance with 
Sec. 97.372(b).
    (v) Procedures for loss of certification. If the Administrator 
issues a notice of disapproval of a certification application under 
paragraph (d)(3)(iv)(C) of this section or a notice of 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 unit operation 
during the period of invalid data specified under Sec. 
75.20(a)(4)(iii), Sec. 75.20(g)(7), or Sec. 75.21(e) of this chapter 
and continuing until the applicable 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 potential NOX 
emission rate, as defined in ( 72.2 of this chapter.
    (2) For a disapproved NOX pollutant concentration monitor 
and disapproved flow monitor, respectively, the maximum potential 
concentration of NOX and the maximum potential flow rate, as 
defined in sections 2.1.2.1 and 2.1.4.1 of appendix A to part 75 of this 
chapter.
    (3) For a disapproved moisture monitoring system and disapproved 
diluent gas monitoring system, respectively, the minimum potential 
moisture percentage and either the maximum potential CO2 
concentration or the minimum potential O2 concentration (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 maximum potential 
fuel flow rate, as defined in section 2.4.2.1 of appendix D to part 75 
of this chapter.
    (5) For a disapproved excepted NOX monitoring system 
under appendix E to part 75 of this chapter, the fuel-specific maximum 
potential NOX emission rate, as defined in ( 72.2 of this 
chapter.
    (B) The CAIR designated representative shall submit a notification 
of certification retest dates and a new certification application in 
accordance with paragraphs (d)(3)(i) and (ii) of this section.
    (C) The owner or operator shall repeat all certification tests or 
other requirements that were failed by the monitoring system, as 
indicated in the Administrator's notice of disapproval, no later than 30 
unit operating days after the date of issuance of the notice of 
disapproval.
    (e) Initial certification and recertification procedures for units 
using the low mass emission excepted methodology under Sec. 75.19 of 
this chapter. The owner or operator of a unit qualified to use the low 
mass emissions (LME) excepted methodology under Sec. 75.19 of this 
chapter shall meet the applicable certification and recertification 
requirements in Sec. Sec. 75.19(a)(2) and 75.20(h) of this chapter. If 
the owner or operator of such a unit elects to certify a fuel flowmeter 
system for heat input determination, the owner or operator shall also 
meet the certification and recertification requirements in Sec. 
75.20(g) of this chapter.
    (f) Certification/recertification procedures for alternative 
monitoring systems. The CAIR designated representative of each unit for 
which the owner or operator intends to use an alternative monitoring 
system approved by the Administrator under subpart E of part 75 of this 
chapter shall comply with the applicable notification and 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 validation 
requirements of part 75 of this chapter, data shall be substituted using 
the applicable missing data procedures in subpart D or subpart H of, or 
appendix D or appendix E to, part 75 of this chapter.
    (b) Audit decertification. Whenever both an audit of a monitoring 
system and a review of the initial certification or recertification 
application reveal that any monitoring system should not

[[Page 1018]]

have been certified or recertified because it did not meet a particular 
performance specification or other requirement under Sec. 97.371 or the 
applicable provisions of part 75 of this chapter, both at the time of 
the initial certification or recertification application submission and 
at the time of the audit, the Administrator will issue a notice of 
disapproval of the certification status of such monitoring system. For 
the purposes of this paragraph, an audit shall be either a field audit 
or an audit of any information submitted to the permitting authority or 
the Administrator. By issuing the notice of disapproval, the 
Administrator revokes prospectively the certification status of the 
monitoring system. The data measured and recorded by the monitoring 
system shall not be considered valid quality-assured data from the date 
of issuance of the notification of the revoked certification status 
until the date and time that the owner or operator completes 
subsequently approved initial certification or recertification tests for 
the monitoring system. The owner or operator shall follow the applicable 
initial certification or recertification procedures in Sec. 97.371 for 
each disapproved monitoring system.



Sec. 97.373  Notifications.

    The CAIR designated representative for a CAIR NOX Ozone 
Season unit shall submit written notice to the Administrator in 
accordance with Sec. 75.61 of this chapter.



Sec. 97.374  Recordkeeping and reporting.

    (a) General provisions. The CAIR designated representative shall 
comply with all recordkeeping and reporting requirements in this 
section, the applicable recordkeeping and reporting requirements under 
Sec. 75.73 of this chapter, and the requirements of Sec. 97.310(e)(1).
    (b) Monitoring Plans. The owner or operator of a CAIR NOX 
Ozone Season unit shall comply with requirements of Sec. 75.73 (c) and 
(e) of this chapter and, for a unit for which a CAIR opt-in permit 
application is submitted and not withdrawn and a CAIR opt-in permit is 
not yet issued or denied under subpart IIII of this part, Sec. Sec. 
97.383 and 97.384(a).
    (c) Certification Applications. The CAIR designated representative 
shall submit an application to the Administrator within 45 days after 
completing all initial certification or recertification tests required 
under Sec. 97.371, including the information required under Sec. 75.63 
of this chapter.
    (d) Quarterly reports. The CAIR designated representative shall 
submit quarterly reports, as follows:
    (1) If the CAIR NOX Ozone Season unit is subject to an 
Acid Rain emissions limitation or a CAIR NOX emissions 
limitation or if the owner or operator of such unit chooses to report on 
an annual basis under this subpart, the CAIR designated representative 
shall meet the requirements of subpart H of part 75 of this chapter 
(concerning monitoring of NOX mass emissions) for such unit 
for the entire year and shall report the NOX mass emissions 
data and heat input data for such unit, in an electronic quarterly 
report in a format prescribed by the Administrator, 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 after July 
1, 2007, the calendar quarter corresponding to the earlier of the date 
of provisional certification or the applicable deadline for initial 
certification under Sec. 97.370(b), unless that quarter is the third or 
fourth quarter of 2007 or the first quarter of 2008, in which case 
reporting shall commence in the quarter covering May 1, 2008 through 
June 30, 2008;
    (iii) Notwithstanding paragraphs (d)(1) (i) and (ii) of this 
section, for a unit for which a CAIR opt-in permit application is 
submitted and not withdrawn and a CAIR opt-in permit is not yet issued 
or denied under subpart IIII of this part, the calendar quarter 
corresponding to the date specified in Sec. 97.384(b); and
    (iv) Notwithstanding paragraphs (d)(1) (i) and (ii) of this section, 
for a CAIR NOX Ozone Season opt-in unit under subpart IIII of 
this part, the calendar quarter corresponding to the date on which the 
CAIR NOX Ozone Season opt-in unit enters the CAIR

