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Electronic Code of Federal Regulations

e-CFR Data is current as of April 21, 2014

Title 40: Protection of Environment


PART 94—CONTROL OF EMISSIONS FROM MARINE COMPRESSION-IGNITION ENGINES


Contents

Subpart A—General Provisions for Emission Regulations for Compression-Ignition Marine Engines

§94.1   Applicability.
§94.2   Definitions.
§94.3   Abbreviations.
§94.4   Treatment of confidential information.
§94.5   Reference materials.
§94.6   Regulatory structure.
§94.7   General standards and requirements.
§94.8   Exhaust emission standards.
§94.9   Compliance with emission standards.
§94.10   Warranty period.
§94.11   Requirements for rebuilding certified engines.
§94.12   Interim provisions.

Subpart B—Test Procedures

§94.101   Applicability.
§94.102   General provisions.
§94.103   Test procedures for Category 1 marine engines.
§94.104   Test procedures for Category 2 marine engines.
§94.105   Duty cycles.
§94.106   Supplemental test procedures for Category 1 and Category 2 marine engines.
§94.107   Determination of maximum test speed.
§94.108   Test fuels.
§94.109   Test procedures for Category 3 marine engines.

Subpart C—Certification Provisions

§94.201   Applicability.
§94.202   Definitions.
§94.203   Application for certification.
§94.204   Designation of engine families.
§94.205   Prohibited controls, adjustable parameters.
§94.206   Required information.
§94.207   Special test procedures.
§94.208   Certification.
§94.209   Special provisions for post-manufacture marinizers and small-volume manufacturers.
§94.210   Amending the application and certificate of conformity.
§94.211   Emission-related maintenance instructions for purchasers.
§94.212   Labeling.
§94.213   Submission of engine identification numbers.
§94.214   Production engines.
§94.215   Maintenance of records; submittal of information; right of entry.
§94.216   Hearing procedures.
§94.217   Emission data engine selection.
§94.218   Deterioration factor determination.
§94.219   Durability data engine selection.
§94.220   Service accumulation.
§94.221   Application of good engineering judgment.
§94.222   Certification of engines on imported vessels.

Subpart D—Certification Averaging, Banking, and Trading Provisions

§94.301   Applicability.
§94.302   Definitions.
§94.303   General provisions.
§94.304   Compliance requirements.
§94.305   Credit generation and use calculation.
§94.306   Certification.
§94.307   Labeling.
§94.308   Maintenance of records.
§94.309   Reports.
§94.310   Notice of opportunity for hearing.

Subpart E—Emission-related Defect Reporting Requirements, Voluntary Emission Recall Program

§94.401   Applicability.
§94.402   Definitions.
§94.403   Emission defect information report.
§94.404   Voluntary emissions recall reporting.
§94.405   Alternative report formats.
§94.406   Reports filing: record retention.
§94.407   Responsibility under other legal provisions preserved.
§94.408   Disclaimer of production warranty applicability.

Subpart F—Manufacturer Production Line Testing Programs

§94.501   Applicability.
§94.502   Definitions.
§94.503   General requirements.
§94.504   Right of entry and access.
§94.505   Sample selection for testing.
§94.506   Test procedures.
§94.507   Sequence of testing.
§94.508   Calculation and reporting of test results.
§94.509   Maintenance of records; submittal of information.
§94.510   Compliance with criteria for production line testing.
§94.511   [Reserved]
§94.512   Suspension and revocation of certificates of conformity.
§94.513   Request for public hearing.
§94.514   Administrative procedures for public hearing.
§94.515   Hearing procedures.
§94.516   Appeal of hearing decision.
§94.517   Treatment of confidential information.

Subpart G [Reserved]

Subpart H—Recall Regulations

§94.701   Applicability.
§94.702   Definitions.
§94.703   Applicability of 40 CFR part 85, subpart S.

Subpart I—Importation of Nonconforming Engines

§94.801   Applicability.
§94.802   Definitions.
§94.803   Admission.
§94.804   Exemptions.
§94.805   Prohibited acts; penalties.

Subpart J—Exclusion and Exemption Provisions

§94.901   Purpose and applicability.
§94.902   Definitions.
§94.903   Exclusions.
§94.904   Exemptions.
§94.905   Testing exemption.
§94.906   Manufacturer-owned exemption, display exemption, and competition exemption.
§94.907   Engine dressing exemption.
§94.908   National security exemption.
§94.909   Export exemptions.
§94.910   Granting of exemptions.
§94.911   Submission of exemption requests.
§94.912   Optional certification to land-based standards for auxiliary marine engines.
§94.913   Staged-assembly exemption.
§94.914   Emergency vessel exemption.

Subpart K—Requirements Applicable to Vessel Manufacturers, Owners, and Operators

§94.1001   Applicability.
§94.1002   Definitions.
§94.1003   Production testing, in-use testing, and inspections.
§94.1004   Maintenance, repair, adjustment, and recordkeeping.

Subpart L—General Enforcement Provisions and Prohibited Acts

§94.1101   Applicability.
§94.1102   Definitions.
§94.1103   Prohibited acts.
§94.1104   General enforcement provisions.
§94.1105   Injunction proceedings for prohibited acts.
§94.1106   Penalties.
§94.1107   Warranty provisions.
§94.1108   In-use compliance provisions.
Appendix I to Part 94—Emission-Related Engine Parameters and Specifications

Authority: 42 U.S.C. 7401-7671q.

Source: 64 FR 73331, Dec. 29, 1999, unless otherwise noted.

Subpart A—General Provisions for Emission Regulations for Compression-Ignition Marine Engines

§94.1   Applicability.

(a) Except as noted in paragraphs (b) and (c) of this section, the provisions of this part apply to manufacturers (including post-manufacture marinizers and dressers), rebuilders, owners and operators of:

(1) Marine engines that are compression-ignition engines manufactured (or that otherwise become new) on or after January 1, 2004;

(2) Marine vessels manufactured (or that otherwise become new) on or after January 1, 2004 and which include a compression-ignition marine engine.

(b) Notwithstanding the provisions of paragraph (c) of this section, the requirements and prohibitions of this part do not apply with respect to the engines identified in paragraphs (a)(1) and (2) of this section for any of the following engines:

(1) Marine engines with rated power below 37 kW.

(2) Marine engines on foreign vessels.

(3) Marine engines subject to the standards of 40 CFR part 1042, and marine engines that optionally certify (to the Tier 1 or Tier 2 standards) under the provisions of 40 CFR part 1042. Note that 40 CFR 1042.1 specifies that marine compression-ignition engines that are not certified under this part are subject to 40 CFR part 1042. Such engines may also be subject to the standards of this part 94.

(c) The provisions of Subpart L of this part apply to everyone with respect to the engines identified in paragraph (a) of this section.

(d) This part applies as specified in 40 CFR part 60, subpart IIII, to compression-ignition engines subject to the standards of 40 CFR part 60, subpart IIII.

[67 FR 68341, Nov. 8, 2002, as amended at 68 FR 9780, Feb. 28, 2003; 71 FR 39184, July 11, 2006; 73 FR 37196, June 30, 2008; 75 FR 22981, Apr. 30, 2010]

§94.2   Definitions.

(a) The definitions of this section apply to this subpart. They also apply to all subparts of this part, except where noted otherwise.

(b) As used in this part, all terms not defined in this section shall have the meaning given them in the Act:

Act means the Clean Air Act as amended (42 U.S.C. 7401 et seq.).

Adjustable Parameter means any device, system, or element of design which is physically or electronically capable of being adjusted (including those which are difficult to access) and which, if adjusted, may affect emissions or engine performance during emission testing.

Administrator means the Administrator of the Environmental Protection Agency or his/her authorized representative.

Aftertreatment system or aftertreatment component or aftertreatment technology means any system or component or technology mounted downstream of the exhaust valve or exhaust port whose design function is to reduce exhaust emissions.

Amphibious vehicle means a vehicle with wheels or tracks that is designed primarily for operation on land and secondarily for operation in water.

Annex VI Technical Code means the “Technical Code on Control of Emission of Nitrogen Oxides from Marine Diesel Engines,” adopted by the International Maritime Organization (incorporated by reference in §94.5).

Applicable standard means a standard to which an engine is subject; or, where an engine is certified to another standard or FEL, applicable standard means the other standard or FEL to which the engine is certified, as allowed by §94.8. This definition does not apply to subpart D of this part.

Auxiliary emission control device (AECD) means any element of design which senses temperature, vessel speed, engine RPM, atmospheric pressure, manifold pressure or vacuum, or any other parameter for the purpose of activating, modulating, delaying, or deactivating the operation of any part of the emission control system (including, but not limited to injection timing); or any other feature that causes in-use emissions to be higher than those measured under test conditions.

Averaging means the exchange of emission credits among engine families within a given manufacturer's product line.

Banking means the retention of emission credits by a credit holder for use in future calendar year averaging or trading as permitted by the regulations in this part.

Base engine means a land-based engine to be marinized, as configured prior to marinization.

Blue Sky Series engine means an engine meeting the requirements of §94.7(e).

Brake-specific fuel consumption means the mass of fuel consumed by an engine during a test segment divided by the brake-power output of the engine during that same test segment.

Calibration means the set of specifications, including tolerances, specific to a particular design, version, or application of a component, or components, or assembly capable of functionally describing its operation over its working range.

Category 1 means relating to a marine engine with a rated power greater than or equal to 37 kilowatts and a specific engine displacement less than 5.0 liters per cylinder.

Category 2 means relating to a marine engine with a specific engine displacement greater than or equal to 5.0 liters per cylinder but less than 30 liters per cylinder.

Category 3 means relating to a marine engine with a specific engine displacement greater than or equal to 30 liters per cylinder.

Commercial means relating to an engine or vessel that is not a recreational marine engine or a recreational vessel.

Compliance date means the date on which compliance with a standard becomes mandatory. For example, the compliance date for standards which first apply to the 2004 model year, is January 1, 2004.

Compression-ignition means relating to an engine that is not a spark-ignition engine.

Configuration means any subclassification of an engine family which can be described on the basis of gross power, emission control system, governed speed, injector size, engine calibration, and other parameters as designated by the Administrator.

Constant-speed engine means an engine that is governed to operate only at a single rated speed.

Crankcase emissions means airborne substances emitted to the atmosphere from any portion of the engine crankcase ventilation or engine lubrication system.

Defeat device means an AECD or other control feature that reduces the effectiveness of the emission control system under conditions which may reasonably be expected to be encountered in normal engine operation and use, unless the AECD or other control feature has been identified by the manufacturer in the application for certification, and:

(1) Such conditions are substantially represented by the portion of the applicable duty cycle of §94.105 during which the applicable emission rates are measured;

(2) The need for the AECD or other control feature is justified in terms of protecting the engine or vessel against damage or accident; or

(3) The AECD or other control feature does not go beyond the requirements of engine starting.

Designated Officer means the Manager of the Engine Programs Group (6405-J), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., Washington, DC 20460.

Deterioration factor means the difference between exhaust emissions at the end of useful life and exhaust emissions at the low hour test point expressed as either: the ratio of exhaust emissions at the end of useful life to exhaust emissions at the low hour test point (for multiplicative deterioration factors); or the difference between exhaust emissions at the end of useful life and exhaust emissions at the low hour test point (for additive deterioration factors).

Diesel fuel means any fuel suitable for use in diesel engines which is commonly or commercially known or sold as diesel fuel or marine distillate fuel.

Dresser means any entity that modifies a land-based engine for use in a marine vessel, in compliance with the provisions of §94.907. This means that dressers may not modify the engine in a way that would affect emissions.

Emission control system means those devices, systems or elements of design which control or reduce the emission of substances from an engine. This includes, but is not limited to, mechanical and electronic components and controls, and computer software.

Emission credits means the amount of emission reduction or exceedance, by an engine family, below or above the emission standard, respectively, as calculated under subpart D of this part. Emission reductions below the standard are considered as “positive credits,” while emission exceedances above the standard are considered as “negative credits.” In addition, “projected credits” refer to emission credits based on the projected applicable production/sales volume of the engine family. “Reserved credits” are emission credits generated within a calendar year waiting to be reported to EPA at the end of the calendar year. “Actual credits” refer to emission credits based on actual applicable production/sales volume as contained in the end-of-year reports submitted to EPA.

Emission-data engine means an engine which is tested for purposes of emission certification or production line testing.

Emission-related defect means a defect in design, materials, or workmanship in a device, system, or assembly which affects any parameter or specification enumerated in Appendix I of this part.

Emission-related maintenance means that maintenance which substantially affects emissions or which is likely to affect the deterioration of the engine or vessel with respect to emissions.

Engine family means a group of engine configurations that are expected to have similar emission characteristics throughout the useful lives of the engines (see §94.204), and that are (or were) covered (or requested to be covered) by a specific certificate of conformity.

Engineering analysis means a summary of scientific and/or engineering principles and facts that support a conclusion made by a manufacturer, with respect to compliance with the provisions of this part.

EPA Enforcement Officer means any officer or employee of the Environmental Protection Agency so designated in writing by the Administrator or his/her designee.

Exhaust emissions means substances (i.e., gases and particles) emitted to the atmosphere from any opening downstream from the exhaust port or exhaust valve of an engine.

Exhaust gas recirculation means an emission control technology that reduces emissions by routing gases that had been exhausted from the combustion chamber(s) back into the engine to be mixed with incoming air prior to or during combustion. The use of valve timing to increase the amount of residual exhaust gas in the combustion chamber(s) that is mixed with incoming air prior to or during combustion is not considered to be exhaust gas recirculation for the purposes of this part.

Family Emission Limit (FEL) means an emission level declared by the certifying manufacturer to serve in lieu of an otherwise applicable emission standard for certification and compliance purposes in the averaging, banking and trading program. FELs are expressed to the same number of decimal places as the applicable emission standard.

Foreign vessel means a vessel of foreign registry or a vessel operated under the authority of a country other than the United States.

Fuel system means the combination of fuel tank(s), fuel pump(s), fuel lines and filters, pressure regulator(s), and fuel injection components, fuel system vents, and any other component involved in the delivery of fuel to the engine.

Green Engine Factor means a factor that is applied to emission measurements from an engine that has had little or no service accumulation. The Green Engine Factor adjusts emission measurements to be equivalent to emission measurements from an engine that has had approximately 300 hours of use.

Hydrocarbon standard means an emission standard for total hydrocarbons, nonmethane hydrocarbons, or total hydrocarbon equivalent; or a combined emission standard for NOX and total hydrocarbons, nonmethane hydrocarbons, or total hydrocarbon equivalent.

