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(continued)
(D) If an engine manufacturer determines that the emission test results of an engine or unit of equipment are invalid, the engine or equipment must be retested. Emission results from all tests must be reported. The engine manufacturer must include a detailed report on the reasons for each invalidated test in the quarterly report.
(4)(A) Manufacturers will calculate the required sample size for the model year for each engine family using the Sample Size Equation below. N is calculated from each test result. The number N indicates the number of tests required for the model year for an engine family. N, is recalculated after each test. Test results used to calculate the variables in the Sample Size Equation must be final deteriorated test results as specified in (d)(3).
Where:
N = required sample size for the model year.
t95 = 95% confidence coefficient. It is dependent on the number of
tests
completed, n, as specified in the table in paragraph (C) of this
section. It defines one-tail, 95% confidence intervals.
<> = test sample standard deviation calculated from the following
equation:

Where:
Xi = emission test result for an individual engine
x = mean of emission test results of the sample
STD = emission standard
n = The number of tests completed in an engine family

(B) Reserved
(C) Number of Tests (n) & 1-tail Confidence Coefficients (t 95)
n t95 n t95 n t95
2 6.31 12 1.80 22 1.72
3 2.92 13 1.78 23 1.72
4 2.35 14 1.77 24 1.71
5 2.13 15 1.76 25 1.71
6 2.02 16 1.75 26 1.71
7 1.94 17 1.75 27 1.71
8 1.90 18 1.74 28 1.70
9 1.86 19 1.73 29 1.70
10 1.83 20 1.73 30 1.70
11 1.81 21 1.72 <> 1.645

(D) A manufacturer must distribute the testing of the remaining number of engines needed to meet the required sample size N, evenly throughout the remainder of the model year.
(E) After each new test, the required sample size, N, is recalculated using updated sample means, sample standard deviations and the appropriate 95% confidence coefficient.
(F) A manufacturer must continue testing and updating each engine family's sample size calculations according to paragraphs (4)(A) through (4)(F) of this section until a decision is made to stop testing as described in paragraph (4)(G) of this section or a noncompliance decision is made pursuant to (c)(6).
(G) If, at any time throughout the model year, the calculated required sample size, N, for an engine family is less than or equal to the sample size, n, and the sample mean, x, for HC + NOx is less than or equal to the emission standard, the manufacturer may stop testing that engine family.
(H) If, at any time throughout the model year, the sample mean, x, for HC + NOx is greater than the emission standard, the manufacturer must continue testing that engine family at the appropriate maximum sampling rate.
(I) The maximum required sample size for an engine family (regardless of the required sample size, N, as calculated in paragraph (4)(A) of this section) is thirty tests per model year.
(J) Manufacturers may elect to test additional randomly chosen engines. All additional randomly chosen engines tested in accordance with the testing procedures specified in Emission Standards and Test Procedures must be included in the Sample Size and Cumulative Sum equation calculations as defined in section (b), respectively.
(K) Small volume manufacturers may limit the number of engines tested to one percent of their California production. Compliance would be determined based on the available test data.
(5) The manufacturer must produce and assemble the test engines using its normal production and assembly process for engines to be distributed into commerce.
(6) No quality control, testing, or assembly procedures will be used on any test engine or any portion thereof, including parts and subassemblies, that have not been or will not be used during the production and assembly of all other engines of that family, unless the Executive Officer approves the modification in production or assembly procedures.
(c) Calculation of Cumulative Sum (CumSum) Statistic. Each engine manufacturer must review the test results using the following procedure:
(1) Manufacturers must construct the following CumSum equation for each regulated pollutant for each engine family. Test results used to calculate the variables in the CumSum Equation must be final deteriorated test results as defined in (d)(3).
Ci = max[0 OR ( Ci-l + Xi -(STD + F)) ]
Where:
Ci = The current CumSum statistic
Ci-1 = The previousCumSum statistic. Prior to any testing, the CumSum
statistic = 0 (i.e. C 0 = 0)
Xi = The current emission test result for an individual engine
STD = Emission standard
F = 0.25 x

(2) After each test, Ci is compared to the action limit, H, the quantity which the CumSum statistic must exceed, in two consecutive tests, before the engine family may be determined to be in noncompliance for purposes of paragraph (c).
H = The Action Limit. It is 5.0 x <>, and is a function of
standard
deviation, <>
<> = is the sample standard deviation and is recalculated after each
test.

(3) After each engine is tested, the CumSum statistic shall be promptly updated according to the CumSum Equation in paragraph (1) of this subsection.
(4) If, at any time during the model year, a manufacturer amends the application for certification for an engine family as specified in Sections 17 and 18 of the Test Procedures by performing an engine family modification (i.e. a change such as a running change involving a physical modification to an engine, a change in specification or setting, the addition of a new configuration, changes in calibration, or the use of a different deterioration factor), all previous sample size and CumSum statistic calculations for the model year will remain unchanged.
