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(continued)
(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 §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 §§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 §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.
§ 90.712 Request for public hearing.
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(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 §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 §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 §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.
§ 90.713 Administrative procedures for public hearing.
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The administrative procedures for a public hearing requested under this subpart shall be those procedures set forth in the regulations found at §§90.513 through 90.516. References in §90.513 to §90.511(j), §90.512(c)(2), §90.511(e), §90.512, §90.511(d), §90.503, §90.512(c) and §90.512(b) shall be deemed to mean §90.711(j), §90.712(c)(2), §90.711(e), §90.712, §90.711(d), §90.703, and §90.712(c) and §90.712(b), respectively. References to “test orders” in §90.513 are not applicable.
Subpart I—Emission-Related Defect Reporting Requirements, Voluntary Emission Recall Program, Ordered Recalls
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§ 90.801 Applicability.
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(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 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]
§ 90.802 Definitions.
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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]
§ 90.803 Emission defect information report.
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(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]
§ 90.804 Voluntary emissions recall.
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(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:
(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.
§ 90.805 Reports, voluntary recall plan filing, record retention.
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(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]
§ 90.806 Responsibility under other legal provisions preserved.
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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.
§ 90.807 Disclaimer of production warranty applicability.
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(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 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.
§ 90.808 Ordered recall provisions.
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(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 §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 §90.804. Such manufacturer is subject to the reporting and recordkeeping requirements of §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
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§ 90.901 Applicability.
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The requirements of subpart J are applicable to all nonroad engines and vehicles subject to the provisions of subpart A of part 90.
§ 90.902 Definitions.
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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 §90.1003.
Export exemption means an exemption granted under §90.1004(b) for the purpose of exporting new nonroad engines.
National security exemption means an exemption granted under §90.1004(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 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 §90.1004(b) for the purpose of research, investigations, studies, demonstrations or training, but not including national security.
§ 90.903 Exclusions, application of section 216 (10) and (11) of the Act.
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(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]
§ 90.904 Who may request an exemption.
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(a) Any person may request a testing exemption under §90.905.
(b) Any nonroad engine manufacturer may request a national security exemption under §90.908.
(c) For nonroad engine manufacturers, nonroad engines manufactured for export purposes are exempt without application, subject to the provisions of §90.909.
(d) For eligible manufacturers, as determined by §90.906, manufacturer-owned nonroad engines are exempt without application, subject to the provisions of §90.906.
(e) For any person, display nonroad engines are exempt without application, subject to the provisions of §90.907.
§ 90.905 Testing exemption.
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(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 §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 §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 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 §90.1004(b).
[60 FR 34598, July 3, 1995, as amended at 64 FR 15252, Mar. 30, 1999]
§ 90.906 Manufacturer-owned exemption and precertification exemption.
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(a) Any manufacturer owned nonroad engine, as defined by §90.902, is exempt from §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 §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]
§ 90.907 Display exemption.
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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.
§ 90.908 National security exemption.
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(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]
§ 90.909 Export exemptions.
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(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 §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 §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]
§ 90.910 Granting of exemptions.
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(a) If upon completion of the review of an exemption request made pursuant to §90.905 or §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 §90.1003(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 §90.1003 are applicable, liable to suit under sections 204 and 205 of the Act.
§ 90.911 Submission of exemption requests.
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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]
§ 90.912 Treatment of confidential information.
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The provisions for treatment of confidential information described in §90.4 apply to this subpart.
§ 90.913 Exemption for engines certified to standards for large SI engines.
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(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 §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
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§ 90.1001 Applicability.
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The requirements of subpart K are applicable to all nonroad engines and vehicles subject to the provisions of subpart A of part 90.
§ 90.1002 Definitions.
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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.
§ 90.1003 Prohibited acts.
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(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 §90.1004.
(ii) For a person to fail or refuse to permit entry, testing or inspection authorized under §§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 §§90.119, 90.504, 90.703, 90.1004, 90.1204.
(iv) For a person to fail to establish or maintain records as required under §§90.209, 90.704, 90.805, or 90.1004.
(v) For a person to fail to submit a remedial plan as required under §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 §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 §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 §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 §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) 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 §90.1003(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 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 §90.3. Nonroad vehicle and equipment manufacturers may continue to use noncertified nonroad engines built prior to the applicable implementation date of 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 §§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 §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 §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 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 §90.107(d) and approved at the time of certification pursuant to §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]
§ 90.1004 General enforcement provisions.
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(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 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 §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 §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 §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.
§ 90.1005 Injunction proceedings for prohibited acts.
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(a) The district courts of the United States have jurisdiction to restrain violations of §90.1003. (continued)