[[Page 1019]]

NOX Ozone Season Trading Program as provided in Sec. 
97.384(g).
    (2) If the CAIR NOX Ozone Season unit is not subject to 
an Acid Rain emissions limitation or a CAIR NOX emissions 
limitation, then the CAIR designated representative shall either:
    (i) Meet the requirements of subpart H of part 75 (concerning 
monitoring of NOX mass emissions) for such unit for the 
entire year and report the NOX mass emissions data and heat 
input data for such unit in accordance with paragraph (d)(1) of this 
section; or
    (ii) Meet the requirements of subpart H of part 75 for the control 
period (including the requirements in Sec. 75.74(c) of this chapter) 
and report NOX mass emissions data and heat input data 
(including the data described in Sec. 75.74(c)(6) of this chapter) for 
such unit only for the control period of each year and report, in an 
electronic quarterly report in a format prescribed by 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 after July 
1, 2007, the calendar quarter corresponding to the earlier of the date 
of provisional certification or the applicable deadline for initial 
certification under Sec. 97.370(b), unless that date is not during a 
control period, in which case reporting shall commence in the quarter 
that includes May 1 through June 30 of the first control period after 
such date;
    (C) Notwithstanding paragraphs (d)(2)(ii)(A) and (2)(ii)(B) of this 
section, for a unit for which a CAIR opt-in permit application is 
submitted and not withdrawn and a CAIR opt-in permit is not yet issued 
or denied under subpart IIII of this part, the calendar quarter 
corresponding to the date specified in Sec. 97.384(b); and
    (D) Notwithstanding paragraphs (d)(2)(ii)(A) and (2)(ii)(B) of this 
section, for a CAIR NOX Ozone Season opt-in unit under 
subpart IIII of this part, the calendar quarter corresponding to the 
date on which the CAIR NOX Ozone Season opt-in unit enters 
the CAIR NOX Ozone Season Trading Program as provided in 
Sec. 97.384(g).
    (3) The CAIR designated representative shall submit each quarterly 
report to the Administrator within 30 days following the end of the 
calendar quarter covered by the report. Quarterly reports shall be 
submitted in the manner specified in Sec. 75.73(f) of this chapter.
    (4) For CAIR NOX Ozone Season units that are also subject 
to an Acid Rain emissions limitation or the CAIR NOX Annual 
Trading Program, CAIR SO2 Trading Program, or Hg Budget 
Trading Program, quarterly reports shall include the applicable data and 
information required by subparts F through I of part 75 of this chapter 
as applicable, in addition to the NOX mass emission data, 
heat input data, and other information required by this subpart.
    (e) Compliance certification. The CAIR designated representative 
shall submit to the Administrator a compliance certification (in a 
format prescribed by the Administrator) in support of each quarterly 
report based on reasonable inquiry of those persons with primary 
responsibility for ensuring that all of the unit's emissions are 
correctly and fully monitored. The certification shall state that:
    (1) The monitoring data submitted were recorded in accordance with 
the applicable requirements of this subpart and part 75 of this chapter, 
including the quality assurance procedures and specifications;
    (2) For a unit with add-on NOX emission controls and for 
all hours where NOX data are substituted in accordance with 
Sec. 75.34(a)(1) of this chapter, the add-on emission controls were 
operating within the range of parameters listed in the quality 
assurance/quality control program under appendix B to part 75 of this 
chapter and the substitute data values do not systematically 
underestimate NOX emissions; and
    (3) For a unit that is reporting on a control period basis under 
paragraph (d)(2)(ii) of this section, the NOX emission rate 
and NOX concentration values substituted for missing data 
under subpart D of part 75 of this chapter are calculated using only 
values from a control period and do not systematically underestimate 
NOX emissions.

[[Page 1020]]



Sec. 97.375  Petitions.

    The CAIR designated representative of a CAIR NOX Ozone 
Season unit may submit a petition under Sec. 75.66 of this chapter to 
the Administrator requesting approval to apply an alternative to any 
requirement of this subpart. Application of an alternative to any 
requirement of this subpart is in accordance with this subpart only to 
the extent that the petition is approved in writing by the 
Administrator, in consultation with the permitting authority.



             Subpart IIII_CAIR NOX Ozone Season Opt-in Units



Sec. 97.380  Applicability.

    A CAIR NOX Ozone Season opt-in unit must be a unit that:
    (a) Is located in a State that submits, and for which the 
Administrator approves, a State implementation plan revision in 
accordance with Sec. 51.123(ee)(3) (i), (ii), or (iii) of this chapter 
establishing procedures concerning CAIR Ozone Season opt-in units;
    (b) Is not a CAIR NOX Ozone Season unit under Sec. 
97.304 and is not covered by a retired unit exemption under Sec. 97.305 
that is in effect;
    (c) Is not covered by a retired unit exemption under Sec. 72.8 of 
this chapter that is in effect;
    (d) Has or is required or qualified to have a title V operating 
permit or other federally enforceable permit; and
    (e) Vents all of its emissions to a stack and can meet the 
monitoring, recordkeeping, and reporting requirements of subpart HHHH of 
this part.



Sec. 97.381  General.

    (a) Except as otherwise provided in Sec. Sec. 97.301 through 
97.304, Sec. Sec. 97.306 through 97.308, and subparts BBBB and CCCC and 
subparts FFFF through HHHH of this part, a CAIR NOX Ozone 
Season opt-in unit shall be treated as a CAIR NOX Ozone 
Season unit 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 HHHH of this part to a unit for which a CAIR 
opt-in permit application is submitted and not withdrawn and a CAIR opt-
in permit is not yet issued or denied under this subpart, such unit 
shall be treated as a CAIR NOX Ozone Season unit before 
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 unit for 
which a CAIR opt-in permit application is submitted and not withdrawn 
and a CAIR opt-in permit is not yet issued or denied under this subpart, 
located at the same source as one or more CAIR NOX Ozone 
Season units shall have the same CAIR designated representative and 
alternate CAIR designated representative as such CAIR NOX 
Ozone Season units.



Sec. 97.383  Applying for CAIR opt-in permit.