(5) A failed engine is one whose final deteriorated test result for a regulated pollutant exceeds the emission standard for that pollutant.
(6) An engine family may be determined to be in noncompliance, if at any time throughout the model year, the CUMSUM statistic, C i, for a regulated pollutant is greater than the action limit, H, for two consecutive tests.
(7) The engine manufacturer must perform a minimum of two (2) tests per engine family per quarter of production, regardless of whether the conditions of sample size have been met.
(8) All results from the previous quarters of the same model year must be included in the on-going Cumulative Sum analysis, provided that the engine family has not failed (e.g., if three engines of a family were tested in the first quarter, the first test of the second quarter would be considered as the fourth test).
(9) If the Cumulative Sum analysis indicates that an engine family has failed, the engine manufacturer must notify the Chief of the Mobile Source Operations Division in writing and by telephone, within ten (10) working days. Corrective action will be taken as noted in paragraphs (e) and (f) below.
(10) If a manufacturer performs corrective action on a failed engine family and then resumes production, all previous tests will be void, and Cumulative Sum analysis will begin again with the next test.
(11) At the end of the quarter, or when the Cumulative Sum analysis indicates that a decision has been made, the manufacturer must provide all the data accumulated during the quarter.
(d) Calculation and reporting of test results.
(1) Initial test results are calculated following the applicable test procedure. The manufacturer rounds these results, in accordance with ASTM E29- 93a, to the number of decimal places contained in the applicable emission standard expressed to one additional significant figure. (ASTM E29-93a has been incorporated by reference.)
(2) Final test results are calculated by summing the initial test results derived in paragraph (a) of this section for each test engine, dividing by the number of tests conducted on the engine, and rounding in accordance with ASTM E29-93a to the same number of decimal places contained in the applicable standard expressed to one additional significant figure.
(3) The final deteriorated test results for each test engine are calculated by applying the appropriate deterioration factors, derived in the certification process for the engine family, to the final test results, and rounding in accordance with ASTM E29-93a to the same number of decimal places contained in the applicable standard expressed to one additional significant figure.
(4) If, at any time during the model year, the CumSum statistic exceeds the applicable action limit, H, in two consecutive tests, the engine family may be determined to be in noncompliance and the manufacturer must notify the Chief of Mobile Sources Operations Division and the Manager of the New Vehicle Audit Section, 9528 Telstar Ave., El Monte, CA 91731, within ten (10) working days of such exceedance by the Cum Sum statistic.
(5) Within 30 calendar days of the end of each quarter, each engine manufacturer must submit to the Executive Officer a report which includes the following information:
(A) The location and description of the manufacturer's or other's exhaust emission test facilities which were utilized to conduct testing reported pursuant to this section;
(B) Total production and sample sizes, N and n, for each engine family;
(C) The applicable emissions standards for each engine family.
(D) A description of the process to obtain engines on a random basis;
(E) A description of the test engines. (i.e., date of test, engine family, engine size, engine or equipment identification number, fuel system, dynamometer power absorber setting in horsepower, engine code or calibration number, and test location).
(F) The date of the end of the engine manufacturer's model year production for each engine family.
(G) For each test conducted,
(i) A description of the test engine, including:
(a) Configuration and engine family identification,
(b) Year, make, and build date,
(c) Engine identification number, and
(d) Number of hours of service accumulated on engine prior to testing;
(ii) Location where service accumulation was conducted and description of accumulation procedure and schedule;
(iii) Test number, date, test procedure used, initial test results before and after rounding, and final test results for all exhaust emission tests, whether valid or invalid, and the reason for invalidation, if applicable;
(iv) A complete description of any adjustment, modification, repair, preparation, maintenance, and/or testing which was performed on the test engine, was not reported pursuant to any other part of this article, and will not be performed on all other production engines;
(v) The exhaust emission data for HC+NOx (or NMHC+NOx, as applicable) and CO for each test engine or equipment. The data reported must provide two significant figures beyond the number of significant figures in applicable emission standards.
(vi) The retest emission data, as described in paragraph (d) above for any engine or unit of equipment failing the initial test, and description of the corrective actions and measures taken, including specific component replaced or adjusted.
(vii) A CumSum analysis, as required in paragraph (c), of the production line test results for each engine family;
(viii) Any other information the Executive Officer 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 Executive Order was issued;
(ix) For each failed engine as defined in paragraph (c), a description of the remedy and test results for all retests.
(x) Every aborted test data and reason for the aborted test.
(xi) The start and stop dates of batch-produced engine family production.