Identification number means a specification (for example, model number/serial number combination) which allows a particular engine to be distinguished from other similar engines.

Importer means an entity or person who imports engines from a foreign country into the United States (including its territories).

Intermediate Speed means peak torque speed if peak torque speed occurs from 60 to 75 percent of maximum test speed. If peak torque speed is less than 60 percent of maximum test speed, intermediate speed means 60 percent of maximum test speed. If peak torque speed is greater than 75 percent of maximum test speed, intermediate speed means 75 percent of maximum test speed.

Low hour engine means an engine during the interval between the time that normal assembly operations and adjustments are completed and the time that 300 additional operating hours have been accumulated (including hours of operation accumulated during emission testing, if performed).

Malfunction means a condition in which the operation of a component in an engine occurs in a manner other than that specified by the certifying manufacturer (e.g., as specified in the application for certification); or the operation of an engine in that condition.

Manufacturer means any person engaged in the manufacturing or assembling of new engines or importing such engines for resale, or who acts for and is under the control of any such person in connection with the distribution of such engines. The term manufacturer includes post-manufacturer marinizers, but does not include any dealer with respect to new engines received by such person in commerce.

Manufacturer-owned engine means an uncertified marine engine that is owned and controlled by a manufacturer, is used for product development, and is not sold or leased.

Marine engine means a nonroad engine that is installed or intended to be installed on a marine vessel. This includes a portable auxiliary marine engine only if its fueling, cooling, or exhaust system is an integral part of the vessel. There are two kinds of marine engines:

(1) Propulsion marine engine means a marine engine that moves a vessel through the water or directs the vessel's movement.

(2) Auxiliary marine engine means a marine engine not used for propulsion.

Marine vessel has the meaning given in 1 U.S.C. 3, except that it does not include amphibious vehicles. The definition in 1 U.S.C. 3 very broadly includes every craft capable of being used as a means of transportation on water.

Maximum Test Power means:

(1) For Category 1 engines, the power output observed at the maximum test speed with the maximum fueling rate possible.

(2) For Category 2 engines, 90 percent of the power output observed at the maximum test speed with the maximum fueling rate possible.

Maximum test speed means the engine speed defined by §94.107 to be the maximum engine speed to use during testing.

Maximum Test Torque means the torque output observed at the test speed with the maximum fueling rate possible at that speed.

Method of aspiration means the method whereby air for fuel combustion enters the engine (e.g., naturally aspirated or turbocharged).

Model year means the manufacturer's annual new model production period which includes January 1 of the calendar year, ends no later than December 31 of the calendar year, and does not begin earlier than January 2 of the previous calendar year. Where a manufacturer has no annual new model production period, model year means calendar year.

New marine engine means:

(1)(i) A marine engine, the equitable or legal title to which has never been transferred to an ultimate purchaser;

(ii) A marine engine installed on a vessel, the equitable or legal title to such vessel has never been transferred to an ultimate purchaser; or

(iii) A marine engine that has not been placed into service on a vessel.

(2) Where the equitable or legal title to an engine or vessel is not transferred to an ultimate purchaser prior to its being placed into service, the engine ceases to be new after it is placed into service.

(3) With respect to imported engines, the term “new marine engine” means an engine that is not covered by a certificate of conformity under this part at the time of importation, and that was manufactured after the starting date of the emission standards in this part which are applicable to such engine (or which would be applicable to such engine had it been manufactured for importation into the United States).

New vessel means:

(1)(i) A vessel, the equitable or legal title to which has never been transferred to an ultimate purchaser; or

(ii) For vessels with no Category 3 engines, a vessel that has been modified such that the value of the modifications exceeds 50 percent of the value of the modified vessel. The value of the modification is the difference in the assessed value of the vessel before the modification and the assessed value of the vessel after the modification. Use the following equation to determine if the fractional value of the modification exceeds 50 percent:

Percent of value = [(Value after modification) - (Value before modification)] × ( 100% ÷ (Value after modification)

(iii) For vessels with Category 3 engines, a vessel that has undergone a modification, which:

(A) Substantially alters the dimensions or carrying capacity of the vessel; or

(B) Changes the type of vessel; or

(C) Substantially prolongs the vessel's life.

(2) Where the equitable or legal title to a vessel is not transferred to an ultimate purchaser prior to its being placed into service, the vessel ceases to be new when it is placed into service.

Nonconforming marine engine means a marine engine which is not covered by a certificate of conformity prior to importation or being offered for importation (or for which such coverage has not been adequately demonstrated to EPA); or a marine engine which was originally covered by a certificate of conformity, but which is not in a certified configuration, or otherwise does not comply with the conditions of that certificate of conformity.

Note: This definition does not include domestic marine engines which are not covered by a certificate of conformity prior to their introduction into U.S. commerce; such engines are considered to be “noncomplying marine engines.”

Nonroad means relating to nonroad engines, or vessels or equipment that include nonroad engines.

Nonroad engine has the meaning given in 40 CFR 1068.30. In general, this means all internal-combustion engines except motor vehicle engines, stationary engines, engines used solely for competition, or engines used in aircraft.

Oxides of nitrogen means nitric oxide and nitrogen dioxide. Oxides of nitrogen are expressed quantitatively as if the nitric oxide were in the form of nitrogen dioxide (oxides of nitrogen are assumed to have a molecular weight equivalent to nitrogen dioxide).

Passenger has the meaning given by 46 U.S.C. 2101 (21) and (21a). In the context of commercial vessels, this generally means that a passenger is a person that pays to be on the vessel.

Post-manufacture marinizer means an entity that produces a marine engine by modifying a non-marine engine, whether certified or uncertified, complete or partially complete, where such entity is not controlled by the manufacturer of the base engine or by an entity that also controls the manufacturer of the base engine. In addition, vessel manufacturers that substantially modify marine engines are post-manufacture marinizers. For the purpose of this definition, “substantially modify” means changing an engine in a way that could change engine emission characteristics.

Presentation of credentials means the display of the document designating a person as an EPA enforcement officer.

Primary fuel means that type of fuel (e.g., petroleum distillate diesel fuel) that is expected to be consumed in the greatest quantity (volume basis) when the engine is operated in use.

Recreational marine engine means a Category 1 propulsion marine engine that is intended by the manufacturer to be installed on a recreational vessel, and which is permanently labeled as follows:

“THIS ENGINE IS CATEGORIZED AS A RECREATIONAL MARINE ENGINE UNDER 40 CFR PART 94. INSTALLATION OF THIS ENGINE IN ANY NONRECREATIONAL VESSEL IS A VIOLATION OF FEDERAL LAW SUBJECT TO CIVIL PENALTY.”.

Recreational vessel has the meaning given in 46 U.S.C. 2101 (25), but excludes “passenger vessels” and “small passenger vessels” as defined by 46 U.S.C. 2101 (22) and (35) and excludes vessels used solely for competition. In general, for this part, “recreational vessel” means a vessel that is intended by the vessel manufacturer to be operated primarily for pleasure or leased, rented or chartered to another for the latter's pleasure, excluding the following vessels:

(1) Vessels of less than 100 gross tons that carry more than 6 passengers (as defined in this section).

(2) Vessels of 100 gross tons or more that carry one or more passengers (as defined in this section).

(3) Vessels used solely for competition.

Residual fuel means a petroleum product containing the heavier compounds that remain after the distillate fuel oils (e.g., diesel fuel and marine distillate fuel) and lighter hydrocarbons are distilled away in refinery operations.

Round means to round numbers according to ASTM E29-02 (incorporated by reference in §94.5), unless otherwise specified.

Service life means the total life of an engine. Service life begins when the engine is originally manufactured and continues until the engine is permanently removed from service.

Specific emissions means emissions expressed on the basis of observed brake power, using units of g/kW-hr. Observed brake power measurement includes accessories on the engine if these accessories are required for running an emission test (except for the cooling fan). When it is not possible to test the engine in the gross conditions, for example if the engine and transmission form a single integral unit, the engine may be tested in the net condition. Power corrections from net to gross conditions will be allowed with prior approval of the Administrator.

Small-volume boat builder means a boat manufacturer with fewer than 500 employees and with annual U.S.-directed production of fewer than 100 boats. For manufacturers owned by a parent company, these limits apply to the combined production and number of employees of the parent company and all its subsidiaries.

Small-volume manufacturer means a manufacturer with annual U.S.-directed production of fewer than 1,000 internal combustion engines (marine and nonmarine). For manufacturers owned by a parent company, the limit applies to the production of the parent company and all its subsidiaries.

Spark-ignition means relating to a gasoline-fueled engine or other engines with a spark plug (or other sparking device) and with operating characteristics significantly similar to the theoretical Otto combustion cycle. Spark-ignition engines usually use a throttle to regulate intake air flow to control power during normal operation.

Specified by a certificate of conformity or specified in a certificate of conformity means stated or otherwise specified in a certificate of conformity or an approved application for certification.

Test engine means an engine in a test sample.

Test sample means the collection of engines or vessels selected from the population of an engine family for emission testing.

Tier 1 means relating to an engine subject to the Tier 1 emission standards listed in §94.8.

Tier 2 means relating to an engine subject to the Tier 2 emission standards listed in §94.8.

Total Hydrocarbon Equivalent means the sum of the carbon mass contributions of non-oxygenated hydrocarbons, alcohols and aldehydes, or other organic compounds that are measured separately as contained in a gas sample, expressed as petroleum-fueled engine hydrocarbons. The hydrogen-to-carbon ratio of the equivalent hydrocarbon is 1.85:1.

Trading means the exchange of engine emission credits between credit holders.

Ultimate Purchaser means, with respect to any new engine or vessel, the first person who in good faith purchases such new engine or vessel for purposes other than resale.

United States means the States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, Guam, American Samoa, and the U.S. Virgin Islands.

U.S.-directed production volume means the number of marine engine units, subject to this part, produced by a manufacturer for which the manufacturer has reasonable assurance that sale was or will be made to ultimate purchasers in the United States.

Useful life means the period during which an engine is designed to properly function in terms of reliability and fuel consumption, without being remanufactured, specified as hours of operation and years. It is the period during which a new engine is required to comply with all applicable emission standards. (Note: §94.9(a) specifies minimum requirements for useful life values.)

Vessel means a marine vessel.

Vessel operator means any individual that physically operates or maintains a vessel, or exercises managerial control over the operation of the vessel.

Vessel owner means the individual or company that holds legal title to a vessel.

Voluntary emission recall means a repair, adjustment, or modification program voluntarily initiated and conducted by a manufacturer to remedy any emission-related defect for which notification of engine or vessel owners has been provided.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68341, Nov. 8, 2002; 68 FR 9781, Feb. 28, 2003; 68 FR 54960, Sept. 19, 2003; 70 FR 40457, July 13, 2005; 73 FR 37196, June 30, 2008]

§94.3   Abbreviations.

The abbreviations of this section apply to all subparts of this part and have the following meanings:

AECD—Auxiliary emission control device.

API—American Petroleum Institute.

ASTM—American Society for Testing and Materials.

°C—Degrees Celsius.

CH4—Methane.

CI—Compression ignition.

CO—Carbon monoxide.

CO2—Carbon dioxide.

disp.—volumetric displacement of an engine cylinder.

EGR—Exhaust gas recirculation.

EP—End point.

EPA—Environmental Protection Agency.

FEL—Family emission limit.

ft—foot or feet.

FTP—Federal Test Procedure.

g—gram(s).

g/kW-hr—Grams per kilowatt hour.

gal—U.S. gallon.

h—hour(s).

HC—hydrocarbon.

Hg—Mercury.

hp—horsepower.

ICI—Independent Commercial Importer.

in—inch(es).

K—Kelvin.

kg—kilogram(s).

km—kilometer(s).

kPa—kilopascal(s).

kW—kilowatt.

L/cyl—liters per cylinder.

m—meter(s).

max—maximum.

mg—milligram(s).

min—minute.

ml—milliliter(s).

mm—millimeter.

NIST—National Institute for Standards and Testing.

NMHC—Non-methane hydrocarbons.

NTIS—National Technical Information Service.

NO—nitric oxide.

NO2—nitrogen dioxide.

NOX—oxides of nitrogen.

No.—number.

O2—oxygen.

pct—percent.

PM—particulate matter.

PMM—post-manufacture marinizer.

ppm—parts per million by volume.

ppmC—parts per million, carbon.

rpm—revolutions per minute.

s—second(s).

SAE—Society of Automotive Engineers.

SEA—Selective Enforcement Auditing.

SI—International system of units (i.e., metric).

THC—Total hydrocarbon.

THCE—Total hydrocarbon equivalent.

U.S.—United States.

U.S.C.—United States Code.

vs—versus.

W—watt(s).

wt—weight.

[64 FR 73331, Dec. 29, 1999, as amended at 74 FR 56374, Oct. 30, 2009]

§94.4   Treatment of confidential information.

(a) Any manufacturer may assert that some or all of the information submitted pursuant to this part is entitled to confidential treatment as provided by 40 CFR part 2, subpart B.

(b) Any claim of confidentiality must accompany the information at the time it is submitted to EPA.

(c) To assert that information submitted pursuant to this part is confidential, a person or manufacturer must indicate clearly the items of information claimed confidential by marking, circling, bracketing, stamping, or otherwise specifying the confidential information. Furthermore, EPA requests, but does not require, that the submitter also provide a second copy of its submittal from which all confidential information has been deleted. If a need arises to publicly release nonconfidential information, EPA will assume that the submitter has accurately deleted the confidential information from this second copy.

(d) If a claim is made that some or all of the information submitted pursuant to this part is entitled to confidential treatment, the information covered by that confidentiality claim will be disclosed by EPA only to the extent and by means of the procedures set forth in 40 CFR part 2, subpart B.

(e) Information provided without a claim of confidentiality at the time of submission may be made available to the public by EPA without further notice to the submitter, in accordance with 40 CFR 2.204(c)(2)(i)(A).

§94.5   Reference materials.

The materials listed in this section are incorporated by reference into this part with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that specified in this section, a document must be published in the Federal Register and the material must be available to the public. All approved materials are available for inspection at the Air and Radiation Docket and Information Center (Air Docket) in the EPA Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution Ave. NW., Washington, DC. The EPA/DC Public Reading Room hours of operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number of the EPA/DC Public Reading Room is (202) 566-1744, and the telephone number for the Air Docket is (202) 566-1742. These approved materials are also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030 or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. In addition, these materials are available from the sources listed below.

