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(continued)

(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.

§ 94.405 Alternative report formats.
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(a) Any manufacturer may submit a plan for making either of the reports required by §§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.

§ 94.406 Reports filing: record retention.
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(a) The reports required by §§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 §§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.

§ 94.407 Responsibility under other legal provisions preserved.
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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.

§ 94.408 Disclaimer of production warranty applicability.
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(a) The act of filing an Emission Defect Information Report pursuant to §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
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§ 94.501 Applicability.
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(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.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68346, Nov. 8, 2002]

§ 94.502 Definitions.
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The definitions in Subpart A of this part apply to this subpart.

§ 94.503 General requirements.
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(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 §94.505 and the test procedures specified in §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 §94.8(e).

(d) If you certify an engine family with carryover emission data, as described in §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]

§ 94.504 Right of entry and access.
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(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 §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.

§ 94.505 Sample selection for testing.
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(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 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]

§ 94.506 Test procedures.
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(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 §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 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 §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.

§ 94.507 Sequence of testing.
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(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]

§ 94.508 Calculation and reporting of test results.
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(a) Manufacturers shall calculate initial test results using the applicable test procedure specified in §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 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 §94.510(a), a description of the remedy and test results for all retests as required by §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]

§ 94.509 Maintenance of records; submittal of information.
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(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 §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, 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.

§ 94.510 Compliance with criteria for production line testing.
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(a) A failed engine is one whose final test results pursuant to §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]

§ 94.511 [Reserved]
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§ 94.512 Suspension and revocation of certificates of conformity.
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(a) The certificate of conformity is suspended with respect to any engine that fails a production line test pursuant to §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 §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.

(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 §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 §§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 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 §§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 §94.215, and prior to the commencement of a hearing under §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.

§ 94.513 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 §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 §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 §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

(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.

§ 94.514 Administrative procedures for public hearing.
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(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 §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 §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 §94.513 to challenge a suspension of a certificate of conformity for the reason(s) specified in §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 §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 §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 §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 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 §94.513 will be scheduled to commence within 14 days of receipt of the request for a hearing.

§ 94.515 Hearing procedures.
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The procedures provided in 40 CFR 86.1014–84(i) through (s) apply for hearings requested pursuant to §94.513 regarding suspension, revocation, or voiding of a certificate of conformity.

§ 94.516 Appeal of hearing decision.
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The procedures provided in 40 CFR 86.1014–84 (t) through (aa) apply for appeals filed with respect to hearings held pursuant to §94.515.

§ 94.517 Treatment of confidential information.
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Except for information required by §94.508(e)(2) and quarterly emission test results described in §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 §94.4 apply to the information required by §94.508(e)(2) and quarterly emission test results described in §94.508(e).

Subpart G [Reserved]
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Subpart H—Recall Regulations
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§ 94.701 Applicability.
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The requirements of this subpart are applicable to all engines subject to the provisions of this part.

§ 94.702 Definitions.
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The definitions in Subpart A of this part apply to this subpart.

§ 94.703 Applicability of 40 CFR part 85, subpart S.
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(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”.

Subpart I—Importation of Nonconforming Engines
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§ 94.801 Applicability.
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(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 §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]

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

§ 94.803 Admission.
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(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 §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.

§ 94.804 Exemptions.
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(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 §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 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 §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 §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 §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 §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 §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.

§ 94.805 Prohibited acts; penalties.
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(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 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 §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 §94.1106. In addition to the penalty provided in the Act and §94.1106, where applicable, a person orentity who imports an engine under the exemption provisions of §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. (continued)