(xii) The required information for all engine families in production during the quarter regardless of sample size; and
(xiii) The following signed statement and endorsement by an authorized representative of the manufacturer:
This report is submitted pursuant to this article. This production line testing program was conducted in complete conformance with all applicable regulations under the Test Procedures. 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 California Code of Regulations and the regulations thereunder. (Authorized Company Representative.)
(H) Each manufacturer must submit a copy of the report that has been stored (e.g., computer disc), or may be transmitted, in an electronically digitized manner, and in a format that is specified by the Executive Officer. This electronically based submission is in addition to the written submission of the report.
(e) Manufacturer Notification of Failure.
(1) The Executive Officer will notify the engine manufacturer that the engine manufacturer may be subject to revocation or suspension of the Executive Order authorizing sales and distribution of the noncompliant engines in the State of California, or being enjoined from any further sales, or distribution, of the noncompliant engines in the State of California pursuant to Section 43017 of the Health and Safety Code. Prior to revoking or suspending, or seeking to enjoin an engine manufacturer, and other interested parties, including, but not limited to corrective actions applied to the noncompliant engine family. In addition, the engine manufacturer may be subject to, on a per engine basis, any and all remedies available under Part 5, Division 26 of the Health and Safety Code, sections 43000 et seq.
(2) The Executive Officer will notify the equipment manufacturer that the equipment manufacturer may be subject to revocation or suspension of the Executive Order authorizing sales and distribution of the noncompliant equipment in the State of California, or being enjoined from any further sales, or distribution, of the noncompliant equipment product line(s) that are, or utilize engines that are, noncompliant with the applicable emission regulations in the State of California pursuant to Section 43017 of the Health and Safety Code. Prior to revoking or suspending, or seeking to enjoin an equipment manufacturer, and other interested parties, including, but not limited to corrective actions applied to the noncompliant engine family. In addition, the equipment manufacturer may be subject to, on a per engine basis, any and all remedies available under Part 5, Division 26 of the Health and Safety Code, sections 43000 et seq.
(f) Suspension and revocation of Executive Order.
(1) The Executive Order is automatically suspended with respect to any engine failing pursuant to paragraph (c)(5) effective from the time that testing of that engine family is completed.
(2) The Executive Officer may suspend the Executive Order for an engine family which is determined to be in noncompliance pursuant to paragraph (c)(6). This suspension will not occur before fifteen days after the engine family is determined to be in noncompliance.
(3) If the results of testing pursuant to these regulations indicate that engines of a particular family produced at one plant of a manufacturer do not conform to the regulations with respect to which the Executive Order was issued, the Executive Officer may suspend the Executive Order with respect to that family for engines manufactured by the manufacturer at this and all other plants.
(4) Notwithstanding the fact that engines described in the application for certification may be covered by an Executive Order, the Executive Officer may suspend such certificate immediately in whole or in part if the Executive Officer finds any one of the following infractions to be substantial:
(A) The manufacturer refuses to comply with any of the requirements of this subpart.
(B) The manufacturer submits false or incomplete information in any report or information provided to the Executive Officer under this subpart.
(C) The manufacturer renders inaccurate any test data submitted under this subpart.
(D) An ARB enforcement officer is denied the opportunity to conduct activities authorized in this subpart and a warrant or court order is presented to the manufacturer or the party in charge of the facility in question.
(5) The Executive Officer may suspend such certificate immediately in whole or in part if the Executive Officer finds that an ARB enforcement officer is unable to conduct activities authorized in this Section and the Test Procedures because a manufacturer has located its facility in a foreign jurisdiction where local law prohibits those activities.
(6) The Executive Officer shall notify the manufacturer in writing of any suspension or revocation of an Executive Order in whole or in part. A suspension or revocation is effective upon receipt of the notification or fifteen days from the time an engine family is determined to be in noncompliance pursuant to paragraph (c)(5) or (c)(6), whichever is later, except that the certificate is immediately suspended with respect to any failed engines as provided for in paragraph (a) of this section.
(7) The Executive Officer may revoke an Executive Order for an engine family after the certificate has been suspended pursuant to paragraph (b) or (c) of this section if the proposed remedy for the nonconformity, as reported by the manufacturer to the Executive Officer, is one requiring a design change or changes to the engine or emission control system as described in the application for certification of the affected engine family.
(8) Once an Executive Order 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:
(A) Remedy the nonconformity;
(B) Demonstrate that the engine conforms to the emission standards by retesting the engine in accordance with these regulations; and
(C) Submit a written report to the Executive Officer, 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.
(9) Once an Executive Order for a failed engine family has been suspended pursuant to paragraph (b), (c) or (d) of this section, the manufacturer must take the following actions before the Executive Officer will consider reinstating the certificate:
(A) Submit a written report to the Executive Officer which identifies the reason for the noncompliance of the engines, describes the proposed remedy, including a description of any proposed quality control 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.