    (a) Applying for initial CAIR opt-in permit. The CAIR designated 
representative of a unit meeting the requirements for a CAIR 
NOX Ozone Season opt-in unit in Sec. 97.380 may apply for an 
initial CAIR opt-in permit at any 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 under Sec. 97.322;
    (2) A certification, in a format specified by the permitting 
authority, that the unit:
    (i) Is not a CAIR NOX Ozone Season unit under Sec. 
97.304 and is not covered by a retired unit exemption under Sec. 97.305 
that is in effect;
    (ii) Is not covered by a retired unit exemption under Sec. 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 the 6 
months immediately preceding submission of the CAIR permit application 
under Sec. 97.322;
    (3) A monitoring plan in accordance with subpart HHHH of this part;
    (4) A complete certificate of representation under Sec. 97.313 
consistent with Sec. 97.382, if no CAIR designated representative has 
been previously designated for the source that includes the unit; and

[[Page 1021]]

    (5) A statement, in a format specified by the permitting authority, 
whether the CAIR designated representative requests that the unit be 
allocated CAIR NOX Ozone Season allowances under Sec. 
97.380(b) or Sec. 97.388(c) (subject to the conditions in Sec. Sec. 
97.384(h) and 97.386(g)), to the extent such allocation is provided in a 
State implementation plan revision submitted in accordance with Sec. 
51.123(ee)(3)(i), (ii), or (iii) of this chapter and approved by the 
Administrator. If allocation under Sec. 97.388(c) is requested, this 
statement shall include a statement that the owners and operators intend 
to repower 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 representative of a 
CAIR NOX Ozone Season opt-in unit shall submit a complete 
CAIR permit application under Sec. 97.322 to renew the CAIR opt-in unit 
permit in accordance with the permitting authority's regulations for 
title V operating permits, or the permitting authority's regulations for 
other federally enforceable permits if applicable, addressing permit 
renewal.
    (2) Unless the permitting authority issues a notification of 
acceptance of withdrawal of the CAIR NOX Ozone Season opt-in 
unit from the CAIR NOX Ozone Season Trading Program in 
accordance with Sec. 97.386 or the unit becomes a CAIR NOX 
Ozone Season unit under Sec. 97.304, the CAIR NOX Ozone 
Season opt-in unit shall remain subject to the requirements for a CAIR 
NOX Ozone Season opt-in unit, even if the CAIR designated 
representative for the CAIR NOX Ozone Season opt-in unit 
fails to submit a CAIR permit application that is required for renewal 
of the CAIR opt-in permit under paragraph (b)(1) of this section.



Sec. 97.384  Opt-in process.

    The permitting authority will issue or deny a CAIR opt-in permit for 
a unit for which an initial application for a CAIR opt-in permit under 
Sec. 97.383 is submitted in accordance with the following, to the 
extent provided in a State implementation plan revision 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 permitting authority and 
the Administrator will determine, on an interim basis, the sufficiency 
of the monitoring plan accompanying the initial application for a CAIR 
opt-in permit under Sec. 97.383. A monitoring plan is sufficient, for 
purposes of interim review, if the plan appears to contain information 
demonstrating that the NOX emissions rate and heat input of 
the unit and all other applicable parameters are monitored and reported 
in accordance with subpart HHHH of this part. A determination of 
sufficiency shall not be construed as acceptance or approval of the 
monitoring plan.
    (b) Monitoring and reporting. (1)(i) If the permitting authority and 
the Administrator determine that the monitoring plan is sufficient under 
paragraph (a) of this section, the owner or operator shall monitor and 
report the NOX emissions rate and the heat input of the unit 
and all other applicable parameters, in accordance with subpart HHHH of 
this part, starting on the date of certification of the appropriate 
monitoring systems under subpart HHHH of this part and continuing until 
a CAIR opt-in permit is denied under Sec. 97.384(f) or, if a CAIR opt-
in permit is issued, the date and time when the unit is withdrawn from 
the CAIR NOX Ozone Season Trading Program in accordance with 
Sec. 97.386.
    (ii) The monitoring and reporting under paragraph (b)(1)(i) of this 
section shall include the entire control period immediately before the 
date on which the unit enters the CAIR NOX Ozone Season 
Trading Program under Sec. 97.384(g), during which period monitoring 
system availability must not be less than 90 percent under subpart HHHH 
of this part and the unit must be in full compliance with any applicable 
State or Federal emissions or emissions-related requirements.
    (2) To the extent the NOX emissions rate and the heat 
input of the unit are monitored and reported in accordance with subpart 
HHHH of this part for one or more control periods, in addition to the 
control period under paragraph (b)(1)(ii) of this section, during which 
control periods monitoring system

[[Page 1022]]

availability is not less than 90 percent under subpart HHHH of this part 
and the unit is in full compliance with any applicable State or Federal 
emissions or emissions-related requirements and which control periods 
begin not more than 3 years before the unit enters the CAIR 
NOX Ozone Season Trading Program under Sec. 97.384(g), such 
information shall be used as provided in paragraphs (c) and (d) of this 
section.
    (c) Baseline heat input. The unit's baseline heat input shall equal:
    (1) If the unit's NOX emissions rate and heat input are 
monitored and reported for only one control period, in accordance with 
paragraph (b)(1) of this section, the unit's total heat input (in mmBtu) 
for the control period; or
    (2) If the unit's NOX emissions rate and heat input are 
monitored and reported for more than one control period, in accordance 
with paragraphs (b)(1) and (2) of this section, the average of the 
amounts of the unit's total heat input (in mmBtu) for the control 
periods under paragraphs (b)(1)(ii) and (2) of this section.
    (d) Baseline NOX emission rate. The unit's baseline NOX 
emission rate shall equal:
    (1) If the unit's NOX emissions rate and heat input are 
monitored and reported for only one control period, in accordance with 
paragraph (b)(1) of this section, the unit's NOX emissions 
rate (in lb/mmBtu) for the control period;
    (2) If the unit's NOX emissions rate and heat input are 
monitored and reported for more than one control period, in accordance 
with paragraphs (b)(1) and (2) of this section, and the unit does not 
have add-on NOX emission controls during any such control 
periods, the average of the amounts of the unit's NOX 
emissions rate (in lb/mmBtu) for the control periods under paragraphs 
(b)(1)(ii) and (2) of this section; or
    (3) If the unit's NOX emissions rate and heat input are 
monitored and reported for more than one control period, in accordance 
with paragraphs (b)(1) and (2) of this section, and the unit has add-on 
NOX emission controls during any such control periods, the 
average of the amounts of the unit's NOX emissions rate (in 
lb/mmBtu) for such control periods during which the unit has add-on 
NOX emission controls.
    (e) Issuance of CAIR opt-in permit. After calculating the baseline 
heat input and the baseline NOX emissions rate for the unit 
under paragraphs (c) and (d) of this section and if the permitting 
authority determines that the CAIR designated representative shows that 
the unit meets the requirements for a CAIR NOX Ozone Season 
opt-in unit in Sec. 97.380 and meets the elements certified in Sec. 
97.383(a)(2), the permitting authority will issue a CAIR opt-in permit. 
The permitting authority will provide a copy of the CAIR opt-in permit 
to the Administrator, who will then establish a compliance account for 
the source that includes the CAIR NOX Ozone Season opt-in 
unit unless 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 any time before 
issuance of a CAIR opt-in permit for the unit, the permitting authority 
determines that the CAIR designated representative fails to show that 
the unit meets the requirements for a CAIR NOX Ozone Season 
opt-in unit in Sec. 97.380 or meets the elements certified in Sec. 
97.383(a)(2), the permitting authority will issue a denial of a CAIR 
opt-in permit for the unit.
    (g) Date of entry into CAIR NOX Ozone Season Trading 
Program. A unit for which an initial CAIR opt-in permit is issued by the 
permitting authority shall become a CAIR NOX Ozone Season 
opt-in unit, and a CAIR NOX Ozone Season unit, as of the 
later of May 1, 2009 or May 1 of the first control period 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 permitting authority 
issues a CAIR opt-in permit providing for, allocation to a CAIR 
NOX Ozone Season opt-in unit of CAIR NOX Ozone 
Season allowances under Sec. 97.388(c) and such unit is repowered after 
its date of entry into the CAIR NOX Ozone Season Trading 
Program under paragraph (g) of this section, the repowered unit shall be 
treated as a CAIR NOX Ozone Season opt-in unit replacing the 
original CAIR NOX

