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§ 94.806 Importation of partially complete engines.
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The provisions of 40 CFR 1068.330 apply for importation of partially complete engines, or engines that will be modified for applications other than those covered by this part 94.

[70 FR 40459, July 13, 2005]

Subpart J—Exclusion and Exemption Provisions
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§ 94.901 Purpose and applicability.
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The provisions of this subpart identify excluded engines (i.e., engines not covered by the Act) and allow for the exemption of engines from certain provisions of this part. The applicability of the exclusions is described in §94.903, and the applicability of the exemption allowances is described in §§94.904 through 94.909.

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

§ 94.903 Exclusions.
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(a) Upon written request with supporting documentation, EPA will make written determinations as to whether certain engines are excluded from applicability of this part. Any engines that are determined to be excluded are not subject to the regulations under this part. Requests to determine whether certain engines are excluded should be sent to the Designated Officer.

(b) EPA will maintain a list of models of engines that have been determined to be excluded from coverage under this part. This list will be available to the public and may be obtained by writing to the address in paragraph (a) of this section.

(c) In addition to the engines excluded in paragraph (a) of this section, certain engines are not subject to the requirements and prohibitions of this part because they are excluded from the definitions of “marine engine” in §94.2.

§ 94.904 Exemptions.
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(a) Except as specified otherwise in this subpart, the provisions of §§94.904 through 94.913 exempt certain new engines from the standards, other requirements, and prohibitions of this part, except for the requirements of this subpart and the requirements of §94.1104. Additional requirements may apply for imported engines; these are described in subpart I of this part.

(b)(1) Any person may request a testing exemption subject to the provisions of §94.905.

(2) Any engine manufacturer may request a national security exemption subject to the provisions of §94.908.

(3) Engines manufactured for export purposes are exempt without application, subject to the provisions of §94.909, except as otherwise specified by §94.909.

(4) Manufacturer-owned engines are exempt without application, subject to the provisions of §94.906(a).

(5) Display engines are exempt without application, subject to the provisions of §94.906(b). This does not apply to imported engines (see §94.804).

(6) Engines used solely for competition are exempt, subject to the provisions of §94.906(c).

(c) If you want to take an action with respect to an exempted or excluded engine that is prohibited by the exemption or exclusion, such as selling it, you need to certify the engine. We will issue a certificate of conformity if you send us an application for certification showing that you meet all the applicable requirements from this part 94 and pay the appropriate fee. Also, in some cases, we may allow manufacturers to modify the engine as needed to make it identical to engines already covered by a certificate. We would base such an approval on our review of any appropriate documentation. These engines must have emission control information labels that accurately describe their status.

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9787, Feb. 28, 2003; 70 FR 40459, July 13, 2005]

§ 94.905 Testing exemption.
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(a)(1) The Administrator may exempt from the standards and/or other requirements and prohibitions of this part new engines that are being used solely for the purpose of conducting a test program. Any person requesting an exemption for the purpose of conducting a test program must demonstrate the following:

(i) That the proposed test program has a purpose which constitutes an appropriate basis for an exemption in accordance this section;

(ii) That the proposed test program necessitates the granting of an exemption;

(iii) That the proposed test program exhibits reasonableness in scope; and

(iv) That the proposed test program exhibits a degree of oversight and control consonant with the purpose of the test program and EPA's monitoring requirements.

(2) Paragraphs (b), (c), (d), and (e) of this section describe what constitutes a sufficient demonstration for each of the four elements identified in paragraphs (a)(1)(i) through (iv) of this section.

(b) With respect to the purpose of the proposed test program, an appropriate purpose would be research, investigations, studies, demonstrations, technology development, or training, but not national security. A concise statement of purpose is a required item of information.

(c) With respect to the necessity that an exemption be granted, necessity arises from an inability to achieve the stated purpose in a practicable manner without performing or causing to be performed one or more of the prohibited acts under §94.1103. In appropriate circumstances, time constraints may be a sufficient basis for necessity, but the cost of certification alone, in the absence of extraordinary circumstances, is not a basis for necessity.

(d) With respect to reasonableness, a test program must exhibit a duration of reasonable length and affect a reasonable number of engines. In this regard, required items of information include:

(1) An estimate of the program's duration; and

(2) The maximum number of engines involved.

(e) With respect to control, the test program must incorporate procedures consistent with the purpose of the test and be capable of affording EPA monitoring capability. As a minimum, required items of information include:

(1) The technical nature of the testing;

(2) The location(s) of the testing;

(3) The time or work duration of the testing;

(4) The ownership arrangement with regard to the engines involved in the testing;

(5) The intended final disposition of the engines;

(6) The manner in which the engine identification numbers will be identified, recorded, and made available; and

(7) The means or procedure whereby test results will be recorded.