(B) Demonstrate that the engine family for which the Executive Order has been suspended does in fact comply with the regulations of this part by testing as many engines as needed so that the CumSum statistic falls below the action limit. Such testing must comply with the provisions of this Part. If the manufacturer elects to continue testing individual engines after suspension of a certificate, the certificate is reinstated for any engine actually determined to be in conformance with the emission standards through testing in accordance with the applicable test procedures, provided that the Executive Officer has not revoked the certificate pursuant to paragraph (f) of this section.
(10) Once the Executive Order 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 Executive Officer may issue a certificate for that modified family:
(A) If the Executive Officer determines that the proposed change(s) in engine design may have an effect on emission performance deterioration, the Executive Officer shall notify the manufacturer, within five working days after receipt of the report in paragraph (9)(A) of this section, whether subsequent testing under this subpart will be sufficient to evaluate the proposed change or changes or whether additional testing will be required; and
(B) After implementing the change or changes intended to remedy the nonconformity, the manufacturer must demonstrate that the modified engine family does in fact conform with the regulations of this part by testing as many engines as needed from the modified engine family so that the CumSum statistic, as calculated per aforementioned method, falls below the action limit. When both of these requirements are met, the Executive Officer shall reissue the certificate or issue a new certificate, as the case may be, to include that family. As long as the CumSum statistic remains above the action limit, the revocation remains in effect.
(11) At any time subsequent to a suspension of an Executive Order for a test engine pursuant to paragraph (a) of this section, but not later than 15 days (or such other period as may be allowed by the Executive Officer) after notification of the Executive Officer's decision to suspend or revoke an Executive Order in whole or in part pursuant to paragraphs (b), (c), or (f) of this section, a manufacturer may request a hearing as to whether the tests have been properly conducted or any sampling methods have been properly applied.
(12) Any suspension of an Executive Order under paragraph (f)(4) of this section:
(A) must be made only after the manufacturer concerned has been offered an opportunity for a hearing conducted in accordance with all applicable requirements and;
(B) need not apply to engines no longer in the possession of the manufacturer.
(13) After the Executive Officer suspends or revokes an Executive Order pursuant to this section and prior to the commencement of a hearing, if the manufacturer demonstrates to the Executive Officer's satisfaction that the decision to suspend or revoke the Executive Order was based on erroneous information, the Executive Officer shall reinstate the Executive Order.
(14) To permit a manufacturer to avoid storing non-test engines while conducting subsequent testing of the noncomplying family, a manufacturer may request that the Executive Officer conditionally reinstate the Executive Order for that family. The Executive Officer may reinstate the Executive Order subject to the following condition: the manufacturer must commit to recall all engines of that family produced from the time the Executive Order is conditionally reinstated if the CumSum statistic does not fall below the action limit and must commit to remedy any nonconformity at no expense to the owner.


Note: Authority cited: Sections 39600, 39601, 43013, 43017, 43018, 43101, 43102, and 43104, Health and Safety Code. Reference: Sections 43013, 43017, 43018, 43101, 43102, 43104, 43105, 43150-43154, 43205.5 and 43210-43212, Health and Safety Code.


s 2438. In-Use Compliance Program.
(a) This section applies to new 2004 and later model year off-road large spark-ignition engines with engine displacement greater than 1.0 liter.
(b) Manufacturer In-Use Testing Program.
Standards and Test Procedures. The emission standards, exhaust sampling and analytical procedures are those described in the Test Procedures, and are applicable to engines tested only for exhaust emissions. An engine is in compliance with these standards and test procedures only when all portions of these in-use test procedures and specified requirements from the Test Procedures are fulfilled, except that any adjustable engine parameters must be set to the nominal value or position as indicated on the engine label.
(1) Within a manufacturer's model-year engine production period, the ARB will identify those engine families, and the specific configurations within an engine family, that the manufacturer must subject to in-use testing as described below. For each model year, ARB may identify a number of engine families that is no greater than 25 percent of the number of engine families to which this article is applicable. For those manufacturers producing three or less engine families in a model year, ARB may designate a maximum of one engine family per model year for in-use testing.
(2) For each engine family identified by ARB, engine manufacturers must perform emission testing of an appropriate sample of in-use engines from each engine family. Manufacturers must submit data from this in-use testing to ARB.
(3) An engine manufacturer must test in-use engines from each engine family identified by ARB. All engines selected by the manufacturer for testing must be identified by the manufacturer, and a list of the selected engines must be submitted to the Executive Officer, prior to the onset of testing. Engines to be tested must have accumulated a minimum of 0.50 (50 percent) of the family's certified useful life period. The number of engines to be tested by a manufacturer will be determined by the following method:
(A) a minimum of four engines per family, provided that no engine fails any emission standard. For each exceedance, two additional engines must be tested until the total number of engines equals ten.