(a) ASTM material. Copies of these materials may be obtained from ASTM International, 100 Barr Harbor Dr., P.O. Box C700, West Conshohocken, PA 19428-2959, or by calling (877) 909-ASTM, or at http://www.astm.org.

(1) ASTM D86-01, Standard Test Method for Distillation of Petroleum Products at Atmospheric Pressure, IBR approved for §94.108.

(2) ASTM D93-09 (Approved December 15, 2009), Standard Test Methods for Flash Point by Pensky-Martens Closed Cup Tester, IBR approved for §94.108.

(3) ASTM D129-00, Standard Test Method for Sulfur in Petroleum Products (General Bomb Method), IBR approved for §94.108.

(4) ASTM D287-92 (Reapproved 2000), Standard Test Method for API Gravity of Crude Petroleum and Petroleum Products (Hydrometer Method), IBR approved for §94.108.

(5) ASTM D445-09 (Approved July 1, 2009), Standard Test Method for Kinematic Viscosity of Transparent and Opaque Liquids (and Calculation of Dynamic Viscosity), IBR approved for §94.108.

(6) ASTM D613-01, Standard Test Method for Cetane Number of Diesel Fuel Oil, IBR approved for §94.108.

(7) ASTM D1319-02a, Standard Test Method for Hydrocarbon Types in Liquid Petroleum Products by Fluorescent Indicator Adsorption, IBR approved for §94.108.

(8) ASTM D2622-98, Standard Test Method for Sulfur in Petroleum Products by Wavelength Dispersive X-ray Fluorescence Spectrometry, IBR approved for §94.108.

(9) ASTM D5186-99, Standard Test Method for Determination of the Aromatic Content and Polynuclear Aromatic Content of Diesel Fuels and Aviation Turbine Fuels by Supercritical Fluid Chromatography, IBR approved for §94.108.

(10) ASTM E 29-02, Standard Practice for Using Significant Digits in Test Data to Determine Conformance with Specifications, IBR approved for §94.2.

(b) IMO material. Copies of these materials may be obtained from the International Maritime Organization, 4 Albert Embankment, London SE1 7SR, United Kingdom, or by calling +44-(0)020-7735-7611, or at http://www.imo.org.

(1) Resolution 2—Technical Code on Control of Emission of Nitrogen Oxides from Marine Diesel Engines, 1997, IBR approved for §§94.2, 94.11, 94.108, 94.109, 94.204, 94.211, 94.1004.

(2) [Reserved]

(c) ISO material. Copies of these materials may be obtained from the International Organization for Standardization, 1, ch. de la Voie-Creuse, CP 56, CH-1211 Geneva 20, Switzerland, or by calling +41-22-749-01-11, or at http://www.iso.org.

(1) ISO 8178-1, Reciprocating internal combustion engines—Exhaust emission measurement—Part 1: Test-bed measurement of gaseous and particulate exhaust emissions, 1996, IBR approved for §94.109.

(2) [Reserved]

[77 FR 2463, Jan. 18, 2012]

§94.6   Regulatory structure.

This section provides an overview of the regulatory structure of this part.

(a) The regulations of this Part 94 are intended to control emissions from in-use marine engines.

(b) The engines for which the regulations of this part (i.e., 40 CFR part 94) apply are specified by §94.1, and by the definitions of §94.2. The point at which an engine or vessel becomes subject to the regulations of this part is determined by the definitions of new marine engine and new marine vessel in §94.2. Subpart J of this part contains provisions exempting certain engines and vessels from the emission standards in this part under special circumstances.

(c) To comply with the requirements of this part, a manufacturer must demonstrate to EPA that the engine meets the applicable standards of §§94.7 and 94.8, and all other requirements of this part. The requirements of this certification process are described in subparts C and D of this part.

(d) Subpart B of this part specifies procedures and equipment to be used for conducting emission tests for the purpose of the regulations of this part.

(e) Subparts E, F, and H of this part specify requirements for manufacturers after certification; that is during production and use of the engines.

(f) Subpart I of this part contains requirements applicable to the importation of marine engines covered by the provisions of this part.

(g) Subpart L of this part describes prohibited acts and contains other enforcement provisions relating to marine engines and vessels covered by the provisions of this part.

(h) Unless specified otherwise, the provisions of this part apply to all marine engines and vessels subject to the emission standards of this part.

§94.7   General standards and requirements.

(a) Marine engines and vessels may not be equipped with a defeat device.

(b) An engine may not be equipped with an emission control system for the purpose of complying with emission standards if such a system will cause or contribute to an unreasonable risk to public health, welfare, or safety in its operation or function.

(c) You may not design your engines with emission-control devices, systems, or elements of design that cause or contribute to an unreasonable risk to public health, welfare, or safety while operating. For example, this would apply if the engine emits a noxious or toxic substance it would otherwise not emit that contributes to such an unreasonable risk.

(d) Manufacturers shall ensure that all engines subject to the emission standards of this part are equipped with a connection in the engine exhaust system that is located downstream of the engine and before any point at which the exhaust contacts water (or any other cooling/scrubbing medium) for the temporary attachment of gaseous and/or particulate emission sampling equipment. Use good engineering judgment to locate the connection. This connection shall be internally threaded with standard pipe threads of a size not larger than one-half inch, and shall be closed by a pipe-plug when not in use. Equivalent connections are allowed. Engine manufacturers may comply with this requirement by providing vessel manufacturers with clear instructions explaining how to meet this requirement, and noting in the instructions that failure to comply may subject the vessel manufacturer to federal penalties. Vessel manufacturers are required to comply with the engine manufacturer's instructions.

(e) Electronically controlled engines subject to the emission standards of this part shall broadcast on engine's controller area networks engine torque (as percent of maximum torque at that speed) and engine speed.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68341, Nov. 8, 2002; 68 FR 9782, Feb. 28, 2003]

§94.8   Exhaust emission standards.

(a) The Tier 1 standards of paragraph (a)(1) of this section apply until replaced by the standards of paragraph (a)(2) of this section.

(1) Tier 1 standards. NOX emissions from model year 2004 and later engines with displacement of 2.5 or more liters per cylinder may not exceed the following values:

(i) 17.0 g/kW-hr when maximum test speed is less than 130 rpm.

(ii) 45.0 × N−0.20 when maximum test speed is at least 130 but less than 2000 rpm, where N is the maximum test speed of the engine in revolutions per minute.

(Note: Round speed-dependent standards to the nearest 0.1 g/kW-hr.)

(iii) 9.8 g/kW-hr when maximum test speed is 2000 rpm or more.

(2) Tier 2 standards. (i) Exhaust emissions from marine compression-ignition engines shall not exceed the applicable Tier 2 exhaust emission standards contained in Table A-1 as follows:

Table A-1—Primary Tier 2 Exhaust Emission Standards (g/kW-hr)

Engine Size liters/cylinder, rated power Category Model yearaTHC+NOX g/kW-hr CO g/kW-hr PM g/kW-hr
disp. <0.9 and power ≥37 kWCategory 1, Commercial20057.55.00.40
   Category 1, Recreational20077.55.00.40
0.9 ≤disp. <1.2 all power levelsCategory 1, Commercial20047.25.00.30
   Category 1, Recreational20067.25.00.30
1.2 ≤disp. <2.5 all power levelsCategory 1, Commercial20047.25.00.20
   Category 1, Recreational20067.25.00.20
2.5 ≤disp. <5.0 all power levelsCategory 1, Commercial20077.25.00.20
   Category 1, Recreational20097.25.00.20
5.0 ≤disp. <15.0 all power levelsCategory 220077.85.00.27
15.0 ≤disp. <20.0 power <3300 kWCategory 220078.75.00.50
15.0 ≤disp. <20.0 power ≥3300 kWCategory 220079.85.00.50
20.0 ≤disp. <25.0 all power levelsCategory 220079.85.00.50
25.0 ≤disp. <30.0 all power levelsCategory 2200711.05.00.50
disp. ≥30.0 all power levelsCategory 3See paragraph (a)(2)(ii) of this section

aThe model years listed indicate the model years for which the specified standards start.

(ii) EPA has not finalized Tier 2 standards for Category 3 engines. EPA will promulgate final Tier 2 standards for Category 3 engines on or before December 17, 2009.

(b) Exhaust emissions of oxides of nitrogen, carbon monoxide, hydrocarbon, and particulate matter (and other compounds, as applicable) shall be measured using the procedures set forth in subpart B of this part.

(c) In lieu of the THC+NOX standards, and PM standards specified in paragraph (a) of this section, manufacturers may elect to include engine families in the averaging, banking, and trading program, the provisions of which are specified in subpart D of this part. The manufacturer shall then set a family emission limit (FEL) which will serve as the standard for that engine family. The ABT provisions of subpart D of this part do not apply for Category 3 engines.

(d)(1) Naturally aspirated engines subject to the standards of this section shall not discharge crankcase emissions into the ambient atmosphere.

(2) For engines using turbochargers, pumps, blowers, or superchargers for air induction, if the engine discharges crankcase emissions into the ambient atmosphere in use, these crankcase emissions shall be included in all exhaust emission measurements. This requirement applies only for engines subject to hydrocarbon standards (e.g., THC standards, NMHC standards, or THC+NOX standards).

(3) The crankcase requirements of this paragraph (d) do not apply for Tier 1 engines.

(e) Exhaust emissions from Category 1 and Category 2 propulsion engines subject to the standards (or FELs) in paragraph (a), (c), or (f) of this section shall not exceed:

(1) Commercial marine engines. (i) 1.20 times the applicable standards (or FELs) when tested in accordance with the supplemental test procedures specified in §94.106 at loads greater than or equal to 45 percent of the maximum power at rated speed or 1.50 times the applicable standards (or FELs) at loads less than 45 percent of the maximum power at rated speed.

(ii) As an option, the manufacturer may choose to comply with limits of 1.25 times the applicable standards (or FELs) when tested over the whole power range in accordance with the supplemental test procedures specified in §94.106, instead of the limits in paragraph (e)(1)(i) of this section.

(2) Recreational marine engines. (i) 1.20 times the applicable standards (or FELs) when tested in accordance with the supplemental test procedures specified in §94.106 at loads greater than or equal to 45 percent of the maximum power at rated speed and speeds less than 95 percent of maximum test speed, or 1.50 times the applicable standards (or FELs) at loads less than 45 percent of the maximum power at rated speed, or 1.50 times the applicable standards (or FELs) at any loads for speeds greater than or equal to 95 percent of the maximum test speed.

(ii) As an option, the manufacturer may choose to comply with limits of 1.25 times the applicable standards (or FELs) when tested over the whole power range in accordance with the supplemental test procedures specified in §94.106, instead of the limits in paragraph (e)(2)(i) of this section.

(f) The following define the requirements for low-emitting Blue Sky Series engines:

(1) Voluntary standards. (i) Category 1 and Category 2 engines may be designated “Blue Sky Series” engines by meeting the voluntary standards listed in Table A-2, which apply to all certification and in-use testing:

Table A-2—Voluntary Emission Standards [g/kW-hr]

Rated brake power (kW) THC+NOX PM
Power ≥37 kW, and displ. <0.94.00.24
0.9 ≤displ. <1.24.00.18
1.2 ≤displ. <2.54.00.12
2.5 ≤displ. <55.00.12
5 ≤displ. <155.00.16
15 ≤disp. <20, and power <3300 kW5.20.30
15 ≤disp. <20, and power ≥3300 kW5.90.30
20 ≤disp. <255.90.30
25 ≤disp. <306.60.30

(ii) Category 3 engines may be designated “Blue Sky Series” engines by meeting these voluntary standards that would apply to all certification and in-use testing:

(A) A NOX standard of 9.0 × N−0.20 where N = the maximum test speed of the engine in revolutions per minute (or 4.8 g/kW-hr for engines with maximum test speeds less than 130 rpm). (Note: Round speed-dependent standards to the nearest 0.1 g/kW-hr.)

(B) An HC standard of 0.4 g/kW-hr.

(C) A CO standard of 3.0 g/kW-hr.

(2) Additional standards. Blue Sky Series engines are subject to all provisions that would otherwise apply under this part.

(3) Test procedures. Manufacturers may use an alternate procedure to demonstrate the desired level of emission control if approved in advance by the Administrator.

(g) Standards for alternative fuels. The standards described in this section apply to compression-ignition engines, irrespective of fuel, with the following two exceptions for Category 1 and Category 2 engines:

(1) Engines fueled with natural gas shall comply with NMHC+NOX standards that are numerically equivalent to the THC+NOX described in paragraph (a) of this section; and

(2) Engines fueled with alcohol fuel shall comply with THCE+NOX standards that are numerically equivalent to the THC+NOX described in paragraph (a) of this section.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68342, Nov. 8, 2002; 68 FR 9782, Feb. 28, 2003; 68 FR 54960, Sept. 19, 2003; 72 FR 68525, Dec. 5, 2007]

§94.9   Compliance with emission standards.

(a) The general standards and requirements in §94.7 and the emission standards in §94.8 apply to each new engine throughout its useful life period. The useful life is specified both in years and in hours of operation, and ends when either of the values (hours of operation or years) is exceeded.

(1) The minimum useful life is:

(i) 10 years or 1,000 hours of operation for recreational Category 1 engines.

(ii) 10 years or 10,000 hours of operation for commercial Category 1 engines.

(iii) 10 years or 20,000 hours of operation for Category 2 engines.

(iv) 3 years or 10,000 hours of operation for Category 3 engines.

(2) The manufacturer shall specify a longer useful life if the engine is designed to remain in service longer than the applicable minimum useful life without being rebuilt. A manufacturer's recommended time to remanufacture/rebuild longer than the minimum useful life is one indicator of a longer design life.

(3) Manufacturers may request in the application for certification that we approve a shorter useful life for an engine family. We may approve a shorter useful life, in hours of engine operation but not in years, if we determine that these engines will rarely operate longer than the shorter useful life. If engines identical to those in the engine family have already been produced and are in use, the demonstration must include documentation from such in-use engines. In other cases, the demonstration must include an engineering analysis of information equivalent to such in-use data, such as data from research engines or similar engine models that are already in production. The demonstration must also include recommended overhaul intervals, any mechanical warranty offered for the engine or its components, and any relevant customer design specifications. The demonstration may include any other relevant information. The useful life value may not be shorter than any of the following:

(i) 1,000 hours of operation.

(ii) The recommended overhaul interval.