[[Page 1023]]

Ozone Season opt-in unit, as of the date of start-up of the repowered 
unit's combustion chamber.
    (2) Notwithstanding paragraphs (c) and (d) of this section, as of 
the date of start-up under paragraph (h)(1) of this section, the 
repowered unit shall be deemed to have the same date of commencement of 
operation, date of commencement of commercial operation, baseline heat 
input, and baseline NOX emission rate as the original CAIR 
NOX Ozone Season opt-in unit, and the original CAIR 
NOX Ozone Season opt-in unit shall no longer be treated as a 
CAIR NOX Ozone Season opt-in unit or a CAIR NOX 
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 application 
under 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 under Sec. 
97.384(d);
    (5) A statement whether the unit is to be allocated CAIR 
NOX Ozone Season allowances under Sec. 97.388(b) or Sec. 
97.388(c) (subject to the conditions in Sec. Sec. 97.384(h) and 
97.386(g));
    (6) A statement that the unit may withdraw from the CAIR 
NOX Ozone Season Trading Program only in accordance with 
Sec. 97.386; and
    (7) A statement that the unit is subject to, and the owners and 
operators of the unit must comply with, the requirements of Sec. 
97.387.
    (b) Each CAIR opt-in permit is deemed to incorporate automatically 
the definitions of terms under Sec. 97.302 and, upon recordation by the 
Administrator under subpart FFFF or GGGG of this part or this subpart, 
every allocation, transfer, or deduction of CAIR NOX Ozone 
Season allowances to or from the compliance account of the source that 
includes a CAIR NOX Ozone Season opt-in unit covered by the 
CAIR opt-in permit.
    (c) The CAIR opt-in permit shall be included, in a format specified 
by the permitting authority, in the CAIR permit for the source where the 
CAIR NOX Ozone Season opt-in unit is located and in a title V 
operating permit or other federally enforceable 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 CAIR 
NOX Ozone Season opt-in unit may withdraw from the CAIR 
NOX Ozone Season Trading Program, but only if the permitting 
authority issues a notification to the CAIR designated representative of 
the CAIR NOX Ozone Season opt-in unit of the acceptance of 
the withdrawal of the CAIR NOX Ozone Season opt-in unit in 
accordance with paragraph (d) of this section.
    (a) Requesting withdrawal. In order to withdraw a CAIR 
NOX Ozone Season opt-in unit from the CAIR NOX 
Ozone Season Trading Program, the CAIR designated representative of the 
CAIR NOX Ozone Season opt-in unit shall submit to the 
permitting authority a request to withdraw effective as of midnight of 
September 30 of a specified calendar year, which date must be at least 4 
years after September 30 of the year of entry into the CAIR 
NOX Ozone Season Trading Program under Sec. 97.384(g). The 
request must be submitted no later than 90 days before the requested 
effective date of withdrawal.
    (b) Conditions for withdrawal. Before a CAIR NOX Ozone 
Season opt-in unit covered by a request under paragraph (a) of this 
section may withdraw from the CAIR NOX Ozone Season Trading 
Program and the CAIR opt-in permit may be terminated under paragraph (e) 
of this section, the following conditions must be met:
    (1) For the control period ending on the date on which the 
withdrawal is to be effective, the source that includes the CAIR 
NOX Ozone Season opt-in unit must meet the requirement to 
hold CAIR NOX Ozone Season allowances under Sec. 97.306(c) 
and cannot have any excess emissions.
    (2) After the requirement for withdrawal under paragraph (b)(1) of 
this section is met, the Administrator will deduct from the compliance 
account of the source that includes the CAIR NOX Ozone Season 
opt-in unit CAIR NOX

[[Page 1024]]