(B) For engine families of less than 500 engines (national production) for the identified model year or for engine manufacturers who make less than or equal to 2,000 engines nationally for that model year, a minimum of two (2) engines per family provided that no engine fails any emission standard. For each failing engine, two more engines shall be tested until the total number of engines equals ten (10).
(C) If an engine family was certified using carryover emission data and has been previously tested under paragraphs (b)(3)(A) or (b)(3)(B) of this section (and a recall for that family has not occurred), then only one engine for that family must be tested. If that one engine fails any emission standard, testing must be conducted as outlined in subsections (b)(3)(A) or (b)(3)(B), whichever is appropriate.
(4) The Executive Officer may approve an alternative to manufacturer in-use testing, where:
(A) Engine family production is less than or equal to 200 per year, nationally;
(B) Engines cannot be obtained for testing because they are used substantially in vehicles or equipment that are not conducive to engine removal such as large vehicles or equipment from which the engine cannot be removed without dismantling either the engine, vehicle, or equipment; or
(C) Other compelling circumstances associated with the structure of the industry and uniqueness of engine applications. Such alternatives shall be designed to determine whether the engine family is in compliance.
(5) The engine manufacturer shall procure in-use engines which have been operated between 0.50 and 1.0 times the certified engine's useful life period. The engine manufacturer may test engines from more than one model year in a given year. The manufacturer shall submit a plan for testing within twelve calendar months after receiving notice that ARB has identified a particular engine family for testing and shall complete testing of such engine family within 24 calendar months from the date of approval of the plan by ARB. Test engines may be procured from sources associated with the engine manufacturer (i.e., manufacturer-established fleet engines, etc.) or from sources not associated with the manufacturer (i.e., consumer-owned engines, independently owned fleet engines, etc.).
(c) Maintenance, procurement and testing of in-use engines.
(1) A test engine must have a maintenance and use history representative of in-use conditions.
(A) To comply with this requirement a manufacturer must obtain information from the end users regarding the accumulated usage, maintenance, repairs, operating conditions, and storage of the test engines.
(B) Documents used in the procurement process must be maintained as required.
(2) The manufacturer may perform minimal restorative maintenance on components of a test engine that are not subject to parameter adjustment. Maintenance may include only that which is listed in the owner's instructions for engines with the amount of service and age of the acquired test engine. Repairs may be performed on a test engine with prior Executive Officer approval. Documentation of all maintenance, repairs, defects, and adjustments shall be maintained and retained as required.
(3) At least one valid emission test, according to the Test Procedure, is required for each in-use engine.
(4) The Executive Officer may waive portions or requirements of the test procedure, if any, that are not necessary to determine in-use compliance.
(5) If a selected in-use engine fails to comply with any applicable emission standards, the manufacturer shall determine the reason for noncompliance. The manufacturer must report within 72 hours after the completion of the test specifying the emission results and identifying the pollutant which failed to comply with the emission standard. The manufacturer must report all such reasons of noncompliance within fifteen business days of completion of testing. Additional time beyond the initial fifteen days may be granted providing that the manufacturer receives prior approval from the Executive Officer. The reports may be filed electronically or mailed to the following address: Chief of Mobile Source Operations Division, 9528 Telstar Avenue, El Monte, CA 91731.
(6) At the discretion of the Executive Officer, an engine manufacturer may test more engines than the minima described in paragraph (b)(3) of this section or may concede failure before testing a total of ten engines. Upon conceding failure the manufacturer shall proceed with a voluntary recall program as specified in Section 2439.
(7) The Executive Officer will consider failure rates, average emission levels and the existence of any defects, among other factors, in determining whether to pursue remedial action under this subpart. The Executive Officer may order a recall pursuant to Section 2439 before testing reaches the tenth engine whenever the Executive Officer has determined, based on production-line test results or in-use test results, enforcement testing results, or any other information, that a substantial number of a class or category of equipment or engines produced by that manufacturer, although properly maintained and used, contain a failure in an emission-related component which, if uncorrected, may result in the equipments' or engines' failure to meet applicable standards over their useful lives; or whenever a class or category of equipment or engines within their useful lives, on average, do not conform to the emission standards prescribed pursuant to Part 5 (commencing with Section 43000) of Division 26 of the Health and Safety Code, or any regulation adopted by the state board pursuant thereto, other than an emissions standard applied to new engines to determine "certification" as specified in Chapter 9, as applicable to the model year of such equipment or engines.
(8) Prior to an ARB-ordered recall, the manufacturer may perform a voluntary emissions recall pursuant to Article 4.5, Section 2439(b). Such manufacturer is subject to the reporting requirements in subsection (d) below.