(iii) The mechanical warranty for the engine.

(b) Certification is the process by which manufacturers apply for and obtain certificates of conformity from EPA, which allows the manufacturer to introduce into commerce new marine engines for sale or use in the U.S.

(1) Compliance with the applicable emission standards by an engine family shall be demonstrated by the certifying manufacturer before a certificate of conformity may be issued under §94.208. Manufacturers shall demonstrate compliance using emission data, measured using the procedures specified in Subpart B of this part, from a low hour engine. A development engine that is equivalent in design to the marine engines being certified may be used for Category 2 or Category 3 certification.

(2) The emission values to compare with the standards shall be the emission values of a low hour engine, or a development engine, adjusted by the deterioration factors developed in accordance with the provisions of §94.219. Before comparing any emission value with the standard, round it to the same number of significant figures contained in the applicable standard.

(c) Upon request by the manufacturer, the Administrator may limit the applicability of exhaust emission requirements of §94.8(e) as necessary for safety or to otherwise protect the engine.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68342, Nov. 8, 2002; 68 FR 9783, Feb. 28, 2003; 68 FR 54960, Sept. 19, 2003; 70 FR 40458, July 13, 2005]

§94.10   Warranty period.

(a)(1) Warranties imposed by §94.1107 for Category 1 or Category 2 engines shall apply for a period of operating hours equal to at least 50 percent of the useful life in operating hours or a period of years equal to at least 50 percent of the useful life in years, whichever comes first.

(2) Warranties imposed by §94.1107 for Category 3 engines shall apply for a period of operating hours equal to at least the full useful life in operating hours or a period of years equal to at least the full useful life in years, whichever comes first.

(b) Warranties imposed by §94.1107 shall apply for a period not less than any mechanical warranties provided by the manufacturer to the owner.

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9784, Feb. 28, 2003]

§94.11   Requirements for rebuilding certified engines.

(a) The provisions of this section apply with respect to engines subject to the standards prescribed in §94.8 and are applicable to the process of engine rebuilding. Engine rebuilding means to overhaul an engine or to otherwise perform extensive service on the engine (or on a portion of the engine or engine system). For the purpose of this definition, perform extensive service means to disassemble the engine (or portion of the engine or engine system), inspect and/or replace many of the parts, and reassemble the engine (or portion of the engine or engine system) in such a manner that significantly increases the service life of the resultant engine.

(b) When rebuilding an engine, portions of an engine, or an engine system, there must be a reasonable technical basis for knowing that the resultant engine is equivalent, from an emissions standpoint, to a certified configuration (i.e., tolerances, calibrations, specifications), and the model year(s) of the resulting engine configuration must be identified. A reasonable basis would exist if:

(1) Parts installed, whether the parts are new, used, or rebuilt, are such that a person familiar with the design and function of motor vehicle engines would reasonably believe that the parts perform the same function with respect to emission control as the original parts; and

(2) Any parameter adjustment or design element change is made only:

(i) In accordance with the original engine manufacturer's instructions; or

(ii) Where data or other reasonable technical basis exists that such parameter adjustment or design element change, when performed on the engine or similar engines, is not expected to adversely affect in-use emissions.

(c) When an engine is being rebuilt and remains installed or is reinstalled in the same vessel, it must be rebuilt to a configuration of the same or later model year as the original engine. When an engine is being replaced, the replacement engine must be an engine of (or rebuilt to) a certified configuration that is equivalent, from an emissions standpoint, to the engine being replaced.

(d) At time of rebuild, emission-related codes or signals from on-board monitoring systems may not be erased or reset without diagnosing and responding appropriately to the diagnostic codes, regardless of whether the systems are installed to satisfy requirements in §94.211 or for other reasons and regardless of form or interface. Diagnostic systems must be free of all such codes when the rebuilt engine is returned to service. Such signals may not be rendered inoperative during the rebuilding process.

(e)(1) When conducting a rebuild, all critical emission-related components listed in Appendix I of this part not otherwise addressed by paragraphs (b) through (d) of this section must be checked and cleaned, adjusted, repaired, or replaced as necessary, following manufacturer recommended practices.

(2) During the installation of a rebuilt engine, all critical emission-related components listed in Appendix I of this part not otherwise addressed by paragraphs (b) through (d) of this section must be checked as necessary, following manufacturer recommended practices.

(f) Records shall be kept by parties conducting activities included in paragraphs (b) through (e) of this section. At minimum the records shall include the hours of operation at the time of rebuild, a listing of work performed on the engine and emission-related control components (including a listing of parts and components used, engine parameter adjustments, emission-related codes or signals responded to and reset), and work performed under paragraph (e) of this section.

(1) Parties may keep records in whatever format or system they choose as long as the records are understandable to an EPA enforcement officer or can be otherwise provided to an EPA enforcement officer in an understandable format when requested.

(2) Parties are not required to keep records of information that is not reasonably available through normal business practices including information on activities not conducted by themselves or information that they cannot reasonably access.

(3) Parties may keep records of their rebuilding practices for an engine family rather than on each individual engine rebuilt in cases where those rebuild practices are followed routinely.

(4) Records must be kept for a minimum of two years after the engine is rebuilt.

(g) For Category 3 engines, the owner and operator shall also comply with the recordkeeping requirements in the Annex VI Technical Code (incorporated by reference at §94.5) regarding the Engine Book of Record Parameters.

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9784, Feb. 28, 2003]

§94.12   Interim provisions.

This section contains provisions that apply for a limited number of calendar years or model years. These provisions supercede the other provisions of this part. The provisions of this section do not apply for Category 3 engines.

(a) Compliance date of standards. Certain companies may delay compliance with emission standards. Companies wishing to take advantage of this provision must inform the Designated Officer of their intent to do so in writing before the date that compliance with the standards would otherwise be mandatory.

(1) Post-manufacture marinizers may elect to delay the model year of the Tier 2 standards for commercial engines as specified in §94.8 by one year for each engine family.

(2) Small-volume manufacturers may elect to delay the model year of the Tier 2 standards for recreational engines as specified in §94.8 by five years for each engine family.

(b) Early banking of emission credits. (1) A manufacturer may optionally certify engines manufactured before the date the Tier 2 standards take effect to earn emission credits under the averaging, banking, and trading program. Such optionally certified engines are subject to all provisions relating to mandatory certification and enforcement described in this part. Manufacturers may begin earning credits for recreational engines on December 9, 2002.

(2) Consistent with the provisions of Subpart D of this part, NOX and PM emission credits may be generated from engines prior to the applicable effective compliance date of the applicable standard (i.e., the effective compliance date in §94.8(a), as applicable), relative to baseline emission rates.

(3)(i) THC+NOX credits generated under this paragraph (b) shall be calculated as specified in §92.305, except that the baseline emission rate may be either the applicable standard or a measured THC+NOX baseline level for the configuration with the lowest NOX emission rate in the applicable engine family. The additional credits resulting from using a measured baseline (instead of the applicable standard) shall be discounted by 10 percent. This discount does not apply to the portion of the credits resulting from the engine's emissions being below the applicable standard. Baseline emission rates may not exceed the IMO NOX limits.

(ii) PM credits generated under this paragraph (b) shall be calculated as specified in §94.305, except that the applicable standard may be replaced by a measured PM baseline emission rate for the configuration with the lowest NOX emission rate in the applicable engine family that is approved in advance by the Administrator. The additional credits resulting from using a measured baseline (instead of the applicable standard) shall be discounted by 10 percent. This discount does not apply to the portion of the credits resulting from the engine's emissions being below the applicable standard.

(4)(i) For post-manufacture marinizers, measured baseline emission levels may be based on emissions from a single engine for each engine family.

(ii) For all other manufacturers, measured baseline emission levels must be based on the average of emissions from at least three engines for each engine family.

(iii) The Administrator must approve any measured baselines in advance.

(5) For an engine to be eligible to generate early credits under this paragraph (b), its certified emission levels for all pollutants must be below the Tier 2 standards listed in §94.8, with the following exception: PMMs may include in this early credit program Category 1 marine engines with certified emissions above the Tier 2 standards listed in §94.8. Early credits generated by Category 1 marine engines with certified emissions above the Tier 2 standards listed in §94.8 may not be used for model year 2008 or later engines.

(c) Testing of Category 1 engines subject to the requirements of this part that is conducted by the Administrator shall be performed using test fuels that meet the specifications in §94.108 and have a sulfur content no higher than 0.20 weight percent, unless the PM emission rates are corrected for the effect of a higher fuel sulfur content.

(d) Post-manufacture marinizers may import an uncertified engine for marinization, in cases where the engine in the final marinized configuration is not subject to the standards of this part because:

(1) The model year of the marinized engine is prior to the first model year for which engines of that size are subject to the standards;

(2) The post-manufacture marinizer is marinizing the engine under paragraph (a) of this section; or

(3) The post-manufacture marinizer is granted hardship relief from the Tier 2 standards under §94.209(c).

(e) Compliance date of NTE requirements (1) Notwithstanding the other provisions of this part, the requirements of §94.8(e) for commercial marine engines start with 2010 model year engines for post-manufacture marinizers and 2007 model year engines for all other engine manufacturers.

(2) Notwithstanding the other provisions of this part, the requirements of §94.8(e) for recreational marine engines start with 2012 model year engines for post-manufacture marinizers and 2009 model year engines for all other engine manufacturers.

(f) Manufacturers may submit test data collected using the Annex VI test procedures to show compliance with Tier 1 standards for model years before 2007. Note: Starting in 2007, EPA may approve a manufacturer's request to continue using alternate procedures under §94.102(c), as long as the manufacturer satisfies EPA that the differences in testing will not affect NOX emission rates.

(g) Flexibility for engines over 560kW. Notwithstanding the other provisions of this part, manufacturers may choose to delay certification of marine engines with less than 2.5 liters per cylinder and rated power above 560 kW, that are derived from a land-based nonroad engine with a rated power greater than 560 kW, if they do all of the following:

(1) Certify all of their applicable marine engines with less than 2.5 liters per cylinder and rated power above 560 kW to a NOX standard of 6.4 g/kW-hr for model years 2008 through 2012.

(2) Notify EPA in writing before 2004 of their intent to use this provision. This notification must include a signed statement certifying that the manufacturer will comply with all the provisions of this paragraph (g).

(3) Add a permanent, legible label, written in block letters in English, to a readily visible part of each engine exempted under this paragraph (f). This label must include at least the following items:

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

(ii) Your corporate name and trademark.

(iii) Engine displacement (in liters), rated power, and model year of the engine or whom to contact for further information.

(iv) The statement “THIS ENGINE IS EXEMPT UNDER 40 CFR 94.12(g) FROM EMISSION STANDARDS AND RELATED REQUIREMENTS.”.

(h) Flexibility for small-volume boat builders. Notwithstanding the other provisions of this part, manufacturers may sell uncertified recreational engines to small-volume boat builders during the first five years for which the emission standards in §94.8 apply, subject to the following provisions:

(1) The U.S.-directed production volume of boats from any small-volume boat builder using uncertified engines during the total five-year period may not exceed 80 percent of the manufacturer's average annual production for the three years prior to the general applicability of the recreational engine standards in §94.8, except as allowed in paragraph (h)(2) of this section.

(2) Small-volume boat builders may exceed the production limits in paragraph (h)(1) of this section, provided they do not exceed 20 boats during the five-year period or 10 boats in any single calendar year. This does not apply to boats powered by engines with displacement greater than 2.5 liters per cylinder.

(3) Small-volume boat builders must keep records of all the boats and engines produced under this paragraph (h), including boat and engine model numbers, serial numbers, and dates of manufacture. Records must also include information verifying compliance with the limits in paragraph (h)(1) or (2) of this section. Keep these records until at least two full years after you no longer use the provisions in this paragraph (h).

(4) Manufacturers must add a permanent, legible label, written in block letters in English, to a readily visible part of each engine exempted under this paragraph (h).

This label must include at least the following items:

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

(ii) Your corporate name and trademark.

(iii) Engine displacement (in liters), rated power, and model year of the engine or whom to contact for further information.

(iv) The statement “THIS ENGINE IS EXEMPT UNDER 40 CFR 94.12(h)

FROM EMISSION STANDARDS AND RELATED REQUIREMENTS.”.

(i) Early use of future provisions. For model years 2009 through 2013, certain marine engines will be subject to the requirements of this part 94 while others will be subject to the requirements of 40 CFR part 1042. Manufacturers may ask for flexibility in making the transition to the new regulations as follows:

(1) You may ask to use a combination of the test procedures of this part and those of 40 CFR part 1042. This might include the early use of the duty cycles and NTE specifications that apply for Tier 3 or Tier 4 engines. We will approve your request only if you show us that it does not affect your ability to demonstrate compliance with the applicable emission standards. This generally requires that the combined procedures would result in emission measurements at least as high as those that would be measured using the procedures specified in this part. Alternatively, you may demonstrate that the combined effects of the procedures is small relative to your compliance margin (the degree to which your engines are below the applicable standards).

(2) You may ask to comply with the administrative requirements of 40 CFR parts 1042 and 1068 instead of the equivalent requirements of this part.

(j) Transition to new category thresholds. Beginning model year 2012, engines with maximum engine power at or below 3700 kW with per-cylinder displacement at or above 5.0 liters and below 7.0 liters are Category 1 engines subject to 40 CFR part 1042. Similarly, beginning model year 2014, engines with maximum engine power above 3700 kW with per-cylinder displacement at or above 5.0 liters and below 7.0 liters are Category 1 engines subject to 40 CFR part 1042. For purposes of this paragraph (j), maximum engine power has the meaning given in 40 CFR 1042.901.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68343, Nov. 8, 2002; 68 FR 9784, Feb. 28, 2003; 68 FR 54960, Sept. 19, 2003; 69 FR 9215, Feb. 27, 2004; 70 FR 40458, July 13, 2005; 73 FR 37196, June 30, 2008; 75 FR 22981, Apr. 30, 2010]

Subpart B—Test Procedures

§94.101   Applicability.

Provisions of this subpart apply for testing performed by the Administrator or a manufacturer.

§94.102   General provisions.

(a) The test procedures specified in this part are intended to produce emission measurements that are equivalent to emission measurements that would result from emission tests performed during in-use operation using the same engine configuration installed in a vessel.

(b) Test procedures otherwise allowed by the provisions of this subpart shall not be used where such procedures are not consistent with good engineering practice and the regulatory goal specified in paragraph (a) of this section.

