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(continued) ourts of the United States have jurisdiction to restrain violations of §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.

§ 90.1006 Penalties.
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(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 §90.1003(a)(1), (a)(4), or (a)(5), or a manufacturer or dealer who violates §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 §90.1003(a)(3)(i) or any person who violates §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 §90.1003(a)(1), (a)(3)(i), (a)(4), or (a)(5) constitutes a separate offense with respect to each nonroad engine.

(4) A violation with respect to §90.1003(a)(3)(ii) constitutes a separate offense with respect to each part or component. Each day of a violation with respect to §90.1003(a)(6) constitutes a separate offense.

(5) A person who violates §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 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]

Subpart L—Emission Warranty and Maintenance Instructions
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§ 90.1101 Applicability.
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The requirements of subpart L are applicable to all nonroad engines and vehicles subject to the provisions of subpart A of part 90.

§ 90.1102 Definitions.
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The definitions of subpart A of this part apply to this subpart.

§ 90.1103 Emission warranty, warranty period.
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(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 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 §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.

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

§ 90.1104 Furnishing of maintenance instructions to ultimate purchaser.
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(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 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
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Source: 64 FR 15254, Mar. 30, 1999, unless otherwise noted.

§ 90.1201 Applicability.
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The provisions of this subpart from §90.1201 through §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]

§ 90.1202 Definitions.
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For the purposes of this subpart, except as otherwise provided, the definitions in subparts A and C of this part apply to this subpart.

§ 90.1203 Voluntary Manufacturer In-Use Testing Program.
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(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 §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 §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 §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.

§ 90.1204 Maintenance, aging and testing of engines.
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(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.

(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 §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 §90.121.

§ 90.1205 In-use test program reporting requirements.
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(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.

§ 90.1206 [Reserved]
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§ 90.1207 Entry and access.
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(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 §90.705 (b) and also to inspect and make copies of records related to engine aging (service accumulation) and maintenance.

(c) The provisions of §90.705(c), (d), (e), (f) and (g) also apply to entry and access under this subpart.

§§ 90.1208-90.1249 [Reserved]