(9) Once ARB determines that a substantial number of engines fail to conform with the requirements, the manufacturer will not have the option of a voluntary emissions recall.
(d) In-use test program reporting requirements.
(1) The manufacturer shall electronically submit to the Executive Officer within three months of completion of testing all emission testing results generated from the in-use testing program. The following information must be reported for each test engine:
(A) engine family,
(B) model,
(C) engine serial number or alternate identification, as applicable,
(D) date of manufacture,
(E) estimated hours of use,
(F) date and time of each test attempt,
(G) results (if any) of each test attempt,
(H) results of all emission testing,
(I) summary of all maintenance, repairs, and adjustments performed,
(J) summary (if any) of all ARB pre-approved modifications and repairs,
(K) determinations of noncompliance or compliance.
(2) The manufacturer must electronically submit the results of its in-use testing with a pre-approved information heading. The Executive Officer may exempt manufacturers from this requirement upon written request with supporting justification.
(3) All testing reports and requests for approvals made under this subpart shall be sent to the Executive Officer.
(4) The Executive Officer may require modifications to a manufacturer's in-use testing programs.
(e) In-use emissions credit, averaging, banking, and trading program.
(1) General applicability
(A) The in-use credit program for eligible engines is described in this subsection. Participation in this program is voluntary.
(B) An engine family is eligible to participate in the in-use credit program if it is subject to regulation under Section 2433 of this part with certain exceptions specified in paragraph (C).
(C) Engines may not participate in the in-use averaging, banking, and trading program if they are delivered to a "point of first retail sale" outside of California.
(D) Reserved.
(E) An engine family with a compliance level, as determined by in-use testing below, the applicable emission standards to which the engine family is certified may generate emission credits for averaging, banking, or trading in the in-use credit program.
(F) Positive credits generated in a given model year may be used in that model year or in any subsequent model year.
(G) A manufacturer of an engine family with a compliance level exceeding the applicable emission standards to which the engine family is certified, may, prior to the date of the report use previously banked credits, purchase credits from another manufacturer, or perform additional testing to address the associated credit deficit (negative credits or a need for credits).
(H) Reserved.
(I) A manufacturer must notify the Executive Officer of plans to test additional engine families beyond the maximum 25% required for the in-use testing program. Such notice must be submitted to the Executive Officer 30 days prior to initiation of testing. If the additional testing discovers an engine family to be in noncompliance with the applicable emission standards, the testing must be treated as if it were a failure of the normal in-use testing requirement of an engine family.
(J) Manufacturers must demonstrate a zero or positive credit balance under the in-use credit program for a particular model year within 90 days of the end of the in-use testing of that model year's engine families.
(2) Engines subject to the 2004 and later model-year emission standards are eligible to participate in the in-use credit program.
(3) The definitions below shall apply to this subsection:
(A) Averaging means the exchange of in-use emission credits among LSI engine families within a given manufacturer's product line.
(B) Banked credits refer to positive emission credits based on applicable actual production or sales volume as contained in the end of model year in-use testing reports submitted to Executive Officer of the ARB. Some or all of these banked credits may be revoked if the Executive Officer's review of the end of model year in-use testing reports or any subsequent audit action(s) uncovers problems or errors.
(C) Banking means the retention of in-use emission credits by the manufacturer generating the emission credits for use in future model year averaging or trading as permitted by these regulations.
(D) Carry-over engine family means an engine family which undergoes certification using carryover test data from previous model years.
(E) Compliance level for an engine family is determined by averaging the in-use test results from each engine.
(F) In-use credits represent the amount of emission reduction or exceedance, for each regulated pollutant, by an engine family below or above, respectively, the applicable emission standards. Emission reductions below the emission standard are considered "positive credits," while emission exceedances above the emission standard are considered "negative or required credits."
(G) Trading means the exchange of in-use emission credits between manufacturers or brokers.
(4) Averaging.
(A) A manufacturer may use averaging across engine families to demonstrate a zero or positive credit balance for a model year. Positive credits to be used in averaging may be obtained from credits generated by another engine family of the same model year, credits banked in previous model years, or credits obtained through trading.
(B) Credits used to demonstrate a zero or positive credit balance must be used at a rate of 1.1 to 1.
(5) Banking.
(A) A manufacturer of an engine family with an in-use compliance level below the applicable emission standards for a given model year may bank positive in-use credits for that model year for in-use averaging and trading.
(B) A manufacturer may consider credits banked 30 days after the submission of the report. During the 30 day period ARB will work with the manufacturer to correct any error in calculating banked credits, if necessary.
(6) Trading.
(A) An engine manufacturer may exchange positive in-use emission credits with other LSI engine manufacturers through trading.