(c) Alternate test procedures may be used if shown to yield equivalent results, and if approved in advance by the Administrator.

§94.103   Test procedures for Category 1 marine engines.

(a) Gaseous and particulate emissions shall be measured using the test procedures specified in 40 CFR part 89, except as otherwise specified in this subpart.

(b) The Administrator may specify changes to the provisions of paragraph (a) of this section that are necessary to comply with the general provisions of §94.102.

(c) Measure CH4 as specified in 40 CFR 1042.235 starting in the 2012 model year.

[64 FR 73331, Dec. 29, 1999, as amended at 74 FR 56374, Oct. 30, 2009]

§94.104   Test procedures for Category 2 marine engines.

(a) Gaseous and particulate emissions shall be measured using the test procedures specified in 40 CFR part 92, except as otherwise specified in this subpart.

(b)(1) The requirements of 40 CFR part 92 related to charge air temperatures, engine speed and load, and engine air inlet restriction pressures do not apply for marine engines.

(2) For marine engine testing, charge air temperatures, engine speed and load, and engine air inlet restriction pressures shall be representative of typical in-use marine engine conditions.

(c) Conduct testing at ambient temperatures from 13 °C to 30 °C.

(d) The Administrator may specify changes to the provisions of paragraph (a) of this section that are necessary to comply with the general provisions of §94.102.

(e) Measure CO2 as described in 40 CFR 92.129 through the 2010 model year. Measure CO2 as specified in 40 CFR 1042.235 starting in the 2011 model year. Measure CH4 as specified in 40 CFR 1042.235 starting in the 2012 model year.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68343, Nov. 8, 2002; 74 FR 56374, Oct. 30, 2009]

§94.105   Duty cycles.

(a) Overview. For the purpose of determining compliance with the emission standards of §94.8, except for those in §94.8(e), engines shall be tested using the appropriate duty cycles described in this section.

(b) General cycle. Propulsion engines that are used with (or intended to be used with) fixed-pitch propellers, propeller-law auxiliary engines, and any other engines for which the other duty cycles of this section do not apply, shall be tested using the duty cycle described in the following Table B-1:

Table B-1—General Marine Duty Cycle

Mode No.Engine speed1 (percent of maximum test speed)Percent of maximum test power2Minimum time in mode
(minutes)
Weighting factors
11001005.00.20
291755.00.50
380505.00.15
463255.00.15

1Engine speed: ±2 percent of point.

2Power: ±2 percent of engine maximum value.

(c) Variable-pitch and electrically coupled propellers. (1) Constant-speed propulsion engines that are used with (or intended to be used with) variable-pitch propellers or with electrically coupled propellers shall be tested using the duty cycle described in the following Table B-2:

Table B-2—Duty Cycle for Constant-Speed Propulsion Engines

Mode No.Engine speed1 (percent of maximum test speed)Percent of maximum test power2Minimum time in mode
(minutes)
Weighting factors
11001005.00.20
2100755.00.50
3100505.00.15
4100255.00.15

1Engine speed: ±2 percent of point.

2Power: ±2 percent of engine maximum value.

(2) For the purpose of determining compliance with the emission standards of §94.8, variable-speed propulsion engines that are used with (or intended to be used with) variable-pitch propellers or with electrically coupled propellers shall be tested using the duty cycle described in Table B-3, which follows:

Table B-3—Duty Cycle for Variable Speed Propulsion Engines Used on Non-Propeller Law Vessels and for Variable Speed Auxiliary Engines

Test segmentMode No.Engine speed1Percent of maximum test torque2Minimum time in mode
(minutes)
Weighting factors
11Maximum Test Speed1005.00.15
12Maximum Test Speed755.00.15
13Maximum Test Speed505.00.15
14Maximum Test Speed105.00.10
25Intermediate1005.00.10
26Intermediate755.00.10
27Intermediate505.00.10
28Idle05.00.15

1Engine speed (non-idle): ±2 percent of point. Engine speed (idle): Within manufacturer's specifications. Idle speed is specified by the manufacturer.

2Torque (non-idle): ±2 percent of engine maximum value. Torque (idle): minimum fueling rate Load less than 5 percent of peak torque.

(d) Auxiliary. For the purpose of determining compliance with the emission standards of §94.8:

(1) Constant speed auxiliary engines shall be tested using the duty cycle described in Table B-4, which follows:

Table B-4—Duty Cycle for Constant-Speed Auxiliary Engines

Mode No.Engine speed1Percent of maximum test torque2Minimum time in mode
(minutes)
Weighting factors
1Maximum Test Speed1005.00.05
2Maximum Test Speed755.00.25
3Maximum Test Speed505.00.30
4Maximum Test Speed255.00.30
5Maximum Test Speed105.00.10

1Engine speed: ±2 percent of point.

2Torque: ±2 percent of engine maximum value.

(2) Variable speed auxiliary engines shall be tested using the duty cycle described in Table B-3 in paragraph (c)(2) of this section.

(e) Recreational. For the purpose of determining compliance with the emission standards of §94.8, recreational engines shall be tested using the duty cycle described in Table B-5, which follows:

Table B-5—Recreational Marine Duty Cycle

Mode No. Engine speed(1) (percent of maximum test speed) Percent of maximum test power(2) Minimum time in mode (minutes) Weighting factors
11001005.00.08
291755.00.13
380505.00.17
463255.00.32
5idle05.00.30

1Engine speed: ±2 percent of point.

2Power: ±2 percent of engine maximum value.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68343, Nov. 8, 2002; 70 FR 40458, July 13, 2005]

§94.106   Supplemental test procedures for Category 1 and Category 2 marine engines.

This section describes the test procedures for supplemental testing conducted to determine compliance with the exhaust emission requirements of §94.8(e)(1). In general, the supplemental test procedures are the same as those otherwise specified by this subpart, except that they cover any speeds, loads, ambient conditions, and operating parameters that may be experienced in use. The test procedures specified by other sections in this subpart also apply to these tests, except as specified in this section.

(a) Notwithstanding other provisions of this subpart, testing conducted to determine compliance with the exhaust emission requirements of §94.8(e) may be conducted:

(1) At any speed and load (or any combination of speeds and loads that is nominally steady-state) within the applicable Not To Exceed Zone specified in paragraph (b) of this section;

(2)(i) Without correction, at any intake air temperature between 13 °C and 35 °C (or between 13 °C and 30 °C for engines not drawing intake air directly from a space that could be heated by the engine);

(ii) Without correction at any ambient water temperature (or equivalent) between 5 °C and 27 °C;

(iii) Without correction at any ambient humidity between 7.1 and 10.7 grams of moisture per kilogram of dry air; and

(3) With a continuous sampling period not less than 30 seconds in duration.

(b) The specified Not to Exceed Zones for marine engines are defined as follows. These Not to Exceed Zones apply, unless a modified zone is established under paragraph (c) of this section.

(1) For commercial Category 1 engines certified using the duty cycle specified in §94.105(b), the Not to Exceed zones are defined as follows:

(i) The Not to Exceed zone is the region between the curves power = 1.15 × SPD2 and power = 0.85 × SPD4, excluding all operation below 25% of maximum power at rated speed and excluding all operation below 63% of maximum test speed.

(ii) This zone is divided into two subzones, one above and one below 45% of maximum power at rated speed.

(iii) SPD in paragraph (b)(1)(i) of this section refers to percent of maximum test speed.

(iv) See Figure B-1 for an illustration of this Not to Exceed zone which follows:

eCFR graphic er29de99.002.gif

View or download PDF

(2) For Category 2 engines certified using the duty cycle specified in §94.105(b), the Not to Exceed zones are defined as follows:

(i) The Not to Exceed zone is the region between the curves power = 1.04 × SPD2 and power = 0.76 × SPD4, excluding all operation below 25% of maximum power at rated speed and excluding all operation below 63% of maximum test speed.

(ii) This zone is divided into two subzones, one above and one below 45% of maximum power at rated speed.

(iii) SPD in paragraph (b)(2)(i) of this section refers to percent of maximum test speed.

(iv) See Figure B-2 in paragraph (b)(3) of this section for an illustration of this Not to Exceed zone.

(3) For engines certified using the duty cycle specified in §94.105(c)(2), the Not to Exceed zones are defined as follows:

eCFR graphic er29de99.003.gif

View or download PDF

(i) The Not to Exceed zone is the region above the curve power = 0.85 SPD4, excluding all operation below 25% of maximum power at rated speed and excluding all operation below 63% of maximum test.

(ii) This zone is divided into two subzones, one above and one below 45% of maximum power at rated speed.

(iii) SPD in paragraph (b)(3)(i) of this section refers to percent of maximum test speed.

(iv) See Figure B-3 for an illustration of this Not to Exceed zone:

eCFR graphic er29de99.004.gif

View or download PDF

(4) For engines certified using the duty cycle specified in §94.105(c)(1), the Not to Exceed zone is defined as any load greater than or equal to 25 percent of maximum power at rated speed, and any speed at which the engine operates in use.

(5) For recreational marine engines certified using the duty cycle specified in §94.105(e), the Not to Exceed zones are defined as follows:

(i) The Not to Exceed zone is the region between the curves power = 1.15 × SPD2 and power = 0.85 × SPD4, excluding all operation below 25% of maximum power at rated speed and excluding all operation below 63% of maximum test speed.

(ii) This zone is divided into three subzones, one below 45% of maximum power at maximum test speed; one above 95% of maximum test speed; and a third area including all of the remaining area of the NTE zone.

(iii) SPD in paragraph (b)(5)(i) of this section refers to percent of maximum test speed.

(iv) See Figure B-4 for an illustration of this Not to Exceed zone as follows:

eCFR graphic er08no02.003.gif

View or download PDF

(c)(1) Upon request by the manufacturer, the Administrator may specify a narrower Not to Exceed Zone for an engine family at the time of certification, provided that the narrower Not to Exceed Zone includes all speeds greater than 63 percent of maximum test speed and loads greater than 25 percent of maximum power at rated speed at which the engines are expected to normally operate in use.

(2) At the time of certification, the Administrator may specify, or require the manufacturer to specify, a broader Not to Exceed Zone for an engine family, provided that the broader Not to Exceed Zone includes only speeds greater than 63 percent of maximum test speed and loads greater than 25 percent of maximum power at rated speed at which the engines are expected to normally operate in use.

(d) Testing conducted to determine compliance with the exhaust emission requirements of §94.8(e) may be conducted at any ambient air temperature or humidity outside the ranges specified in paragraph (a)(2) of this section, provided that emission measurements are corrected to be equivalent to measurements within the ranges specified in paragraph (a)(2) of this section. Correction of emission measurements made in accordance with this paragraph (d) shall be made in accordance with good engineering practice. The measurements shall be corrected to be within the range using the minimum possible correction.

(e) Testing conducted under this section may not include engine starting.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68344, Nov. 8, 2002; 68 FR 9784, Feb. 28, 2003; 70 FR 40458, July 13, 2005]

§94.107   Determination of maximum test speed.

(a) Overview. This section specifies how to determine maximum test speed from a lug curve. This maximum test speed is used in §§94.105, 94.106, and §94.109 (including the tolerances for engine speed specified in §94.105).

(b) Generation of lug curve. Prior to beginning emission testing, generate maximum measured brakepower versus engine speed data points using the applicable method specified in 40 CFR 1065.510. These data points form the lug curve. It is not necessary to generate the entire lug curve. For the portion of the curve where power increases with increasing speed, it is not necessary to generate points with power less than 90 percent of the maximum power value. For the portion of the curve where power decreases with increasing speed, it is not necessary to generate points with power less than 75 percent of the maximum power value.

(c) Normalization of lug curve. (1) Identify the point (power and speed) on the lug curve at which maximum power occurs.

(2) Normalize the power values of the lug curve by dividing them by the maximum power value identified in paragraph (b)(1) of this section, and multiplying the resulting values by 100.

(3) Normalize the engine speed values of the lug curve by dividing them by the speed at which maximum power occurs, which is identified in paragraph (b)(1) of this section, and multiplying the resulting values by 100.

(4) Maximum engine power is located on the normalized lug curve at 100 percent power and 100 percent speed.

(d) Determination of maximum test speed. Calculate the maximum test speed from the speedfactor analysis described in this paragraph (d).

(1) For a given combination of engine power and speed (i.e., a given power/speed point), the speedfactor is the distance to the normalized power/speed point from the zero power, zero speed point. The value of the speedfactor is defined as:

eCFR graphic er29de99.005.gif

View or download PDF

(2) Calculate speedfactors for the power/speed data points on the lug curve, and determine the maximum value.

(3) Maximum test speed is the speed at which the maximum value for the speedfactor occurs.

(e) For constant-speed engines, rated speed is the maximum test speed.

(f) For Category 3 engines, manufacturers may choose to set the maximum test speed at the maximum in-use engine speed instead of the speed specified in §94.107(d).

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9784, Feb. 28, 2003; 70 FR 40458, July 13, 2005]

§94.108   Test fuels.

(a) Distillate diesel test fuel. (1) The diesel fuels for testing Category 1 and Category 2 marine engines designed to operate on distillate diesel fuel shall be clean and bright, with pour and cloud points adequate for operability. The diesel fuel may contain nonmetallic additives as follows: cetane improver, metal deactivator, antioxidant, dehazer, antirust, pour depressant, dye, dispersant, and biocide. The diesel fuel shall also meet the specifications (as determined using methods incorporated by reference at §94.5) in Table B-5 of this section, or substantially equivalent specifications approved by the Administrator, as follows:

Table B-5—Federal Test Fuel Specifications

Item Procedure1 Value
CetaneASTM D 613-0140-48
Distillation Range:
Initial boiling point, °CASTM D 86-01171-204
10% point, °CASTM D 86-01204-238
50% point, °CASTM D 86-01243-282
90% point, °CASTM D 86-01293-332
End point, °CASTM D 86-01321-366
Flash Point, °CASTM D93-0954 minimum.
Gravity, APIASTM D 287-9232-37
Hydrocarbon composition:
Aromatics, volume percentASTM D 1319-02a or D 5186-9910 minimum
Olefins and Saturates (paraffins and napththenes)ASTM D 1319-02aRemainder
Total Sulfur, weight percentASTM D 129-00 or D 2622-980.03-0.80
Viscosity at 38 °C, centistokesASTM D445-092.0-3.2.

1All ASTM standards are incorporated by reference in §94.5.