(f) A manufacturer of new engines may request a testing exemption to cover engines intended for use in test programs planned or anticipated over the course of a subsequent two-year period. Unless otherwise required by the Director, Engine Programs and Compliance Division, a manufacturer requesting such an exemption need only furnish the information required by paragraphs (a)(1) and (d)(2) of this section along with a description of the recordkeeping and control procedures that will be employed to assure that the engines are used for purposes consistent with paragraph (a) of this section.

(g) For engines being used for the purpose of developing a fundamentally new emission control technology related either to an alternative fuel or an aftertreatment device, the Administrator may exempt the engine from some or all of the applicable standards of this part for the full useful life of the engine, subject to the provisions of paragraphs (a) through (f) of this section.

§ 94.906 Manufacturer-owned exemption, display exemption, and competition exemption.
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(a) Manufacturer-owned exemption. Any manufacturer-owned engine, as defined by §94.2, is exempt from §94.1103, without application, if the manufacturer complies with the following terms and conditions:

(1) The manufacturer must establish, maintain, and retain the following adequately organized and indexed information on each exempted engine:

(i) engine identification number;

(ii) Use of the engine on exempt status; and

(iii) Final disposition of any engine removed from exempt status.

(2) The manufacturer must provide right of entry and access to these records to EPA Enforcement Officers as outlined in §94.208.

(3) The manufacturer must permanently affix a label to each engine on exempt status, unless the requirement is waived or an alternate procedure is approved by the Director, Engine Programs and Compliance Division. This label should:

(i) Be affixed in a readily visible portion of the engine;

(ii) Be attached in such a manner that cannot be removed without destruction or defacement;

(iii) State in the English language and in block letters and numerals of a color that contrasts with the background of the label, the following information:

(A) The label heading “Emission Control Information”;

(B) Full corporate name and trademark of manufacturer;

(C) Engine displacement, engine family identification, and model year of engine; or person of office to be contacted for further information about the engine;

(D) The statement “This engine is exempt from the prohibitions of 40 CFR 94.1103.”

(4) No provision of paragraph (a)(3) of this section prevents a manufacturer from including any other information it desires on the label.

(5) The engine is not used in revenue-generating service, or sold.

(b) Display exemption. An uncertified engine that is to be used solely for display purposes, and that will only be operated incident and necessary to the display purpose, and will not be sold unless an applicable certificate of conformity has been obtained for the engine, is exempt without request from the standards of this part. This does not apply to imported engines (see §94.804).

(c) Competition exemption. The Administrator may exempt, upon request, engines that are intended by the manufacturer to be used solely for competition. Engines that are modified after they have been placed into service and are used solely for competition are exempt without request.

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9787, Feb. 28, 2003]

§ 94.907 Engine dressing exemption.
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(a) General provisions. If you are an engine manufacturer, this section allows you to introduce new marine engines into commerce if they are already certified to the requirements that apply to compression-ignition engines under 40 CFR parts 85 and 86 or 40 CFR part 89, 92 or 1039 for the appropriate model year. If you comply with all the provisions of this section, we consider the certificate issued under 40 CFR part 86, 89, 92, or 1039 for each engine to also be a valid certificate of conformity under this part 94 for its model year, without a separate application for certification under the requirements of this part 94.

(b) Boat-builder provisions. If you are not an engine manufacturer, you may install an engine certified for the appropriate model year under 40 CFR part 86, 89, 92, or 1039 in a marine vessel as long as you do not make any of the changes described in paragraph (d)(3) of this section and you meet the requirements of paragraph (e) of this section. If you modify the non-marine engine in any of the ways described in paragraph (d)(3) of this section, we will consider you a manufacturer of a new marine engine. Such engine modifications prevent you from using the provisions of this section.

(c) Liability. Engines for which you meet the requirements of this section are exempt from all the requirements and prohibitions of this part, except for those specified in this section. Engines exempted under this section must meet all the applicable requirements from 40 CFR parts 85 and 86 or 40 CFR part 89, 92, or 1039. This paragraph (c) applies to engine manufacturers, boat builders who use such an engine, and all other persons as if the engine were used in its originally intended application. The prohibited acts of §94.1103(a)(1) apply to these new engines and vessels; however, we consider the certificate issued under 40 CFR part 86, 89, 92, or 1039 for each engine to also be a valid certificate of conformity under this part 94 for its model year. If we make a determination that these engines do not conform to the regulations during their useful life, we may require you to recall them under this part 94 or under 40 CFR part 85, 89, 92, or 1039.

(d) Specific requirements. If you are an engine manufacturer and meet all the following criteria and requirements regarding your new marine engine, the engine is eligible for an exemption under this section:

(1) You must produce it by marinizing an engine covered by a valid certificate of conformity from one of the following programs:

(i) Heavy-duty highway engines (40 CFR part 86).

(ii) Land-based nonroad diesel engines (40 CFR part 89 or 1039).

(iii) Locomotive engines (40 CFR part 92).