Ozone Season allowances equal in amount to and allocated for the same or 
a prior control period as any CAIR NOX Ozone Season 
allowances allocated to the CAIR NOX Ozone Season opt-in unit 
under Sec. 97.388 for any control period for which the withdrawal is to 
be effective. If there are no remaining CAIR NOX Ozone Season 
units at the source, the Administrator will close the compliance 
account, and the owners and operators of the CAIR NOX Ozone 
Season opt-in unit may submit a CAIR NOX Ozone Season 
allowance transfer for any remaining CAIR NOX Ozone Season 
allowances to another CAIR NOX Ozone Season Allowance 
Tracking System in accordance with subpart GGGG of this part.
    (c) Notification. (1) After the requirements for withdrawal under 
paragraphs (a) and (b) of this section are met (including deduction of 
the full amount of CAIR NOX Ozone Season allowances 
required), the permitting authority will issue a notification to the 
CAIR designated representative of the CAIR NOX Ozone Season 
opt-in unit of the acceptance of the withdrawal of the CAIR 
NOX Ozone Season opt-in unit as of midnight on September 30 
of the calendar year for which the withdrawal was requested.
    (2) If the requirements for withdrawal under paragraphs (a) and (b) 
of this section are not met, the permitting authority will issue a 
notification to the CAIR designated representative of the CAIR 
NOX Ozone Season opt-in unit that the CAIR NOX 
Ozone Season opt-in unit's request to withdraw is denied. Such CAIR 
NOX Ozone Season opt-in unit shall continue to be a CAIR 
NOX Ozone Season opt-in unit.
    (d) Permit amendment. After the permitting authority issues a 
notification under paragraph (c)(1) of this section that the 
requirements for withdrawal have been met, the permitting authority will 
revise the CAIR permit covering the CAIR NOX Ozone Season 
opt-in unit to terminate the CAIR opt-in permit for such unit as of the 
effective date specified under paragraph (c)(1) of this section. The 
unit shall continue to be a CAIR NOX Ozone Season opt-in unit 
until the effective date of the termination and shall comply with all 
requirements under the CAIR NOX Ozone Season Trading Program 
concerning any control periods for which the unit is a CAIR 
NOX Ozone Season opt-in unit, even if such requirements arise 
or must be complied with after the withdrawal takes effect.
    (e) Reapplication upon failure to meet conditions of withdrawal. If 
the permitting authority denies the CAIR NOX Ozone Season 
opt-in unit's request to withdraw, the CAIR designated representative 
may submit another request to withdraw in accordance with paragraphs (a) 
and (b) of this section.
    (f) Ability to reapply to the CAIR NOX Ozone Season Trading Program. 
Once a CAIR NOX Ozone Season opt-in unit withdraws from the 
CAIR NOX Ozone Season Trading Program and its CAIR opt-in 
permit is terminated under this section, the CAIR designated 
representative may not submit another application for a CAIR opt-in 
permit under Sec. 97.383 for such CAIR NOX Ozone Season opt-
in unit before the date that is 4 years after the date on which the 
withdrawal became effective. Such new application for a CAIR opt-in 
permit will be treated as an initial application for a CAIR opt-in 
permit under Sec. 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 CAIR NOX Ozone 
Season Trading Program if the CAIR designated representative of the CAIR 
NOX Ozone Season opt-in unit requests, and the permitting 
authority issues a CAIR opt-in permit providing for, allocation to the 
CAIR NOX Ozone Season opt-in unit of CAIR NOX 
Ozone Season allowances under Sec. 97.388(c).



Sec. 97.387  Change in regulatory status.

    (a) Notification. If a CAIR NOX Ozone Season opt-in unit 
becomes a CAIR NOX Ozone Season unit under Sec. 97.304, then 
the CAIR designated representative shall notify in writing the 
permitting authority and the Administrator of such change in the CAIR 
NOX Ozone Season opt-in unit's regulatory 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 CAIR 
NOX Ozone Season unit under Sec. 97.304, the permitting 
authority will revise

[[Page 1025]]

the CAIR NOX Ozone Season opt-in unit's CAIR opt-in permit to 
meet the requirements of a CAIR permit under Sec. 97.323, and remove 
the CAIR opt-in permit provisions, as of the date on which the CAIR 
NOX Ozone Season opt-in unit becomes a CAIR NOX 
Ozone Season unit under Sec. 97.304.
    (2)(i) The Administrator will deduct from the compliance account of 
the source that includes the CAIR NOX Ozone Season opt-in 
unit that becomes a CAIR NOX Ozone Season unit under Sec. 
97.304, CAIR NOX Ozone Season allowances equal in amount to 
and allocated for the same or a prior control period as:
    (A) Any CAIR NOX Ozone Season allowances allocated to the 
CAIR NOX Ozone Season opt-in unit under Sec. 97.388 for any 
control period after the date on which the CAIR NOX Ozone 
Season opt-in unit becomes a CAIR NOX Ozone Season unit under 
Sec. 97.304; and
    (B) If the date on which the CAIR NOX Ozone Season opt-in 
unit becomes a CAIR NOX Ozone Season unit under Sec. 97.304 
is not September 30, the CAIR NOX Ozone Season allowances 
allocated to the CAIR NOX Ozone Season opt-in unit under 
Sec. 97.388 for the control period that includes the date on which the 
CAIR NOX Ozone Season opt-in unit becomes a CAIR 
NOX Ozone Season unit under Sec. 97.304, multiplied by the 
ratio of the number of days, in the control period, starting with the 
date on which the CAIR NOX Ozone Season opt-in unit becomes a 
CAIR NOX Ozone Season unit under Sec. 97.304 divided by the 
total number of days in the control period and rounded to the nearest 
whole allowance as appropriate.
    (ii) The CAIR designated representative shall ensure that the 
compliance account of the source that includes the CAIR NOX 
Ozone Season opt-in unit that becomes a CAIR NOX Ozone Season 
unit under Sec. 97.304 contains the CAIR NOX Ozone Season 
allowances 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 CAIR 
NOX Ozone Season opt-in unit becomes a CAIR NOX 
Ozone Season unit under Sec. 97.304, the CAIR NOX Ozone 
Season opt-in unit will be allocated CAIR NOX Ozone Season 
allowances under Sec. 97.342.
    (ii) If the date on which the CAIR NOX Ozone Season opt-
in unit becomes a CAIR NOX Ozone Season unit under Sec. 
97.304 is not September 30, the following amount of CAIR NOX 
Ozone Season allowances will be allocated to the CAIR NOX 
Ozone Season opt-in unit (as a CAIR NOX Ozone Season unit) 
under Sec. 97.342 for the control period that includes the date on 
which the CAIR NOX Ozone Season opt-in unit becomes a CAIR 
NOX Ozone Season unit under Sec. 97.304:
    (A) The amount of CAIR NOX Ozone Season allowances 
otherwise allocated to the CAIR NOX Ozone Season opt-in unit 
(as a CAIR NOX Ozone Season unit) under Sec. 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 Season opt-in unit 
becomes a CAIR NOX Ozone Season unit under Sec. 97.304, 
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. 97.388  CAIR NOX Ozone Season allowance allocations to CAIR NOX Ozone 

Season opt-in units.