(2) Other diesel fuels may be used for testing provided:

(i) They are commercially available; and

(ii) Information, acceptable to the Administrator, is provided to show that only the designated fuel would be used in service; and

(iii) Use of a fuel listed under paragraph (a)(1) of this section would have a detrimental effect on emissions or durability; and

(iv) Written approval from the Administrator of the fuel specifications is provided prior to the start of testing.

(3) The specification of the fuel to be used under paragraphs (a)(1), and (a)(2) of this section shall be reported in the application for certification.

(4) Manufacturers may perform testing using the low-sulfur diesel test fuel or the ultra low-sulfur diesel test fuel specified in 40 CFR part 1065.

(b) Other fuel types. For Category 1 and Category 2 engines that are designed to be capable of using a type of fuel (or mixed fuel) instead of or in addition to distillate diesel fuel (e.g., natural gas, methanol, or nondistillate diesel), and that are expected to use that type of fuel (or mixed fuel) in service:

(1) A commercially available fuel of that type shall be used for exhaust emission testing. The manufacturer shall propose for the Administrator's approval a set of test fuel specifications that take into account the engine design and the properties of commercially available fuels. The Administrator may require testing on each fuel if it is designed to operate on more than one fuel. These test fuel specifications shall be reported in the application for certification.

(2) [Reserved]

(c) Service accumulation fuel. Fuel used for service accumulation shall be representative of the typical fuel expected to be used by the engines in service.

(d) Correction for sulfur—(1) High sulfur fuel. (i) Particulate emission measurements from Category 1 or Category 2 engines without exhaust aftertreatment obtained using a diesel fuel containing more than 0.40 weight percent sulfur may be adjusted to a sulfur content of 0.40 weight percent.

(ii) Adjustments to the particulate measurement for using high sulfur fuel shall be made using the following equation:

PMadj=PM−[BSFC × 0.0917 × (FSF-0.0040)]

Where:

PMadj=adjusted measured PM level [g/kW-hr]

PM=measured weighted PM level [g/kW-hr]

BSFC=measured brake specific fuel consumption [g/kW-hr]

FSF=fuel sulfur weight fraction

(2) Low sulfur fuel. (i) Particulate emission measurements from Category 1 or Category 2 engines without exhaust aftertreatment obtained using diesel fuel containing less than 0.03 weight percent sulfur shall be adjusted to a sulfur content of 0.20 weight percent.

(ii) Adjustments to the particulate measurement for using ultra low-sulfur fuel shall be made using the following equation:

PMadj=PM+[BSFC × 0.0917 × (0.0020-FSF)]

Where:

PMadj=adjusted measured PM level [g/kW-hr]

PM=measured weighted PM level [g/kW-hr]

BSFC=measured brake specific fuel consumption [g/kW-hr]

FSF=fuel sulfur weight fraction

(e) Test fuel for Category 3 engines. For testing Tier 1 engines, use test fuels meeting the specifications listed in the Annex VI Technical Code (incorporated by reference in §94.5).

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68345, Nov. 8, 2002; 68 FR 9784, Feb. 28, 2003; 73 FR 37196, June 30, 2008; 77 FR 2463, Jan. 18, 2012]

§94.109   Test procedures for Category 3 marine engines.

(a) Gaseous emissions shall be measured using the test cycles and procedures specified by Section 5 of the Annex VI Technical Code (incorporated by reference in §94.5), except as otherwise specified in this paragraph (a).

(1) The inlet air and exhaust restrictions shall be set at the average in-use levels.

(2) Measurements are valid only for sampling periods in which the temperature of the charge air entering the engine is within 3 °C of the temperature that would occur in-use under ambient conditions (temperature, pressure, and humidity) identical to the test conditions. You may measure emissions within larger discrepancies, but you may not use those measurements to demonstrate compliance.

(3) Engine coolant and engine oil temperatures shall be equivalent to the temperatures that would occur in-use under ambient conditions identical to the test conditions.

(4) Exhaust flow rates shall be calculated using measured fuel flow rates.

(5) Standards used for calibration shall be traceable to NIST standards. (Other national standards may be used if they have been shown to be equivalent to NIST standards.)

(6) Certification tests may be performed at any representative pressure and humidity levels. Certification tests may be performed at any ambient air temperature from 13 °C to 30 °C and any charge air cooling water temperature from 17 °C to 27 °C. These limits apply instead of the limits specified in section 5.2.1 of the Annex VI Technical Code. Correct emissions for test conditions using the corrections specified in section 5.12.3 of the Annex VI Technical Code.

(7) Test cycles shall be denormalized based on the maximum test speed described in §94.107.

(b) Analyzers meeting the specifications of either 40 CFR part 1065, subpart C, or ISO 8178-1 (incorporated by reference in §94.5) shall be used to measure THC and CO.

(c) The Administrator may specify changes to the provisions of paragraph (a) of this section that are necessary to comply with the general provisions of §94.102.

[68 FR 9785, Feb. 28, 2003, as amended at 70 FR 40458, July 13, 2005]

Subpart C—Certification Provisions

§94.201   Applicability.

(a) The requirements of this subpart are applicable to manufacturers of engines subject to the standards of subpart A of this part.

(b) In a given model year, you may ask us to approve the use of procedures for certification, labeling, reporting and recordkeeping, or other administrative requirements specified in 40 CFR part 1042 or 1068 instead of the comparable procedures specified in this part 94. We may approve the request as long as it does not prevent us from ensuring that you fully comply with the intent of this part.

[73 FR 59184, Oct. 8, 2008]

§94.202   Definitions.

The definitions of subpart A of this part apply to this subpart.

§94.203   Application for certification.

(a) For each engine family that complies with all applicable standards and requirements, the manufacturer shall submit to the Administrator a completed application for a certificate of conformity.

(b) The application shall be approved and signed by the authorized representative of the manufacturer.

(c) The application shall be updated and corrected by amendment, where necessary, as provided for in §94.210 to accurately reflect the manufacturer's production.

(d) Each application shall include all the following information:

(1)(i) A description of the basic engine design, including but not limited to, the engine family specifications, the provisions of which are contained in §94.204.

(ii) A list of distinguishable configurations to be included in the engine family.

(2) An explanation of how the emission control system operates, including detailed descriptions of:

(i) All emission control system components;

(ii) The injection timing map or maps (i.e., degrees before or after top-dead-center), and any functional dependence of such timing on other operational parameters (e.g., engine coolant temperature or engine speed);

(iii) Each auxiliary emission control device (AECD); and

(iv) All fuel system components to be installed on any production or test engine(s).

(3) A description of the test engine.

(4) Special or alternate test procedures, if applicable.

(5) A description of the operating cycle and the period of operation necessary to accumulate service hours on the test engine and stabilize emission levels.

(6) A description of all adjustable operating parameters (e.g., injection timing and fuel rate), including all the following:

(i) The nominal or recommended setting and the associated production tolerances.

(ii) The physically adjustable range (Note: if this is different than the intended adjustable range, describe why these are different).

(iii) The limits or stops used to limit adjustable ranges.

(iv) Production tolerances of the limits or stops used to establish each physically adjustable range.

(v) Information relating to the reason that the physical limits or stops used to establish the physically adjustable range of each parameter, or any other means used to inhibit adjustment, are the most effective means possible of preventing adjustment of parameters to settings outside the manufacturer's specified adjustable ranges on in-use engines.

(7) For families participating in the averaging, banking, and trading program, the information specified in subpart D of this part.

(8) Projected U.S.-directed production volume information for each configuration.

(9) A description of the test equipment and fuel used.

(10) All test data obtained by the manufacturer on each test engine, including CO2 and CH4 as specified in 40 CFR 89.407(d)(1) and §94.103(c) for Category 1 engines, §94.104(e) for Category 2 engines, and §94.109(d) for Category 3 engines. Small-volume manufacturers may omit measurement and reporting of CH4.

(11) The intended useful life period for the engine family, in accordance with §94.9(a).

(12) The intended deterioration factors for the engine family, in accordance with §94.218.

(13) All information required for EPA to interpret all messages and parameters broadcast on an engine's controller area network, including but not limited to message or parameter identification, scaling, limit, offset, and transfer function. (The manufacturer may reference publicly released controller area network standards where applicable. The format of this information shall be provided in a format similar to publicly released documents pertaining to controller area network standards.)

(14) (i) For Category 1 and Category 2 engines, a statement that the all the engines included in the engine family comply with the Not To Exceed standards specified in §94.8(e) when operated under all conditions which may reasonably be expected to be encountered in normal operation and use; the manufacturer also must provide a detailed description of all testing, engineering analyses, and other information which provides the basis for this statement.

(ii) [Reserved]

(15) An unconditional statement certifying that all engines included in the engine family comply with all requirements of this part and the Clean Air Act.

(16) A statement indicating duty-cycle and application of the engine (e.g., used to propel planing vessels, use to propel vessels with variable-pitch propellers, constant-speed auxiliary, recreational, etc.).

(e) At the Administrator's request, the manufacturer shall supply such additional information as may be required to evaluate the application.

(f)(1) If the manufacturer submits some or all of the information specified in paragraph (d) of this section in advance of its full application for certification, the Administrator shall review the information and make the determinations required in §94.208 (d) within 90 days of the manufacturer's submittal.

(2) The 90-day decision period is exclusive of any elapsed time during which EPA is waiting for additional information requested from a manufacturer regarding an adjustable parameter (the 90-day period resumes upon receipt of the manufacturer's response). For example, if EPA requests additional information 30 days after the manufacturer submits information under paragraph (f)(1) of this section, then the Administrator would make a determination within 60 days of the receipt of the requested information from the manufacturer.

(g)(1) The Administrator may modify the information submission requirements of paragraph (d) of this section, provided that all of the information specified therein is maintained by the manufacturer as required by §94.215, and amended, updated, or corrected as necessary.

(2) For the purposes of this paragraph (g), §94.215 includes all information specified in paragraph (d) of this section, whether or not such information is actually submitted to the Administrator for any particular model year.

(3) The Administrator may review a manufacturer's records at any time. At the Administrator's discretion, this review may take place either at the manufacturer's facility or at another facility designated by the Administrator.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68346, Nov. 8, 2002; 68 FR 9785, Feb. 28, 2003; 74 FR 56374, Oct. 30, 2009]

§94.204   Designation of engine families.

This section specifies the procedure and requirements for grouping of engines into engine families.

(a) Manufacturers shall divide their engines into groupings of engines which are expected to have similar emission characteristics throughout their useful life. Each group shall be defined as a separate engine family.

(b) For Category 1 marine engines, the following characteristics distinguish engine families:

(1) Fuel;

(2) Cooling method (including cooling medium);

(3) Method of air aspiration;

(4) Method of exhaust aftertreatment (for example, catalytic converter or particulate trap);

(5) Combustion chamber design;

(6) Bore;

(7) Stroke;

(8) Number of cylinders, (engines with aftertreatment devices only);

(9) Cylinder arrangement (engines with aftertreatment devices only);

(10) Fuel system configuration; and

(11) Class (commercial or recreational).

(c) For Category 2 marine engines, the following characteristics distinguish engine families:

(1) The combustion cycle (e.g., diesel cycle);

(2) The type of engine cooling employed (air-cooled or water-cooled), and procedure(s) employed to maintain engine temperature within desired limits (thermostat, on-off radiator fan(s), radiator shutters, etc.);

(3) The bore and stroke dimensions;

(4) The approximate intake and exhaust event timing and duration (valve or port);

(5) The location of the intake and exhaust valves (or ports);

(6) The size of the intake and exhaust valves (or ports);

(7) The overall injection, or as appropriate ignition, timing characteristics (i.e., the deviation of the timing curves from the optimal fuel economy timing curve must be similar in degree);

(8) The combustion chamber configuration and the surface-to-volume ratio of the combustion chamber when the piston is at top dead center position, using nominal combustion chamber dimensions;

(9) The location of the piston rings on the piston;

(10) The method of air aspiration (turbocharged, supercharged, naturally aspirated, Roots blown);

(11) The turbocharger or supercharger general performance characteristics (e.g., approximate boost pressure, approximate response time, approximate size relative to engine displacement);

(12) The type of air inlet cooler (air-to-air, air-to-liquid, approximate degree to which inlet air is cooled);

(13) The intake manifold induction port size and configuration;

(14) The type of fuel and fuel system configuration;

(15) The configuration of the fuel injectors and approximate injection pressure;

(16) The type of fuel injection system controls (i.e., mechanical or electronic);

(17) The type of smoke control system;

(18) The exhaust manifold port size and configuration; and

(19) The type of exhaust aftertreatment system (oxidation catalyst, particulate trap), and characteristics of the aftertreatment system (catalyst loading, converter size vs engine size).

(d) Upon request by the manufacturer, engines that are eligible to be included in the same engine family based on the criteria in paragraph (b) or (c) of this section may be divided into different engine families. This request must be accompanied by information the manufacturer believes supports the use of these different engine families.

(e) Upon request by the manufacturer, the Administrator may allow engines that would be required to be grouped into separate engine families based on the criteria in paragraph (b) or (c) of this section to be grouped into a single engine family if the manufacturer demonstrates that the engines will have similar emission characteristics; however, recreational and commercial engines may not be grouped in the same engine family. This request must be accompanied by emission information supporting the appropriateness of such combined engine families.

(f) Category 3 engines shall be grouped into engine families based on the criteria specified in Section 4.3 of the Annex VI Technical Code (incorporated by reference in §94.5), except as allowed in paragraphs (d) and (e) of this section.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68346, Nov. 8, 2002; 68 FR 9785, Feb. 28, 2003]

§94.205   Prohibited controls, adjustable parameters.

(a) Any system installed on, or incorporated in, a new engine to enable the engine to conform to the standards contained in this part:

(1) Shall not cause a violation of the general standards of §94.7.

(2) Shall function during all in-use operation, except as otherwise allowed by this part.

(b)(1) Category 1 marine engines equipped with adjustable parameters must comply with all requirements of this subpart for any adjustment in the physically adjustable range.

(2) Category 2 and Category 3 marine engines equipped with adjustable parameters must comply with all requirements of this subpart for any adjustment in the approved adjustable range.

(c) The Administrator may require that adjustable parameters be set to any specification within its adjustable range for certification, selective enforcement audit, or in-use testing to determine compliance with the requirements of this subpart.

(d) In specifying the adjustable range of each adjustable parameter on a new engine, the manufacturer, shall:

(1) Ensure that safe engine operating characteristics are available within that range, as required by section 202(a)(4) of the Clean Air Act, taking into consideration the production tolerances; and

(2) To the maximum extent practicable, limit the physical range of adjustability to that which is necessary for proper operation of the engine.