(2) The engine must have the label required under 40 CFR part 86, 89, 92, or 1039.

(3) You must not make any changes to the certified engine that could reasonably be expected to increase its emissions. For example, if you make any of the following changes to one of these engines, you do not qualify for the engine dressing exemption:

(i) Change any fuel system parameters from the certified configuration, or change, remove, or fail to properly install any other component, element of design, or calibration specified in the engine manufacturer's application for certification. This includes aftertreatment devices and all related components.

(ii) Replacing an original turbocharger, except that small-volume manufacturers of recreational engines may replace an original turbocharger with one that matches the performance of the original turbocharger.

(iii) Modify or design the marine engine cooling or aftercooling system so that temperatures or heat rejection rates are outside the original engine manufacturer's specified ranges.

(4) You must show that fewer than 50 percent of the engine family's total sales in the United States are used in marine applications. This includes engines used in any application, without regard to which company manufactures the vessel or equipment. Show this as follows:

(i) If you are the original manufacturer of the engine, base this showing on your sales information.

(ii) In all other cases, you must get the original manufacturer of the engine to confirm this based on its sales information.

(e) If you are an engine manufacturer or boat builder using this exemption, you must do all of the following:

(1) Make sure the original engine label will remain clearly visible after installation in the vessel.

(2) Add a permanent supplemental label to the engine in a position where it will remain clearly visible after installation in the vessel. In your engine label, do the following:

(i) Include the heading: “Marine Engine Emission Control Information”.

(ii) Include your full corporate name and trademark.

(iii) State: “This engine was marinized without affecting its emission controls.”

(iv) State the date you finished marinizing the engine (month and year).

(3) Send a signed letter to the Designated Officer by the end of each calendar year (or less often if we tell you) with all the following information:

(i) Identify your full corporate name, address, and telephone number.

(ii) List the engine models for which you expect to use this exemption in the coming year and describe your basis for meeting the sales restrictions of paragraph (d)(4) of this section.

(iii) State: “We prepare each listed engine model for marine application without making any changes that could increase its certified emission levels, as described in 40 CFR 94.907.”

(f) Engine inventories. In general you may use up your inventory of engines that are not certified to new marine emission standards if they were originally manufactured before the date of the new standards. However, stockpiling these engines is a violation of §94.1103(a)(1)(i)(A).

(g) Failure to comply. If your engines do not meet the criteria listed in paragraph (d) of this section, they will be subject to the standards, requirements, and prohibitions of this part 94 and the certificate issued under 40 CFR part 86, 89, 92, or 1039 will not be deemed to also be a certificate issued under this part 94. Introducing these engines into commerce without a valid exemption or certificate of conformity under this part violates the prohibitions in 40 CFR 94.1103(a)(1).

(h) Data submission. (1) If you are the original manufacturer and marinizer of an exempted engine, you must send us emission test data on the appropriate marine duty cycles. You can include the data in your application for certification or in the letter described in paragraph (e)(3) of this section.

(2) If you are the original manufacturer of an exempted engine that is marinized by a post-manufacture marinizer, you may be required to send us emission test data on the appropriate marine duty cycles. If such data are requested you will be allowed a reasonable amount of time to collect the data.

(i) Participation in averaging, banking and trading. Engines adapted for marine use under this section may not generate or use emission credits under this part 94. These engines may generate credits under the ABT provisions in 40 CFR part 86, 89, 92, or 1039, as applicable. These engines must use emission credits under 40 CFR part 86, 89, 92, or 1039 as applicable if they are certified to an FEL that exceeds an applicable standard.

(j) Operator requirements. The requirements for vessel manufacturers, owners, and operators in subpart K of this part apply to these engines whether they are certified under this part 94 or another part as allowed by this section.

[70 FR 40459, July 13, 2005]

§ 94.908 National security exemption.
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(a)(1) Any marine engine, otherwise subject to this part, that is used in a vessel that exhibits substantial features ordinarily associated with military combat such as armor, permanently affixed weaponry, specialized electronic warfare systems, unique stealth performance requirements, and/or unique combat maneuverability requirements and which will be owned and/or used by an agency of the federal government with the responsibility for national defense, will be exempt from the regulations in this subpart for reasons of national security. No request for this exemption is necessary.

(2) Manufacturers may request a national security exemption for any marine engine, otherwise subject to this part, which does not meet the conditions described in paragraph (a)(1) of this section. A manufacturer requesting a national security exemption must state the purpose for which the exemption is required and the request must be endorsed by an agency of the federal government charged with responsibility for national defense.

(b) EPA will maintain a list of models of marine engines (and the vessels which use them) that have been granted a national security exemption under paragraph (a)(2) of this section. This list will be available to the public and may be obtained by writing to the Designated Officer.