    (a) Timing requirements. (1) When the CAIR opt-in permit is issued 
under Sec. 97.384(e), the permitting authority will allocate CAIR 
NOX Ozone Season allowances to the CAIR NOX Ozone 
Season opt-in unit, and submit to the Administrator the allocation for 
the control period in which a CAIR NOX Ozone Season opt-in 
unit enters the CAIR NOX Ozone Season Trading Program under 
Sec. 97.384(g), in accordance with paragraph (b) or (c) of this 
section.
    (2) By no later than July 31 of the control period after the control 
period in which a CAIR NOX Ozone Season opt-in unit enters 
the CAIR NOX Ozone Season Trading Program under Sec. 
97.384(g) and July 31 of each year thereafter, the permitting authority 
will allocate CAIR NOX Ozone Season allowances to the CAIR 
NOX Ozone Season opt-in unit, and submit to the

[[Page 1026]]

Administrator the allocation for the control period that includes such 
submission deadline and in which the unit is a CAIR NOX Ozone 
Season opt-in unit, in accordance with paragraph (b) or (c) of this 
section.
    (b) Calculation of allocation. For each control period for which a 
CAIR NOX Ozone Season opt-in unit is to be allocated CAIR 
NOX Ozone Season allowances, the permitting authority will 
allocate in accordance with the following procedures, if provided in a 
State implementation plan revision submitted in accordance with Sec. 
51.123(ee)(3)(i), (ii), or (iii) of this chapter and approved by the 
Administrator:
    (1) The heat input (in mmBtu) used for calculating the CAIR 
NOX Ozone Season allowance allocation will be the lesser of:
    (i) The CAIR NOX Ozone Season opt-in unit's baseline heat 
input determined under Sec. 97.384(c); or
    (ii) The CAIR NOX Ozone Season opt-in unit's heat input, 
as determined in accordance with subpart HHHH of this part, for the 
immediately prior control period, except when the allocation is being 
calculated for the control period in which the CAIR NOX Ozone 
Season opt-in unit enters the CAIR NOX Ozone Season Trading 
Program under Sec. 97.384(g).
    (2) The NOX emission rate (in lb/mmBtu) used for 
calculating CAIR NOX Ozone Season allowance allocations will 
be the lesser of:
    (i) The CAIR NOX Ozone Season opt-in unit's baseline 
NOX emissions rate (in lb/mmBtu) determined under Sec. 
97.384(d) and multiplied by 70 percent; or
    (ii) The most stringent State or Federal NOX emissions 
limitation applicable to the CAIR NOX Ozone Season opt-in 
unit at any time during the control period for which CAIR NOX 
Ozone Season allowances are to be allocated.
    (3) The permitting authority will allocate CAIR NOX Ozone 
Season allowances to the CAIR NOX Ozone Season opt-in unit in 
an amount equaling 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 
nearest whole allowance as appropriate.
    (c) Notwithstanding paragraph (b) of this section and if the CAIR 
designated representative requests, and the permitting authority issues 
a CAIR opt-in permit (based on a demonstration of the intent to repower 
stated under Sec. 97.383 (a)(5)) providing for, allocation to a CAIR 
NOX Ozone Season opt-in unit of CAIR NOX Ozone 
Season allowances under this paragraph (subject to the conditions in 
Sec. Sec. 97.384(h) and 97.386(g)), the permitting authority will 
allocate to the CAIR NOX Ozone Season opt-in unit as follows, 
if provided in a State implementation plan revision submitted in 
accordance with Sec. 51.123(ee)(3)(i), (ii), or (iii) of this chapter 
and approved by the Administrator:
    (1) For each control period in 2009 through 2014 for which the CAIR 
NOX Ozone Season opt-in unit is to be allocated CAIR 
NOX Ozone Season allowances,
    (i) The heat input (in mmBtu) used for calculating CAIR 
NOX Ozone Season allowance allocations will be determined as 
described in paragraph (b)(1) of this section.
    (ii) The NOX emission rate (in lb/mmBtu) used for 
calculating CAIR NOX Ozone Season allowance allocations will 
be the lesser of:
    (A) The CAIR NOX Ozone Season opt-in unit's baseline 
NOX emissions rate (in lb/mmBtu) determined under Sec. 
97.384(d); or
    (B) The most stringent State or Federal NOX emissions 
limitation applicable to the CAIR NOX Ozone Season opt-in 
unit at any time during the control period in which the CAIR 
NOX Ozone Season opt-in unit enters the CAIR NOX 
Ozone Season Trading Program under Sec. 97.384(g).
    (iii) The permitting authority will allocate CAIR NOX 
Ozone 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 under 
paragraph (c)(1)(ii) of this section, divided by 2,000 lb/ton, and 
rounded to the nearest whole allowance as appropriate.
    (2) For each control period in 2015 and thereafter for which the 
CAIR NOX

[[Page 1027]]

Ozone Season opt-in unit is to be allocated CAIR NOX Ozone 
Season allowances,
    (i) The heat input (in mmBtu) used for calculating the CAIR 
NOX Ozone Season allowance allocations will be determined as 
described in paragraph (b)(1) of this section.
    (ii) The NOX emission rate (in lb/mmBtu) used for 
calculating the CAIR NOX Ozone Season allowance allocation 
will be the lesser of:
    (A) 0.15 lb/mmBtu;
    (B) The CAIR NOX Ozone Season opt-in unit's baseline 
NOX emissions rate (in lb/mmBtu) determined under Sec. 
97.384(d); or
    (C) The most stringent State or Federal NOX emissions 
limitation applicable to the CAIR NOX Ozone Season opt-in 
unit at any time during the control period for which CAIR NOX 
Ozone Season allowances are to be allocated.
    (iii) The permitting authority will allocate CAIR NOX 
Ozone 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 under 
paragraph (c)(2)(ii) of this section, divided by 2,000 lb/ton, and 
rounded to the nearest whole allowance as appropriate.
    (d) Recordation. If provided in a State implementation plan revision 
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 of the 
source that includes the CAIR NOX Ozone Season opt-in unit, 
the CAIR NOX Ozone Season allowances allocated by the 
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 CAIR 
NOX Ozone Season opt-in unit enters the CAIR NOX 
Ozone Season Trading Program under Sec. 97.384(g) and September 1 of 
each year thereafter, the Administrator will record, in the compliance 
account of the source that includes the CAIR NOX Ozone Season 
opt-in unit, the CAIR NOX Ozone Season allowances allocated 
by the permitting authority to the CAIR NOX Ozone Season opt-
in unit under paragraph (a)(2) of this section.