(e) Tier 1 Category 3 marine engines shall be adjusted according to the manufacturer's specifications for testing.

(f) For Category 3 marine engines, manufacturers must specify in the maintenance instructions how to adjust the engines to achieve emission performance equivalent to the performance demonstrated under the certification test conditions. This must address all necessary adjustments, including those required to address differences in fuel quality or ambient temperatures. For example, equivalent emissions performance can be measured relative to optimal engine performance that could be achieved in the absence of emission standards (i.e., the calibration that result in the lowest fuel consumption and/or maximum firing pressure). In this example, adjustments that achieved the same percent reduction in NOX emissions from the optimal calibration would be considered to be equivalent. Alternatively, if the engine uses injection timing retard and EGR to reduce emissions, then retarding timing the same number of degrees (relative to optimal engine performance) and using the same rate of EGR at the different conditions would be considered to be equivalent.

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9785, Feb. 28, 2003]

§94.206   Required information.

(a) The manufacturer shall perform the tests required by the applicable test procedures, and submit to the Administrator the information required by this section: Provided, that if requested by the manufacturer, the Administrator may waive any requirement of this section for testing of engines for which the required emission data are otherwise available.

(b) The manufacturer shall submit exhaust emission deterioration factors, with supporting data. The determination of the deterioration factors shall be conducted in accordance with §94.218 to ensure that the engines covered by a certificate issued under §94.208 will meet all of the emission standards in §94.8 in use for the useful life of the engine.

(c) The manufacturer shall submit emission data on such engines tested in accordance with the applicable test procedures of Subpart B of this part. These data shall include zero hour data, if generated. In lieu of providing the emission data required by paragraph (a) of this section, the Administrator may, upon request by the manufacturer, allow the manufacturer to demonstrate (on the basis of previous emission tests, development tests, or other testing information) that the engine will conform with the applicable emission standards of §94.8.

(d) The manufacturer shall submit a statement that the engines for which certification is requested conform to the requirements in §94.7 and that the descriptions of tests performed to ascertain compliance with the general standards in §94.7, and the data derived from such tests, are available to the Administrator upon request.

(e) The manufacturer shall submit a statement that the emission data engine used to demonstrate compliance with the applicable standards of this part is in all material respects as described in the manufacturer's application for certification; that it has been tested in accordance with the applicable test procedures utilizing the fuels and equipment described in the application for certification; and that on the basis of such tests, the engine family conforms to the requirements of this part. If, on the basis of the data supplied and any additional data as required by the Administrator, the Administrator determines that the test engine was not as described in the application for certification or was not tested in accordance with the applicable test procedures utilizing the fuels and equipment as described in the application for certification, the Administrator may make the determination that the engine does not meet the applicable standards. If the Administrator makes such a determination, he/she may withhold, suspend, or revoke the certificate of conformity under §94.208 (c)(3)(i).

§94.207   Special test procedures.

(a) Establishment of special test procedures by EPA. The Administrator may, on the basis of written application by a manufacturer, establish special test procedures other than those set forth in this part, for any engine that the Administrator determines is not susceptible to satisfactory testing under the specified test procedures set forth in Subpart B of this part.

(b) Use of alternate test procedures by a manufacturer. (1) A manufacturer may elect to use an alternate test procedure, provided that it is equivalent to the specified procedures with respect to the demonstration of compliance, its use is approved in advance by the Administrator, and the basis for the equivalence with the specified test procedures is fully described in the manufacturer's application.

(2) The Administrator may reject data generated under alternate test procedures if the data do not correlate with data generated under the specified procedures.

§94.208   Certification.

(a) If, after a review of the application for certification, test reports and data acquired from an engine or from a development data engine, and any other information required or obtained by EPA, the Administrator determines that the application is complete and that the engine family meets the requirements of the Act and this part, he/she will issue a certificate of conformity with respect to such engine family, except as provided by paragraph (c)(3) of this section. The certificate of conformity is valid for each engine family starting with the indicated effective date, but it is not valid for any production after December 31 of the model year for which it is issued. The certificate of conformity is valid upon such terms and conditions as the Administrator deems necessary or appropriate to ensure that the production engines covered by the certificate will meet the requirements of the Act and of this part.

(b) [Reserved]

(c)(1) The manufacturer shall bear the burden of establishing to the satisfaction of the Administrator that the conditions upon which the certificates were issued were satisfied or excused.

(2) The Administrator will determine whether the test data included in the application represents all engines of the engine family.

(3) Notwithstanding the fact that any engine(s) may comply with other provisions of this subpart, the Administrator may withhold or deny the issuance of any certificate of conformity, or suspend or revoke any such certificate(s) which has (have) been issued with respect to any such engine(s) if:

(i) The manufacturer submits false or incomplete information in its application for certification thereof;

(ii) The manufacturer renders inaccurate any test data which it submits pertaining thereto or otherwise circumvents the intent of the Act, or of this part with respect to such engine;

(iii) Any EPA Enforcement Officer is denied access on the terms specified in §94.215 to any facility or portion thereof which contains any of the following:

(A) An engine which is scheduled to undergo emissions testing, or which is undergoing emissions testing, or which has undergone emissions testing; or

(B) Any components used or considered for use in the construction, modification or buildup of any engine which is scheduled to undergo emissions testing, or which is undergoing emissions testing, or which has undergone emissions testing for purposes of emissions certification; or

(C) Any production engine which is or will be claimed by the manufacturer to be covered by the certificate; or

(D) Any step in the construction of the engine; or

(E) Any records, documents, reports or histories required by this part to be kept concerning any of the items listed in paragraphs (c)(3)(iii)(A) through (D) of this section; or

(iv) Any EPA Enforcement Officer is denied “reasonable assistance” (as defined in §94.215).

(4) In any case in which a manufacturer knowingly submits false or inaccurate information or knowingly renders inaccurate or invalid any test data or commits any other fraudulent acts and such acts contribute substantially to the Administrator's decision to issue a certificate of conformity, the Administrator may deem such certificate void ab initio.

(5) In any case in which certification of an engine is to be withheld, denied, revoked or suspended under paragraph (c)(3) of this section, and in which the Administrator has presented to the manufacturer involved reasonable evidence that a violation of §94.215 in fact occurred, the manufacturer, if it wishes to contend that, even though the violation occurred, the engine in question was not involved in the violation to a degree that would warrant withholding, denial, revocation or suspension of certification under paragraph (c)(3) of this section, shall have the burden of establishing that contention to the satisfaction of the Administrator.

(6) Any revocation, suspension, or voiding of certification under paragraph (c)(3) of this section shall:

(i) Be made only after the manufacturer concerned has been offered an opportunity for a hearing conducted in accordance with §94.216; and

(ii) Extend no further than to forbid the introduction into commerce of engines previously covered by the certification which are still in the hands of the manufacturer, except in cases of such fraud or other misconduct that makes the certification invalid ab initio.

(7) The manufacturer may request, within 30 days of receiving notification, that any determination made by the Administrator under paragraph (c)(3) of this section to withhold or deny certification be reviewed in a hearing conducted in accordance with §94.216. The request shall be in writing, signed by an authorized representative of the manufacturer and shall include a statement specifying the manufacturer's objections to the Administrator's determinations, and data in support of such objections. If the Administrator finds, after a review of the request and supporting data, that the request raises a substantial factual issue, he/she will grant the request with respect to such issue.

(d) In approving an application for certification, the Administrator may specify or require the manufacturer to specify:

(1) A broader range of adjustability than recommended by the manufacturer for those engine parameters which are subject to adjustment, if the Administrator determines that it is not reasonable to expect the parameter to be kept adjusted within the recommended range in use;

(2) A longer useful life period, if the Administrator determines that the useful life of the engines in the engine family, as defined in §94.2, is longer than the period specified by the manufacturer;

(3) Larger deterioration factors, if the Administrator determines that the deterioration factors specified by the manufacturer do not meet the requirements of §94.218; and/or

(4) A broader Not to Exceed Zone subject to the provisions of §94.106(b).

(e) Within 30 days following receipt of notification of the Administrator's determinations made under paragraph (d) of this section, the manufacturer may request a hearing on the Administrator's determinations. The request shall be in writing, signed by an authorized representative of the manufacturer and shall include a statement specifying the manufacturer's objections to the Administrator's determinations and data in support of such objections. If, after review of the request and supporting data, the Administrator finds that the request raises a substantial factual issue, the manufacturer shall be provided with a hearing in accordance with §94.216 with respect to such issue.

[64 FR 73331, Dec. 29, 1999, as amended at 73 FR 37196, June 30, 2008]

§94.209   Special provisions for post-manufacture marinizers and small-volume manufacturers.

The provisions of this section apply for Category 1 and Category 2 engines, but not for Category 3 engines.

(a) Broader engine families. Instead of the requirements of §94.204, an engine family may consist of any or all of a manufacturer's engines within a given category. This does not change any of the requirements of this part for showing that an engine family meets emission standards. To be eligible to use the provisions of this paragraph (a), the manufacturer must demonstrate one of the following:

(1) It is a post-manufacture marinizer and that the base engines used for modification have a valid certificate of conformity issued under 40 CFR part 89 or 40 CFR part 92 or the heavy-duty engine provisions of 40 CFR part 86.

(2) It is a small-volume manufacturer.

(b) Hardship relief. Post-manufacture marinizers, small-volume manufacturers, and small-volume boat builders may take any of the otherwise prohibited actions identified in §94.1103(a)(1) if approved in advance by the Administrator, subject to the following requirements:

(1) Application for relief must be submitted to the Designated Officer in writing prior to the earliest date in which the applying manufacturer would be in violation of §94.1103. The manufacturer must submit evidence showing that the requirements for approval have been met.

(2) The conditions causing the impending violation must not be substantially the fault of the applying manufacturer.

(3) The conditions causing the impending violation must jeopardize the solvency of the applying manufacturer if relief is not granted.

(4) The applying manufacturer must demonstrate that no other allowances under this part will be available to avoid the impending violation.

(5) Any relief may not exceed one year beyond the date relief is granted.

(6) The Administrator may impose other conditions on the granting of relief including provisions to recover the lost environmental benefit.

(7) The manufacturer must add a permanent, legible label, written in block letters in English, to a readily visible part of each engine exempted under this paragraph (b).

This label must include at least the following items:

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

(ii) Your corporate name and trademark.

(iii) Engine displacement (in liters), rated power, and model year of the engine or whom to contact for further information.

(iv) The statement “THIS ENGINE IS EXEMPT UNDER 40 CFR 94.209(b) FROM EMISSION STANDARDS AND RELATED REQUIREMENTS.”.

(c) Extension of deadlines. Small-volume manufacturers may use the provisions of 40 CFR 1068.250 to ask for an extension of a deadline to meet emission standards. We may require that you use available base engines that have been certified to emission standards for land-based engines until you are able to produce engines certified to the requirements of this part.

[67 FR 68346, Nov. 8, 2002, as amended at 68 FR 9786, Feb. 28, 2003; 73 FR 37196, June 30, 2008]

§94.210   Amending the application and certificate of conformity.

(a) The manufacturer shall notify the Administrator when changes to information required to be described in the application for certification are to be made to a product line covered by a certificate of conformity. This notification shall include a request to amend the application or the existing certificate of conformity. Except as provided in paragraph (e) of this section, no manufacturer shall make said changes or produce said engines prior to receiving approval from the Administrator.

(b) A manufacturer's request to amend the application or the existing certificate of conformity shall include the following information:

(1) A full description of the change to be made in production, or of the engines to be added;

(2) Engineering evaluations or data showing that the engines as modified or added will comply with all applicable emission standards; and

(3) A determination whether the manufacturer's original test fleet selection is still appropriate, and if the original test fleet selection is determined not to be appropriate, test fleet selection(s) representing the engines changed or added which would have been required if the engines had been included in the original application for certification.

(c) The Administrator may require the manufacturer to perform tests on the engine representing the engine to be added or changed.

(d)(1) Based on the description of the amendment and data derived from such testing as the Administrator may require or conduct, the Administrator will determine whether the change or addition would still be covered by the certificate of conformity then in effect.

(2) If the Administrator determines that the change or new engine(s) meets the requirements of this part and the Act, the appropriate certificate of conformity shall be amended.

(3) If the Administrator determines that the changed engine(s) does not meet the requirements of this part and the Act, the certificate of conformity will not be amended. The Administrator shall provide a written explanation to the manufacturer of the decision not to amend the certificate. The manufacturer may request a hearing on a denial.

(e) A manufacturer may make changes in or additions to production engines concurrently with the notification to the Administrator, as required by paragraph (a) of this section, if the manufacturer complies with the following requirements:

(1) In addition to the information required in paragraph (b) of this section, the manufacturer shall supply supporting documentation, test data, and engineering evaluations as appropriate to demonstrate that all affected engines will still meet applicable emission standards.

(2) If, after a review, the Administrator determines additional testing is required, the manufacturer shall provide the required test data within 30 days or cease production of the affected engines.

(3) If the Administrator determines that the affected engines do not meet applicable requirements, the Administrator will notify the manufacturer to cease production of the affected engines and to recall and correct at no expense to the owner all affected engines previously produced.

(4) Election to produce engines under this paragraph (e) will be deemed to be a consent to recall all engines that the Administrator determines do not meet applicable standards and to cause such nonconformity to be remedied at no expense to the owner.

§94.211   Emission-related maintenance instructions for purchasers.

(a) The manufacturer shall furnish or cause to be furnished to the ultimate purchaser of each new engine, subject to the standards prescribed in §94.8, written instructions for the proper maintenance and use of the engine as are reasonable and necessary to assure the proper functioning of the emissions control system, consistent with the applicable provisions of paragraph (b) of this section.

(1) The maintenance and use instructions required by this section shall be clear and easily understandable.

(2) The maintenance instructions required by this section shall contain a general description of the documentation that would demonstrate for warranty purposes that the ultimate purchaser or any subsequent owner had complied with the instructions.

(3) For Category 3 engines, the manufacturer must provide in boldface type on the first page of the written maintenance instructions notice that §94.1004 requires that the emissions-related maintenance be performed as specified in the instructions (or equivalent).

(b)(1) The manufacturer must provide in boldface type on the first page of the written maintenance instructions notice that maintenance, replacement, or repair of the emission control devices and systems may be performed by any engine repair establishment or individual.