(c) Manufacturers must add a legible label, written in block letters in English, to each engine exempted under this section. The label must be permanently secured to a readily visible part of the engine needed for normal operation and not normally requiring replacement, such as the engine block. This label must include at least the following items:

(1) The label heading “EMISSION CONTROL INFORMATION”.

(2) Your corporate name and trademark.

(3) Engine displacement, engine family identification (as applicable), and model year of the engine or whom to contact for further information.

(4) The statement “THIS ENGINE HAS AN EXEMPTION FOR NATIONAL SECURITY UNDER 40 CFR 94.908.”.

[64 FR 73331, Dec. 29, 1999, as amended at 69 FR 39213, June 29, 2004]

§ 94.909 Export exemptions.
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(a) A new engine intended solely for export, and so labeled or tagged on the outside of any container and on the engine, is subject to the provisions of §94.1103, unless the importing country has new marine engine emission standards which differ from EPA standards.

(b) For the purpose of paragraph (a) of this section, a country having no standards whatsoever is deemed to be a country having emission standards which differ from EPA standards.

(c) It is a condition of any exemption for the purpose of export under paragraph (a) of this section, that such exemption is void ab initio with respect to a new engine intended solely for export, where such engine is sold, or offered for sale, to an ultimate purchaser or otherwise distributed or introduced into commerce in the United States for purposes other than export.

§ 94.910 Granting of exemptions.
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(a) If upon completion of the review of an exemption request made pursuant to §94.905 or §94.908, EPA determines it is appropriate to grant such an exemption, a memorandum of exemption is to be prepared and submitted to the person requesting the exemption. The memorandum is to set forth the basis for the exemption, its scope, and such terms and conditions as are deemed necessary. Such terms and conditions generally include, but are not limited to, agreements by the applicant to conduct the exempt activity in the manner described to EPA, create and maintain adequate records accessible to EPA at reasonable times, employ labels for the exempt engines setting forth the nature of the exemption, take appropriate measures to assure that the terms of the exemption are met, and advise EPA of the termination of the activity and the ultimate disposition of the engines.

(b) Any exemption granted pursuant to paragraph (a) of this section is deemed to cover any subject engine only to the extent that the specified terms and conditions are complied with. A breach of any term or condition causes the exemption to be void ab initio with respect to any engine. Consequently, the causing or the performing of an act prohibited under §94.1103(a)(1) or (a)(3), other than in strict conformity with all terms and conditions of this exemption, renders the person to whom the exemption is granted, and any other person to whom the provisions of §94.1103(a) are applicable, liable to suit under sections 204 and 205 of the Act.

§ 94.911 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 the Designated Officer.

§ 94.912 Optional certification to land-based standards for auxiliary marine engines.
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This section applies to auxiliary marine engines that are identical to certified land-based engines. See §94.907 for provisions that apply to propulsion marine engines or auxiliary marine engines that are modified for marine applications.

(a) General provisions. If you are an engine manufacturer, this section allows you to introduce new marine engines into commerce if they are already certified to the requirements that apply to compression-ignition engines under 40 CFR part 89 or 1039 for the appropriate model year. If you comply with all the provisions of this section, we consider the certificate issued under 40 CFR part 86 or 1039 for each engine to also be a valid certificate of conformity under this part 94 for its model year, without a separate application for certification under the requirements of this part 94.

(b) Boat builder provisions. If you are not an engine manufacturer, you may install an engine certified for land-based applications in a marine vessel as long as you meet all the qualifying criteria and requirements specified in paragraphs (d) and (e) of this section. If you modify the non-marine engine, we will consider you a manufacturer of a new marine engine. Such engine modifications prevent you from using the provisions of this section.

(c) Liability. Engines for which you meet the requirements of this section are exempt from all the requirements and prohibitions of this part, except for those specified in this section. Engines exempted under this section must meet all the applicable requirements from 40 CFR part 89 or 1039. This paragraph (c) applies to engine manufacturers, boat builders who use such an engine, and all other persons as if the engine were used in its originally intended application. The prohibited acts of §94.1103(a)(1) apply to these new engines and vessels; however, we consider the certificate issued under 40 CFR part 89 or 1039 for each engine to also be a valid certificate of conformity under this part 94 for its model year. If we make a determination that these engines do not conform to the regulations during their useful life, we may require you to recall them under this part 94 or under 40 CFR part 89 or 1068.

(d) Qualifying criteria. If you are an engine manufacturer and meet all the following criteria and requirements regarding your new marine engine, the engine is eligible for an exemption under this section:

(1) The marine engine must be identical in all material respects to a land-based engine covered by a valid certificate of conformity for the appropriate model year showing that it meets emission standards for engines of that power rating under 40 CFR part 89 or 1039.

(2) The engines may not be used as propulsion marine engines.

(3) You must show that the number of auxiliary marine engines from the engine family must be smaller than the number of land-based engines from the engine family sold in the United States, as follows:

(i) If you are the original manufacturer of the engine, base this showing on your sales information.