 Sec. Appendix A to Subpart IIII of Part 97--States With Approved State 

   Implementation Plan Revisions Concerning CAIR NOX Ozone 

                           Season Opt-in Units

    1. The following States have State Implementation Plan revisions 
under Sec. 51.123(ee)(3) of this chapter approved by the Administrator 
and establishing procedures providing for CAIR NOX Ozone 
Season opt-in units under subpart IIII of this part and allocation of 
CAIR NOX Ozone Season allowances to such units under Sec. 
97.388(b):
    Indiana
     Michigan
     North Carolina
     Ohio
     South Carolina
     Tennessee
    2. The following States have State Implementation Plan revisions 
under Sec. 51.123(ee)(3) of this chapter approved by the Administrator 
and establishing procedures providing for CAIR NOX Ozone 
Season opt-in units under subpart IIII of this part and allocation of 
CAIR NOX Ozone Season allowances to such units under Sec. 
97.388(c):
    Indiana
     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 FR 59487, Oct. 22, 
2007; 72 FR 72263, Dec. 20, 2007; 73 FR 6041, Feb. 1, 2008]

  Appendix A to Part 97--Final Section 126 Rule: EGU Allocations, 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

[[Page 1028]]

 
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
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

[[Page 1029]]

 
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
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

[[Page 1030]]

 
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......................  CAPE FEAR......................          2708  5                                   255
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

[[Page 1031]]

 
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
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

[[Page 1032]]

 
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
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

[[Page 1033]]

 
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
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

[[Page 1034]]

 
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
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

[[Page 1035]]

 
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
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

[[Page 1036]]

 
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
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

[[Page 1037]]

 
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
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

[[Page 1038]]

 
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
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

[[Page 1039]]

 
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 126 Rule: Non-EGU Allocations, 
                                2004-2007

----------------------------------------------------------------------------------------------------------------
                                                                                                         NOX
    State             County                      Plant                  Plant ID       Point ID     allocation
                                                                                                    for non-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
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
                                      OF MICHIGAN.
MI...........  Washtenaw...........  THE REGENTS OF THE UNIVERSITY   M0675            0002                    37
                                      OF MICHIGAN.
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

[[Page 1040]]

 
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
                                      ROANOKE RAP.
NC...........  Guilford............  CONE MILLS CORP--WHITE OAK      0863             004                     50
                                      PLANT.
NC...........  Cabarrus............  FIELDCREST--CANNON PLT 1        0006             001                     77
                                      KANNAPOLIS.
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
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.).

[[Page 1041]]

 
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 & RUBBER COMPANY  1677010193       B001                   101
OH...........  Summit..............  GOODYEAR TIRE & RUBBER COMPANY  1677010193       B002                   108
OH...........  Hamilton............  HENKEL CORP.--EMERY GROUP.....  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/KOBE
                                      STEEL--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
                                      TOLEDO REF.
OH...........  Lucas...............  SUN REFINING & MARKETING CO,    0448010246       B046                    34
                                      TOLEDO REF.
OH...........  Lucas...............  SUN REFINING & MARKETING CO,    0448010246       B047                    18
                                      TOLEDO REF.
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--PITTSBURGH   0022             015                     25
                                      WORKS.
PA...........  Allegheny...........  LTV STEEL COMPANY--PITTSBURGH   0022             017                     15
                                      WORKS.
PA...........  Allegheny...........  LTV STEEL COMPANY--PITTSBURGH   0022             019                     29
                                      WORKS.
PA...........  Allegheny...........  LTV STEEL COMPANY--PITTSBURGH   0022             021                     55
                                      WORKS.
PA...........  Montgomery..........  MERCK SHARP & DOHME...........  0028             039                    126
PA...........  Westmoreland........  MONESSEN INC..................  0007             031                      0
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

[[Page 1042]]

 
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
                                      (FORMERLY UNION 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 P PLANT.
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
                                      CHARLESTON PLANT.
WV...........  Kanawha.............  UNION CARBIDE--SOUTH            0003             0B6                     92
                                      CHARLESTON PLANT.
WV...........  Kanawha.............  UNION CARBIDE--SOUTH            0003             0B7                     45
                                      CHARLESTON PLANT.
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]



   Sec. Appendix C to Part 97--Final Section 126 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

[[Page 1043]]

 
WV..............................................................          26,859           2,184          29,043
                                                                 -----------------------------------------------
    Total.......................................................         265,078          24,905         289,983
----------------------------------------------------------------------------------------------------------------



  Sec. Appendix D to Part 97--Final Section 126 Rule: 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 1045]]



                              FINDING AIDS




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

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 1047]]



                    Table of CFR Titles and Chapters




                      (Revised as of July 1, 2009)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--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 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 100--
                199)
        II  Office of Management and Budget Circulars and Guidance 
                (200--299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       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)
      XIII  Department of Commerce (Parts 1300--1399)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1880--1899)
      XXII  Corporation for National and Community Service (Parts 
                2200--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 (Parts 
                2600--2699)
     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)
      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)

[[Page 1048]]

      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
    XXXVII  Peace Corps (Parts 3700--3799)

                        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 (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--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 Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--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)

[[Page 1049]]

     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)
       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 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--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 (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--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 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--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 Personnel Management) (Parts 
                9700--9799)
      XCIX  Department of Defense Human Resources Management and 
                Labor Relations Systems (Department of Defense--
                Office of Personnel Management) (Parts 9900--9999)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture

[[Page 1050]]

         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--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 (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities 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 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--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 (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)

[[Page 1051]]

    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)
         L  Rural Business-Cooperative Service, Rurual Housing 
                Service, and Rural Utilities Service, Department 
                of Agriculture (Parts 5000--5099)

                    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 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--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 (Parts 1800--1899)

[[Page 1052]]

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)
        II  Election Assistance Commission (Parts9400--9499)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       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 (Parts 500--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 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
       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 of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (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 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

[[Page 1053]]

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--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 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     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 (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)

[[Page 1054]]

      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 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Bureau of Immigration and Customs Enforcement, 
                Department of Homeland 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 (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--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 and Training Service, Department of 
                Labor (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--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 (Parts 400--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)

[[Page 1055]]

         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Millenium Challenge Corporation (Parts 1300--1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--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 Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                HousingCommissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)