(B) In-use credits for trading can be obtained from credits banked for model years prior to the model year of the engine family requiring in-use credits.
(C) Traded in-use credits can be used for averaging, banking, or further trading transactions.
(D) Unless otherwise approved by the Executive Officer, a manufacturer that generates positive in-use credits must wait 30 days after it has both completed in-use testing for the model year for which the credits were generated and submitted the report before it may transfer credits to another manufacturer or broker.
(E) In the event of a negative credit balance resulting from a transaction, both the buyer and the seller are liable, except in cases involving fraud. Engine families participating in a negative trade may be subject to recall under section 2439 of this article.
(7) Credit Calculation.
(A) For each participating engine family, emission credits (positive or negative) are to be calculated according to the following equation and rounded, in accordance with ASTM E29-93a, to the nearest gram. ASTM E29-93a has been incorporated by reference. Consistent units are to be used throughout the equation. The following equation is used to determine the credit status for an engine family whether generating positive or negative in-use emission credits:
Credits (grams) = SALES<>x (STD - CL)<>x POWER<>x AF<< super>>x LF<>x UL
Where:
SALES = the number of eligible sales tracked to the point of first retail
sale in
the U.S. for the given engine family during the model year.
STD = the emission standard in g/bhp-hr as noted in California Code of
Regulations, Title 13, Section 2433.
CL = compliance level of the in-use testing in g/bhp-hr as approved by
ARB.
UL = useful life in hours (5000 hours for engines with displacement)
greater than 1.0 liter.
Power = the average power of an engine family in bhp (sales weighted). The
power of each configuration is the rated output in horsepower as
determined by SAE J1349 (June 1995) or J1995 (June 1995), as
applicable. These procedures have been incorporated by reference.
LF = Load factor; Fraction of rated engine power utilized in-use (0.32
for
engines with displacement greater than 1.0 liter.
AF = adjustment factor for the number of tests conducted, as determined
from the following table, except that when a manufacturer concedes
failure before completion of testing, the adjustment factor shall
be 1.0:

Number of Adjustment
Engines Tested Factor
2 [FNa1], 4 0.5
6 0.75
8 0.9
10 1.0

[FNa1] Small volume manufacturer
(B) Any credits used for either averaging, banking, or trading shall be assessed a one-time discount of 10 percent.
(8) Maintenance of records.
(A) Any manufacturer that is participating in the in-use credit program set forth in this subsection shall establish, maintain, and retain the records with respect to its participation in the in-use credit program.
(B) The Executive Officer may void an Executive Order for an engine family for which the manufacturer fails to retain the records required under this section or to provide such information to the Executive Officer or designee upon request.
(9) Reporting requirements.
(A) Any manufacturer who participates in the in-use credit program is required to submit an end of the model year in-use testing report either within 90 days of the end of the model year in-use testing of a given model year's engine families, or at the same time as the final certification averaging, banking, and trading report, whichever is later. The end of the model year in-use testing report must contain the required information and show the calculated credits from all the in-use testing conducted by the manufacturer for a given model year.
(B) Reports shall be submitted to the Chief of the Mobile Source Operations Division.
(C) A manufacturer that fails to submit a timely report as required will be considered to not have participated in the in-use credit program.
(D) If the Executive Officer or the manufacturer determines that a reporting error occurred on an end of model year report previously submitted to ARB under this subsection, or an engine family in-use testing report submitted to ARB, the manufacturer's credits and credit calculations will be recalculated. Erroneous positive credits will be void. Erroneous negative credits may be adjusted by the Executive Officer. An update of previously submitted "point of first retail sale" information is not considered an error and no increase in the number of credits will be allowed unless an error occurred in the calculation of credits due to an error in the "point of first retail sale" information from the time of the original end of model year report.
(10) Notice of Opportunity for Hearing.
Any voiding of an engine family's Executive Order will occur only after the manufacturer concerned has been offered an opportunity for a hearing. The Executive Officer must approve or disapprove the documents required by this Section within 90 days of the date such documents are received from the manufacturer. Any disapproval must be accompanied by a statement of the reasons therefor. In the event of disapproval, the manufacturer may file for an adjudicative hearing u nder Title 17, California Code of Regulation, Division 3, Chapter 1, Subchapter 1.25 to review the decision of the Executive Officer.


Note: Authority cited: Sections 39600, 39601, 43013, 43018, 43101, 43102 and 43104, Health and Safety Code. Reference: Sections 43013, 43017, 43018, 43101, 43102, 43104, 43105, 43150-43154, 43205.5 and 43210-43212, Health and Safety Code.


s 2439. Procedures for In-Use Engine Recalls for Large Off-Road Spark-Ignition Engines with an Engine Displacement Greater Than 1.0 Liter.