(ii) In all other cases, you must get the original manufacturer of the engine to confirm this based on its sales information.

(e) Specific requirements. If you are an engine manufacturer or boat builder using this exemption, you must do all of the following:

(1) Make sure the original engine label will remain clearly visible after installation in the vessel. This label or a supplemental label must identify that the original certification is valid for marine auxiliary applications.

(2) Send a signed letter to the Designated Officer by the end of each calendar year (or less often if we tell you) with all the following information:

(i) Identify your full corporate name, address, and telephone number.

(ii) List the engine models you expect to produce under this exemption in the coming year.

(iii) State: “We produce each listed engine model for marine application without making any changes that could increase its certified emission levels, as described in 40 CFR 94.907.”

(3) If you are the certificate holder, you must describe in your application for certification how you plan to produce engines for both land-based and auxiliary marine applications, including projected sales of auxiliary marine engines to the extent this can be determined. If the projected marine sales are substantial, we may ask for the year-end report of production volumes to include actual auxiliary marine engine sales.

(f) Failure to comply. If your engines do not meet the criteria listed in paragraph (d) of this section, they will be subject to the standards, requirements, and prohibitions of this part 94 and the certificate issued under 40 CFR part 89 or 1039 will not be deemed to also be a certificate issued under this part 94. Introducing these engines into commerce without a valid exemption or certificate of conformity under this part violates the prohibitions in 40 CFR 94.1103(a)(1).

(g) Participation in averaging, banking and trading. Engines using this exemption may not generate or use emission credits under this part 94. These engines may generate credits under the ABT provisions in 40 CFR part 89 or 1039, as applicable. These engines must use emission credits under 40 CFR part 89 or 1039 as applicable if they are certified to an FEL that exceeds an applicable standard.

(h) Operator requirements. The requirements for vessel manufacturers, owners, and operators in subpart K of this part apply to these engines whether they are certified under this part 94 or another part as allowed by this section.

[70 FR 40460, July 13, 2005]

§ 94.913 Staged-assembly exemption.
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You may ask us to provide a temporary exemption to allow you to complete production of your engines at different facilities, as long as you maintain control of the engines until they are in their certified configuration. We may require you to take specific steps to ensure that such engines are in their certified configuration before reaching the ultimate purchaser. You may request an exemption under this section in your application for certification, or in a separate submission to the Designated Officer.

[70 FR 40461, July 13, 2005]

Subpart K—Requirements Applicable to Vessel Manufacturers, Owners, and Operators
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Source: 68 FR 9787, Feb. 28, 2003, unless otherwise noted.

§ 94.1001 Applicability.
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The requirements of this subpart are applicable to manufacturers, owners, and operators of marine vessels that contain Category 3 engines subject to the provisions of subpart A of this part, except as otherwise specified.

§ 94.1002 Definitions.
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The definitions of subpart A of this part apply to this subpart.

§ 94.1003 Production testing, in-use testing, and inspections.
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(a)–(b) [Reserved]

(c) Manufacturers, owners and operators must allow emission tests and inspections to be conducted and must provide reasonable assistance to perform such tests or inspections.

§ 94.1004 Maintenance, repair, adjustment, and recordkeeping.
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(a) Unless otherwise approved by the Administrator, all owners and operators of Category 3 engines subject to the provisions of this part shall ensure that all emission-related maintenance is performed, as specified in the maintenance instructions provided by the certifying manufacturer in compliance with §94.211.

(b) Unless otherwise approved by the Administrator, all maintenance, repair, adjustment, and alteration of Category 3 engines subject to the provisions of this part performed by any owner, operator or other maintenance provider that is not covered by paragraph (a) of this section shall be performed, using good engineering judgment, in such a manner that the engine continues (after the maintenance, repair, adjustment or alteration) to meet the emission standards it was certified as meeting prior to the need for service. Adjustments are limited to the range specified by the engine manufacturer in the approved application for certification.

(c) A Category 3 engine may not be adjusted or altered contrary to the requirements of §94.11 or paragraph (b) of this section, except as allowed by §94.1103(b)(2). If such an adjustment or alteration occurs, the engine must be returned to a configuration allowed by this part within two hours of operation. Each two-hour period during which there is noncompliance is a separate violation. The following provisions apply to adjustments or alterations made under §94.1103(b)(2):

(1) In the case of an engine that is adjusted or altered under §94.1103(b)(2)(i), there is no violation under this paragraph (c) for engine operation before completion of the repair or replacement procedure. The provisions of paragraph (c) introductory text apply to all operation following completion of the repair or replacement procedure.

(2) In the case of an engine that is adjusted or altered under §94.1103(b)(2)(ii), there is no violation under this paragraph (c) if the engine operates for less than two hours following the conclusion of the emergency that prompted the adjustment or alteration before the emission-control system is restored to proper functioning. The provisions of paragraph (c) introductory text apply to all operation that occurs after this two-hour period.