[[Page 1056]]

      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 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)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--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 Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--899)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)

[[Page 1057]]

       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--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 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)

[[Page 1058]]

       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            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 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--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 (Parts 
                1700--1799)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records 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 (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--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)

[[Page 1059]]

        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (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 (Parts 600--699)
       VII  Office of Educational Research and Improvmeent, 
                Department of Education [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 
                (Parts 1--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 (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

[[Page 1060]]

             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 (Parts 
                301--399)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--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 (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
            Chapters 62--100 [Reserved]
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
            Chapters 103--104 [Reserved]
       105  General Services Administration (Parts 105-1--105-999)

[[Page 1061]]

       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
            Chapters 129--200 [Reserved]
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                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 
                (Parts 304-1--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 
                of Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10010)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

[[Page 1062]]

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--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 and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--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 (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)

[[Page 1063]]

        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       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 Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--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 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement [Reserved]

[[Page 1064]]

        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation [Reserved]
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--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 of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)

[[Page 1065]]

         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--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 1067]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of July 1, 2009)

                                                  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, L
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV, L
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII, L
  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 1068]]

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 Who Are
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 Secretary for
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 of Columbia
Customs and Border Protection Bureau              19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII

[[Page 1069]]

  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
  Human Resources Management and Labor Relations  5, XCIX
       Systems
  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 Supervision Agency 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
Election Assistance Commission                    11, II
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

[[Page 1070]]

  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  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
     Acquisition Regulation
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 Agency                    12, XII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal 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

[[Page 1071]]

General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102
  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
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
Housing and Urban Development, Department of      2, XXIV; 5, LXV; 24, 
                                                  Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  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 Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, 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
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, 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

[[Page 1072]]

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 and Records Administration
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 and Mexico, 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 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
Investment Security, Office of                    31, VIII
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

[[Page 1073]]

  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
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary 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
     National Environmental Policy Foundation
Museum and Library Services, Institute of         2, XXXI
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

[[Page 1074]]

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 Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
Natural Resources Conservation Service            7, VI
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
  Human Resources Management and Labor Relations  5, XCIX
       Systems, Department of Defense
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  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
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, L
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV, L
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII, L
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 Security Council
[[Page 1075]]

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
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
  Investment Security, 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 Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8

[[Page 1076]]

Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary 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 1077]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations that were 
made by documents published in the Federal Register since January 1, 
2001, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
Title 40 was established at 36 FR 12213, June 29, 1971. For the period 
before January 1, 2001, see the ``List of CFR Sections Affected, 1964-
1972, 1973-1985, and 1986-2000'' 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) correctly revised; 
        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 1078]]

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 text amended............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 text revised............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 1079]]

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 text 
        amended; 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 text 
        revised; 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 1080]]

                                  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) introductory text, 
        (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 text revised
                                                                   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 1081]]

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 1082]]

                                  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) redesignated as 
        (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) designation and 
        (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 1083]]

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) designation and 
        (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) introductory text, (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 1084]]

97.140--97.144 (Subpart EE) Added..................................25396
97.143 (c) introductory text and (2) introductory text amended.....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 A amended.....46394, 56920, 57215, 
                                                            58552, 59487
    Regulation at 72 FR 58552 withdrawn............................68515
97.302 Amended.....................................................59207
97.301--97.308 (Subpart AAAA) Appendix A amended...................72262
97.340--97.343 (Subpart EEEE) Appendix A amended....46394, 52293, 55068, 
                  55672, 56920, 57215, 58546, 58553, 59487, 71579, 72263

[[Page 1085]]

    Appendix A correctly amended...................................55659
    Regulation at 72 FR 58553 withdrawn............................68515
97.380--97.388 (Subpart IIII) Appendix A amended....46394, 56920, 57215, 
                                                     58553, 59487, 72263
    Regulation at 72 FR 58553 withdrawn............................68515

                                  2008

40 CFR
                                                                   73 FR
                                                                    Page
Chapter I
89.6 (b)(2) and (3) correctly reinstated; CFR correction...........35591
89.614 Removed.....................................................59179
89.916 Added; eff. 7-7-08...................................25196, 37194
89.1003 (b)(7)(iii), (iv) and (v) revised..........................59179
90.1 (h) added......................................................3612
90.1 (d)(1) and (5) revised; (d)(8) added..........................59179
90.2 (d) and (e) added.............................................59179
90.3 Amended.......................................................59179
90.101 Revised.....................................................59179
90.107 (d)(12) added................................................3612
90.107 (d)(11)(ii) and (12) revised; (d)(13) and (14) added........59180
90.114 (c)(7) revised; (g) added....................................3613
90.114 (g) revised.................................................59180
90.116 (d)(5) revised; (e)(1) removed..............................59180
90.120 (b)(3) added................................................59180
90.127 Added.......................................................59180
90.128 Added.......................................................59181
90.129 Added.......................................................59181
90.201 Revised...............................................3613, 59181
90.210 (i) added...................................................59181
90.426 (b), (c)(1), (d) and (i) revised; (j) added.................59182
90.601 (c) added...................................................59182
90.615 Revised.....................................................59182
90.1003 (b)(3) revised.............................................59182
90.1007 Added......................................................59182
90.1103 (e) added..................................................59182
91.1 (d) added.....................................................59183
91.101 Revised.....................................................59183
91.107 (d)(12) added...............................................59183
91.119 (b)(3) added................................................59183
91.707 Removed.....................................................59183
91.1013 Added......................................................59183
91.1103 (b)(3) revised.............................................59183
92.1 (a) introductory text revised; (e) added; eff. 7-7-08........25196, 
                                                                   37194
92.2 Amended; eff. 7-7-08...................................25196, 37194
92.9 (b)(1)(ii) revised............................................59183
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
92.304 (n)(1) revised..............................................59183
92.501 (c) added; eff. 7-7-08...............................25197, 37195
92.806 Removed.....................................................59183
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 text revised; (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
94.201 Revised.....................................................59184
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
94.806 Removed.....................................................59184
94.914 Added; eff. 7-7-08...................................25198, 37197
97.140--97.144 (Subpart EE) Appendix A amended......................6040

[[Page 1086]]

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

                                  2009

   (Regulations published from January 1, 2009, through July 1, 2009)

40 CFR
                                                                   74 FR
                                                                    Page
Chapter I
89.1 (b)(5) revised.................................................8423
90.611 Revised......................................................8423


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