(a) The recall procedures in this section apply as set forth in Title 13, California Code of Regulations, Sections 2433 and 2438.
(b) Voluntary Emissions Recall
(1) When any manufacturer initiates a voluntary emission recall, the manufacturer shall notify the Executive Officer of the recall at least 30 days before owner notification is to begin. The manufacturer shall also submit to the Executive Officer a voluntary recall plan for approval, as prescribed in the following:
(A)(i) a description of each class or category of engines to recall, including the number of engines to be recalled, the engine family or a sub-group thereof, the model year, and such other information as may be required to identify the engines:
(ii) a description of the specific modifications, alterations, repairs, corrections, adjustments, or other changes to be made to correct the engines affected by the nonconformity;
(iii) a description of the method by which the manufacturer will notify engine owners including copies of any letters of notification to be sent to engine owners;
(iv) a description of the proper maintenance or use, if any, upon which the manufacturer conditions eligibility for repair under the recall plan, and a description of the proof to be required of an engine owner to demonstrate compliance with any such conditions;
(v) a description of the procedure to be followed by engine owners to obtain correction of the nonconformity. This shall include designation of the date on or after which the owner can have the nonconformity remedied, the time reasonably necessary to perform the labor to remedy the nonconformity, and the designation of facilities at which the nonconformity can be remedied;
(vi) a description of the class of persons other than dealers and authorized warranty agents of the manufacturer who will remedy the nonconformity;
(vii) a description of the system by which the manufacturer will assure that an adequate supply of parts is available to perform the repair under the plan; or
(B)(i) a description of each class or category of engines subject to recall, including the number of engines subject to being recalled, the engine family or a sub-group thereof, the model year, and such other information as may be required to identify the engines;
(ii) a description of the method by which the manufacturer will use the in-use emissions credit, averaging, banking, and trading program, as described in Section 2438(e), to remedy the nonconformity.
(2) Voluntary Recall Progress Report. A manufacturer who initiates a voluntary emission recall campaign pursuant to paragraph (b)(1)(A) of this section must submit at least one report on the progress of the recall campaign. This report shall be submitted to the Executive Officer by the end of the fifth quarter, as defined in Section 2112(j), Chapter 2, Title 13 of the California Code of Regulations, following the quarter in which the notification of equipment or engine owners was initiated, and include the following information:
(A) Engine family involved and recall campaign number as designated by the manufacturer.
(B) Date owner notification was begun, and date completed.
(C) Number of equipment or engines involved in the recall campaign.
(D) Number of equipment or engines known or estimated to be affected by the nonconformity.
(E) Number of equipment or engines inspected pursuant to the recall plan and found to be affected by the nonconformity.
(F) Number of inspected equipment or engines.
(G) Number of equipment or engines receiving repair under the recall plan.
(H) Number of equipment or engines determined to be unavailable for inspection or repair under the recall plan due to exportation, theft, scrapping, or for other reasons (specify).
(I) Number of equipment or engines determined to be ineligible for recall action due to removed or altered components.
(J) A listing of the identification numbers of equipment or engines subject to recall but for whose repair the manufacturer has not been invoiced. This listing shall be supplied in a standardized computer data storage device to be specified by the Executive Officer.
(K) Any service bulletins transmitted to dealers which relate to the nonconformity and which have not previously been submitted.
(L) All communications transmitted to equipment or engine owners which relate to the nonconformity and which have not previously been submitted.
(3) The information gathered by the manufacturer to compile the reports must be retained for not less than seven years from the date of the manufacture of the engines and must be made available to the Executive Officer or designee of the Executive Officer upon request.
(4) A voluntary recall plan shall be deemed approved unless disapproved by the Executive Officer within 20 business days after receipt of the recall plan.
(5) Under a voluntary recall program, initiated and conducted by a manufacturer or its agent or representative as a result of in-use enforcement testing or other evidence of noncompliance provided or required by the Board to remedy any nonconformity, the capture rate shall be at a minimum 55 percent of the equipment or engine within the subject engine family or a sub-group thereof. The manufacturer shall comply with the capture rate by the end of the fifth quarter, as defined in Section 2112(j), Chapter 2, Title 13 of the California Code of Regulations, following the quarter in which the notification of equipment or engine owners was initiated. If the manufacturer cannot correct the percentage of equipment specified in the plan by the applicable deadlines, the manufacturer must use good faith efforts through other measures, subject to approval by the Executive Officer, to bring the engine family into compliance with the standards. If the Executive Officer does not approve the manufacturer's efforts, the manufacturer shall propose mitigation measures to offset the emissions of the unrepaired equipment within 45 days from the last report filed pursuant to paragraph (b)(2), above. The Executive Officer shall approve such measures provided that: (continued)