(d) The owner and operator of the engine shall maintain on board the vessel records of all maintenance, repair, and adjustment that could reasonably affect the emission performance of any Category 3 engine subject to the provision of this part. Owners and operators shall also maintain, on board the vessel, records regarding certification, parameter adjustment, and fuels used. For engines that are automatically adjusted electronically, all adjustments must be logged automatically. Owners and operators shall make these records available to EPA upon request. These records must include the following:

(1) [Reserved]

(2) The Technical File, Record Book of Engine Parameters, and bunker delivery notes that are required by the Annex VI Technical Code (incorporated by reference in §94.5).

(3) Specific descriptions of engine maintenance, repair, adjustment, and alteration (including rebuilding). The descriptions must include at least the date, time, and nature of the maintenance, repair, adjustment, or alteration and the position of the vessel when the maintenance, repair, adjustment, or alteration was made.

(4) Emission-related maintenance instructions provided by the manufacturer.

(e) For each marine vessel containing a Category 3 engine, the owner shall annually review the vessel's records and submit to EPA a signed statement certifying compliance during the preceding year with the requirements of this part that are applicable to owners and operators of such vessels. Alternately, if review of the vessel's records indicates that there has been one or more violations of the requirements of this part, the owner shall submit to EPA a signed statement specifying the noncompliance, including the nature of the noncompliance, the time of the noncompliance, and any efforts made to remedy the noncompliance. The statement of compliance (or noncompliance) required by this paragraph shall be signed by the executive with responsibility for marine activities of the owner. If the vessel is operated by a different business entity than the vessel owner, the reporting requirements of this paragraph (e) apply to both the owner and the operator. Compliance with these review and certification requirements by either the vessel owner or the vessel operator with respect to a compliance statement will be considered compliance with these requirements by both of these parties for that compliance statement. The executive(s) may authorize a captain or other primary operator to conduct this review and submit the certification, provided that the certification statement is accompanied by written authorization for that individual to submit such statements. The Administrator may waive the requirements of this paragraph when equivalent assurance of compliance is otherwise available.

[64 FR 73331, Dec. 29, 1999, as amended at 70 FR 40461, July 13, 2005]

Subpart L—General Enforcement Provisions and Prohibited Acts
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§ 94.1101 Applicability.
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The requirements of this subpart are applicable to all persons with respect to engines subject to the provisions of Subpart A of this part.

§ 94.1102 Definitions.
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The definitions of subpart A of this part apply to this subpart.

§ 94.1103 Prohibited acts.
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(a) The following acts and the causing thereof are prohibited:

(1)(i)(A) In the case of a manufacturer of new engines, the sale, the offering for sale, the introduction into commerce, the delivery for introduction into commerce, or the distribution in commerce of any new engine that is subject to the standards of this part, unless such engine is covered by a certificate of conformity issued (and in effect) under regulations found in this part.

(B) The manufacture of an engine for the purpose of an act listed in paragraph (a)(1)(i)(A) of this section unless such engine is covered by a certificate of conformity issued (and in effect) under regulations found in this part prior to its introduction into commerce.

(ii) In the case of any person, except as provided in Subpart I of this part, the importation into the United States of any engine manufactured on or after the implementation date of the applicable emission limits for the relevant engine, unless such engine is covered by a certificate of conformity issued (and in effect) under regulations found in this part.

(2)(i) For a person to fail or refuse to permit access to or copying of records or to fail to make reports or provide information required under this part.

(ii) For a person to fail or refuse to permit entry, testing, or inspection authorized under this part.

(iii) For a person to fail or refuse to perform tests, or to have tests performed as required by this part.

(iv) For a person to fail to establish or maintain records as required under this part.

(v) For an owner or operator of a vessel using a Category 3 engine to refuse to allow the in-use testing described in §94.1003 to be performed.

(vi) For a manufacturer, owner or operator of a Category 3 engine to fail to provide maintenance instructions as required by §94.211.

(3)(i) For a person to remove or render inoperative a device or element of design installed on or in an engine in compliance with regulations under this part, or to set any adjustable parameter to a setting outside of the range specified by the manufacturer, as approved in the application for certification by the Administrator (except as allowed by §§94.1003 and 94.1004).

(ii) For a person to manufacture, sell or offer to sell, or install, a part or component intended for use with, or as part of, an engine, where a principal effect of the part or component is to bypass, defeat, or render inoperative a device or element of design installed on or in an engine in compliance with regulations issued under this part, and where the person knows or should know that the part or component is being offered for sale or installed for this use or put to such use.

(iii) for a person to deviate from the provisions of §94.11 when rebuilding an engine (or rebuilding a portion of an engine or engine system).

(4) For a manufacturer of a new engine subject to standards prescribed under this part:

(i) To sell, offer for sale, or introduce or deliver for introduction into commerce, a new engine unless the manufacturer has complied with the requirements of §94.1107.

(ii) To sell, offer for sale, or introduce or deliver for introduction into commerce, a new engine unless all required labels and tags are affixed to the engine in accordance with §94.212.

(iii) To fail or refuse to comply with the requirements of §94.1108.

(iv) Except as provided in §94.211, to provide directly or indirectly in any communication to the ultimate purchaser or a subsequent purchaser that the coverage of a warranty under the Act is conditioned upon use of a part, component, or system manufactured by the manufacturer or a person acting for the manufacturer or under its control, or conditioned upon service performed by such persons.

(v) To fail or refuse to comply with the terms and conditions of the warranty under §94.1107.

(5) For a manufacturer of marine vessels to distribute in commerce, sell, offer for sale, or deliver for introduction into commerce a new vessel containing an engine not covered by a certificate of conformity applicable for an engine model year the same as or later than the calendar year in which the manufacture of the new vessel is initiated. This prohibition covers improper installation in a manner such that the installed engine would not be covered by the engine manufacturer's certificate. Improper installation would include, but is not limited to, failure to follow the engine manufacturer's instructions related to engine cooling, exhaust aftertreatment, emission sampling ports, or any other emission-related component, parameter, or setting. In general, you may use up your normal inventory of engines not certified to new emission standards if they were built before the date of the new standards. However, we consider stockpiling of these engines to be a violation of paragraph (a)(1)(i)(A) of this section. (Note: For the purpose of this paragraph (a)(5), the manufacture of a vessel is initiated when the keel is laid, or the vessel is at a similar stage of construction.)

(6) For any person to install a recreational marine engine in a vessel that is manufactured on or after the implementation date of the applicable standards and that is not a recreational vessel.

(7)(i) For an owner or operator of a vessel using a Category 3 engine to fail or refuse to ensure that an engine is properly adjusted as set forth in §94.1004.

(ii) For an owner or operator of a vessel using a Category 3 to fail to maintain or repair an engine as set forth in §94.1004.

(iii) For an owner or operator of a vessel using a Category 3 engine to operate an engine in violation of the requirements of §94.1004(c).

(iv) For an owner or operator of a vessel using a Category 3 engine to fail to comply with any applicable provision in this part for recordkeeping, reporting, or submission of information to EPA, including the annual certification requirements of §94.1004.

(8) For an owner or operator of a vessel installing a replacement engine under the provisions of paragraph (b)(4) of this section to make modifications to significantly increase the value of the vessel within six months after installing the replacement engine.

(b) For the purposes of enforcement of this part, the following apply:

(1) Nothing in paragraph (a)(3) of this section is to be construed to require the use of any manufacturer's parts in maintaining or repairing an engine.

(2)(i) Actions for the purpose of repair or replacement of a device or element of design or any other item are not considered prohibited acts under paragraph (a)(3)(i) of this section if the action is a necessary and temporary procedure, the device or element is replaced upon completion of the procedure, and the action results in the proper functioning of the device or element of design.

(ii) Actions for emergency purposes are not considered prohibited acts under paragraph (a)(3)(i) of this section if the action is a necessary and temporary procedure and the device or element is replaced such that the proper functioning of the device or element of design is restored as soon as possible.

(3) Where the Administrator determines that no engine that is certified to the requirements of this part is produced by any manufacturer with the appropriate physical or performance characteristics to repower a vessel, the Administrator may allow an engine manufacturer to introduce into commerce a replacement engine without complying with all of the otherwise applicable requirements of this part. Such engine shall not be subject to the prohibitions of paragraph (a)(1) of this section, subject to all the following provisions:

(i) The engine requiring replacement is not certified or is certified to emission standards that are less stringent than those in effect when the replacement engine is built.

(ii) The engine manufacturer or its agent takes ownership and possession of the engine being replaced or confirms that the engine has been destroyed.

(iii) If the engine being replaced was not certified to any emission standards under this part, the replacement engine must have a permanent label with your corporate name and trademark and the following language, or similar alternate language approved by the Administrator:


THIS ENGINE DOES NOT COMPLY WITH U.S. EPA MARINE EMISSION REQUIREMENTS. SELLING OR INSTALLING THIS ENGINE FOR ANY PURPOSE OTHER THAN TO REPLACE A MARINE ENGINE BUILT BEFORE JANUARY 1, [Insert appropriate year reflecting when the earliest tier of standards began to apply to engines of that size and type] MAY BE A VIOLATION OF FEDERAL LAW SUBJECT TO CIVIL PENALTY.


(iv) If the engine being replaced was certified to emission standards less stringent than those in effect when you produce the replacement engine, the replacement engine must have a permanent label with your corporate name and trademark and the following language, or similar alternate language approved by the Administrator:


THIS ENGINE COMPLIES WITH U.S. EPA MARINE EMISSION REQUIREMENTS FOR [Insert appropriate year reflecting when the Tier 1 or Tier 2 standards for the replaced engine began to apply] ENGINES UNDER 40 CFR 94.1103(b)(3). SELLING OR INSTALLING THIS ENGINE FOR ANY PURPOSE OTHER THAN TO REPLACE A MARINE ENGINE BUILT BEFORE JANUARY 1, [Insert appropriate year reflecting when the next tier of emission standards began to apply] MAY BE A VIOLATION OF FEDERAL LAW SUBJECT TO CIVIL PENALTY.


(v) Where the replacement engine is intended to replace an engine that is certified to emission standards that are less stringent than those in effect when the replacement engine is built, the replacement engine shall be identical in all material respects to a certified configuration of the same or later model year as the engine being replaced.

(vi) Engines sold pursuant to the provisions of this paragraph will neither generate nor use emission credits and will not be part of any accounting under the averaging, banking and trading program.

(vii) In cases where an engine is to be imported for replacement purposes under the provisions of this paragraph (b)(3) of this section, the term “engine manufacturer” shall not apply to an individual or other entity that does not possess a current Certificate of Conformity issued by EPA under this part; and

(viii) The provisions of this section may not be used to circumvent emission standards that apply to new engines under this part.

(4) An engine manufacturer may make the determination related to replacement engines described in paragraph (b)(3) of this section instead of the Administrator, if the new engine is needed to replace an engine that has experienced catastrophic failure. The engine manufacturer must consider whether certified engines are available from its own product lineup or that of the manufacturer of the engine being replaced (if different). The engine manufacturer must keep records explaining why a certified engine was not available and make these records available upon request.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68347, Nov. 8, 2002; 68 FR 9788, Feb. 28, 2003; 70 FR 40461, July 13, 2005]

§ 94.1104 General enforcement provisions.
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(a) Information collection provisions. (1)(i) Every manufacturer of new engines and other persons subject to the requirements of this part must establish and maintain records, perform tests, make reports and provide information the Administrator may reasonably require to determine whether the manufacturer or other person has acted or is acting in compliance with this part or to otherwise carry out the provisions of this part, and must, upon request of an officer or employee duly designated by the Administrator, permit the officer or employee at reasonable times to have access to and copy such records. The manufacturer shall comply in all respects with the requirements of subpart E of this part.

(ii) Every manufacturer or owner of engines exempted from the standards or requirements of this part must establish and maintain records, perform tests, make reports and provide information the Administrator may reasonably require regarding the emissions of such engines.

(2) For purposes of enforcement of this part, an officer or employee duly designated by the Administrator, upon presenting appropriate credentials, is authorized:

(i) To enter, at reasonable times, any establishment of the manufacturer, or of any person whom the manufacturer engaged to perform any activity required under paragraph (a)(1) of this section, for the purposes of inspecting or observing any activity conducted pursuant to paragraph (a)(1) of this section; and

(ii) To inspect records, files, papers, processes, controls, and facilities used in performing an activity required by paragraph (a)(1) of this section, by the manufacturer or by a person whom the manufacturer engaged to perform the activity.

(b) Exemption provision. The Administrator may exempt a new engine from §94.1103 upon such terms and conditions as the Administrator may find necessary for the purpose of export, research, investigations, studies, demonstrations, or training, or for reasons of national security, or for other purposes allowed by subpart J of this part.

(c) Importation provision. (1) A new engine, offered for importation or imported by a person in violation of §94.1103 is to be refused admission into the United States, but the Secretary of the Treasury and the Administrator may, by joint regulation, provide for deferring a final determination as to admission and authorizing the delivery of such an engine offered for import to the owner or consignee thereof upon such terms and conditions (including the furnishing of a bond) as may appear to them appropriate to insure that the engine will be brought into conformity with the standards, requirements, and limitations applicable to it under this part.

(2) If an engine is finally refused admission under this paragraph (c), the Secretary of the Treasury shall cause disposition thereof in accordance with the customs laws unless it is exported, under regulations prescribed by the Secretary, within 90 days of the date of notice of the refusal or additional time as may be permitted pursuant to the Treasury regulations.

(3) Disposition in accordance with the customs laws may not be made in such manner as may result, directly or indirectly, in the sale, to the ultimate consumer, of a new engine that fails to comply with applicable standards of the Administrator under this part.

(d) Export provision. A new engine intended solely for export, and so labeled or tagged on the outside of the container if used and on the engine, shall be subject to the provisions of §94.1103, except that if the country that is to receive the engine has emission standards that differ from the standards prescribed under subpart A of this part, then the engine must comply with the standards of the country that is to receive the engine.

(e) Recordkeeping. Except where specified otherwise, records required by this part must be kept for eight (8) years. (continued)