(2) The instructions under paragraph (b)(1) of this section will not include any condition on the ultimate purchaser's or owner's using, in connection with such engine, any component or service (other than a component or service provided without charge under the terms of the purchase agreement) which is identified by brand, trade, or corporate name. Such instructions also will not directly or indirectly distinguish between service performed by any other service establishments with which such manufacturer has a commercial relationship and service performed by independent vessel or engine repair facilities with which such manufacturer has no commercial relationship.

(3) The prohibition of paragraph (b)(2) of this section may be waived by the Administrator if:

(i) The manufacturer demonstrates to the Administrator's satisfaction that the engine will function properly only if the component or service so identified is used in connection with such engine; and

(ii) The Administrator finds that such a waiver is in the public interest.

(c) The manufacturer shall provide to the Administrator, no later than the time of the submission required by §94.203, a copy of the emission-related maintenance instructions that the manufacturer proposes to supply to the ultimate purchaser or owner in accordance with this section. The Administrator will review such instructions to determine whether they are reasonable and necessary to ensure the proper functioning of the engine's emission control systems. If the Administrator determines that such instructions are not reasonable and necessary to ensure the proper functioning of the emission control systems, he/she may disapprove the application for certification or may require that the manufacturer modify the instructions.

(d) Any revision to the maintenance instructions which will affect emissions shall be supplied to the Administrator at least 30 days before being supplied to the ultimate purchaser or owner unless the Administrator consents to a lesser period of time, and is subject to the provisions of §94.210.

(e) This paragraph (e) specifies emission-related scheduled maintenance for purposes of obtaining durability data for marine engines. The maintenance intervals specified in this paragraph are minimum intervals.

(1) All emission-related scheduled maintenance for purposes of obtaining durability data must occur at the same or longer hours of use intervals as those specified in the manufacturer's maintenance instructions furnished to the ultimate purchaser of the engine under paragraph (a) of this section. This maintenance schedule may be updated as necessary throughout the testing of the engine, provided that no maintenance operation is deleted from the maintenance schedule after the operation has been performed on the test equipment or engine.

(2) Any emission-related maintenance which is performed on equipment, engines, subsystems, or components must be technologically necessary to ensure in-use compliance with the emission standards. The manufacturer must submit data which demonstrate to the Administrator that all of the emission-related scheduled maintenance which is to be performed is technologically necessary. Scheduled maintenance must be approved by the Administrator prior to being performed or being included in the emission-related maintenance instructions provided to the purchasers under paragraph (a) of this section.

(i) The Administrator may require longer maintenance intervals than those listed in paragraphs (e)(3) and (e)(4) of this section where the listed intervals are not technologically necessary.

(ii) The Administrator may allow manufacturers to specify shorter maintenance intervals than those listed in paragraphs (e)(3) and (e)(4) of this section where technologically necessary for Category 2 engines.

(iii) The maintenance intervals listed in paragraphs (e)(3) and (e)(4) of this section do not apply for Category 3.

(3) The adjustment, cleaning, repair, or replacement of items listed in paragraphs (e)(3)(i) through (e)(3)(iii) of this section shall occur at 1,500 hours of use and at 1,500-hour intervals thereafter.

(i) Exhaust gas recirculation system-related filters and coolers.

(ii) Positive crankcase ventilation valve.

(iii) Fuel injector tips (cleaning only).

(4) The adjustment, cleaning and repair of items in paragraphs (e)(4)(i) through (e)(4)(vii) of this section shall occur at 3,000 hours of use and at 3,000-hour intervals thereafter for engines with per-cylinder displacement less than 1.2 liters, or at 4,500-hour intervals thereafter for engines with per-cylinder displacement greater than or equal to 1.2 liters.

(i) Fuel injectors.

(ii) Turbocharger.

(iii) Electronic engine control unit and its associated sensors and actuators.

(iv) Particulate trap or trap-oxidizer system (including related components).

(v) Exhaust gas recirculation system (including all related control valves and tubing), except as otherwise provided in paragraph (e)(3)(i) of this section.

(vi) Catalytic convertor.

(vii) Any other add-on emission-related component (i.e., a component whose sole or primary purpose is to reduce emissions or whose failure will significantly degrade emission control and whose function is not integral to the design and performance of the engine).

(f) Scheduled maintenance not related to emissions which is reasonable and technologically necessary (e.g., oil change, oil filter change, fuel filter change, air filter change, cooling system maintenance, adjustment of idle speed, governor, engine bolt torque, valve lash, injector lash, timing, lubrication of the exhaust manifold heat control valve, etc.) may be performed on durability engines at the least frequent intervals recommended by the manufacturer to the ultimate purchaser, (e.g., not the intervals recommended for severe service).

(g) Adjustment of engine idle speed on emission data engines may be performed once before the low-hour emission test point. Any other engine, emission control system, or fuel system adjustment, repair, removal, disassembly, cleaning, or replacement on emission data vehicles shall be performed only with advance approval of the Administrator.

(h) For Category 1 and Category 2 engines, equipment, instruments, or tools may not be used to identify malfunctioning, maladjusted, or defective engine components unless the same or equivalent equipment, instruments, or tools will be available to dealerships and other service outlets and are:

(1) Used in conjunction with scheduled maintenance on such components; or

(2) Used subsequent to the identification of an engine malfunction, as provided in paragraph (e) of this section for emission data engines; or

(3) Specifically authorized by the Administrator.

(i) All test data, maintenance reports, and required engineering reports shall be compiled and provided to the Administrator in accordance with §94.215.

(j)(1) The components listed in paragraphs (j)(1)(i) through (j)(1)(vi) of this section are defined as critical emission-related components.

(i) Catalytic convertor.

(ii) Electronic engine control unit and its associated sensors and actuators.

(iii) Exhaust gas recirculation system (including all related filters, coolers, control valves, and tubing).

(iv) Positive crankcase ventilation valve.

(v) Particulate trap or trap-oxidizer system.

(vi) Any other add-on emission-related component (i.e., a component whose sole or primary purpose is to reduce emissions or whose failure will significantly degrade emission control and whose function is not integral to the design and performance of the engine).

(2) All critical emission-related scheduled maintenance must have a reasonable likelihood of being performed in use. For Category 1 and Category 2 engines, the manufacturer must show the reasonable likelihood of such maintenance being performed in-use. Critical emission-related scheduled maintenance items which satisfy one of the conditions defined in paragraphs (j)(2)(i) through (j)(2)(vi) of this section will be accepted as having a reasonable likelihood of being performed in use.

(i) Data are presented which establish for the Administrator a connection between emissions and engine performance such that as emissions increase due to lack of maintenance, vehicle performance will simultaneously deteriorate to a point unacceptable for typical operation.

(ii) Survey data are submitted which adequately demonstrate to the Administrator with an 80 percent confidence level that 80 percent of such engines already have this critical maintenance item performed in-use at the recommended interval(s).

(iii) A clearly displayed visible signal system approved by the Administrator is installed to alert the equipment operator that maintenance is due. A signal bearing the message “maintenance needed” or “check engine,” or a similar message approved by the Administrator, shall be actuated at the appropriate usage point or by component failure. This signal must be continuous while the engine is in operation and not be easily eliminated without performance of the required maintenance. Resetting the signal shall be a required step in the maintenance operation. The method for resetting the signal system shall be approved by the Administrator. The system must not be designed to deactivate upon the end of the useful life of the engine or thereafter.

(iv) A manufacturer may desire to demonstrate through a survey that a critical maintenance item is likely to be performed without a visible signal on a maintenance item for which there is no prior in-use experience without the signal. To that end, the manufacturer may in a given model year market up to 200 randomly selected engines per critical emission-related maintenance item without such visible signals, and monitor the performance of the critical maintenance item by the owners to show compliance with paragraph (j)(2)(ii) of this section. This option is restricted to two consecutive model years and may not be repeated until any previous survey has been completed. If the critical maintenance involves more than one engine family, the sample will be sales weighted to ensure that it is representative of all the families in question.

(v) The manufacturer provides the maintenance free of charge, and clearly informs the customer that the maintenance is free in the instructions provided under paragraph (a) of this section.

(vi) The manufacturer uses any other method which the Administrator approves as establishing a reasonable likelihood that the critical maintenance will be performed in-use.

(3) Visible signal systems used under paragraph (j)(2)(iii) of this section are considered an element of design of the emission control system. Therefore, disabling, resetting, or otherwise rendering such signals inoperative without also performing the indicated maintenance procedure is a prohibited act.

(k) For Category 3 engines, the manufacturer must provide the ultimate purchaser with a Technical File meeting the specifications of section 2.4 of the Annex VI Technical Code (incorporated by reference in §94.5). The maintenance instructions required by this part to be provided by manufacturer may be included in this Technical File. The manufacturer must provide a copy of this Technical File to EPA upon request.

(l) Owners and operators of Category 3 engines shall transfer the maintenance instructions to subsequent owners and operators of the engine upon sale or transfer of the engine or vessel.

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9786, Feb. 28, 2003; 70 FR 40458, July 13, 2005]

§94.212   Labeling.

(a) General requirements. (1) Each new engine covered by a certificate of conformity under §94.208 shall be labeled by the manufacturer in the manner described in this paragraph (b) of this section at the time of manufacture.

(2) Each new marine engine modified from a base engine by post-manufacture marinizers in accordance with the provisions of §94.209 (b) and covered by a certificate of conformity under §94.208 shall be labeled by the PMM in the manner described in paragraph (b) of this section.

(b) Engine labels. Engine labels meeting the specifications of this section shall be applied to every engine by the manufacturer at the point of original manufacture. Engine labels shall be permanent and legible and shall be affixed to the engine in a position in which it will be readily visible after installation of the engine in the vessel. The label shall be attached to an engine part necessary for normal operation and not normally requiring replacement during the useful life of the engine. The label shall be affixed by the manufacturer in such manner that it cannot be removed without destroying or defacing the label. The label shall not be affixed to any equipment which is easily detached from such engine. The label may be not be made up of more than one piece without the advance approval of the Administrator. The label shall contain the following information lettered in the English language in block letters and numerals, which shall be of a color that contrasts with the background of the label:

(1) The label heading: Marine Engine Emission Control Information.

(2) Full corporate name and trademark of the manufacturer.

(3) The model year.

(4) The per-cylinder displacement of the engine.

(5) Engine family and configuration identification.

(6) A prominent unconditional statement of compliance with U.S. Environmental Protection Agency regulations that apply to marine compression-ignition engines.

(7) The useful life of the engine, unless the applicable useful life is based on the provisions of §94.9(a)(1).

(8) The standards and/or FELs to which the engine was certified.

(9) Engine tune-up specifications and adjustments, as recommended by the manufacturer in accordance with the applicable emission standards, including but not limited to idle speeds(s), injection timing, valve lash (as applicable), as well as other parameters deemed necessary by the manufacturer.

(10) The application for which the engine family is certified. (For example: constant-speed auxiliary, variable-speed propulsion engines used with fixed-pitch propellers, recreational, etc.)

(c) The provisions of this section shall not prevent a manufacturer from also providing on the label any other information that such manufacturer deems necessary for, or useful to, the proper operation and satisfactory maintenance of the vessel or engine.

(d) Engines certified under the voluntary standards described in §94.8(f) to be designated as Blue Sky Series engines must contain the statement on the label: “Blue Sky Series”.

(e) If an engine can be modified to operate on residual fuel, but has not been certified to meet the standards on such a fuel, it must contain the statement on the label: “THIS ENGINE IS CERTIFIED FOR OPERATION ONLY WITH DISTILLATE DIESEL FUEL. MODIFYING THE ENGINE TO OPERATE ON RESIDUAL FUEL MAY BE A VIOLATION OF FEDERAL LAW SUBJECT TO CIVIL PENALTIES.” The Administrator may approve alternate language.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68346, Nov. 8, 2002; 70 FR 40459, July 13, 2005]

§94.213   Submission of engine identification numbers.

(a) Upon request of the Administrator, the manufacturer of any engine covered by a certificate of conformity shall, within 30 days of receipt of such request, identify by engine identification number, the engines covered by the certificate of conformity.

(b) The manufacturer of any engines covered by a certificate of conformity shall provide to the Administrator, within 60 days of the issuance of a certificate of conformity, an explanation of the elements in any engine identification coding system in sufficient detail to enable the Administrator to identify those engines which are covered by a certificate of conformity.

§94.214   Production engines.

Any manufacturer obtaining certification under this part shall supply to the Administrator, upon his/her request, a reasonable number of production engines, as specified by the Administrator. The engines shall be representative of the engines, emission control systems, and fuel systems offered and typical of production engines available for sale or use under the certificate. These engines shall be supplied for testing at such time and place and for such reasonable periods as the Administrator may require. This requirement does not apply for Category 3 engines. Manufacturers of Category 3 engines, however, must allow EPA access to test engines and development engines to the extent necessary to determine that the engine family is in full compliance with the applicable requirements of this part.

[68 FR 9786, Feb. 28, 2003]

§94.215   Maintenance of records; submittal of information; right of entry.

(a) Any manufacturer subject to any of the standards or procedures prescribed in this subpart shall establish, maintain and retain the following adequately organized and indexed records:

(1) General records. The records required to be maintained by this paragraph (a) shall consist of:

(i) Identification and description of all certification engines for which testing is required under this subpart.

(ii) A description of all emission control systems which are installed on or incorporated in each certification engine.

(iii) A description of all procedures used to test each such certification engine.

(iv) A copy of all applications for certification, filed with the Administrator.

(2) Individual records. (i) A brief history of each engine used for certification under this subpart including:

(A) In the case where a current production engine is modified for use as a certification engine, a description of the process by which the engine was selected and of the modifications made. In the case where the certification engine is not derived from a current production engine, a general description of the buildup of the engine (e.g., whether experimental heads were cast and machined according to supplied drawings). In the cases in the previous two sentences, a description of the origin and selection process for fuel system components, ignition system components (as applicable), intake air pressurization and cooling system components, cylinders, pistons and piston rings, exhaust smoke control system components, and exhaust aftertreatment devices as applicable, shall be included. The required descriptions shall specify the steps taken to assure that the certification engine, with respect to its engine, drivetrain, fuel system, emission control system components, exhaust aftertreatment devices, or any other devices or components as applicable, that can reasonably be expected to influence exhaust emissions will be representative of production engines and that either: all components and/or engine, construction processes, component inspection and selection techniques, and assembly techniques employed in constructing such engines are reasonably likely to be implemented for production engines; or that they are as close as practicable to planned construction and assembly process.

(B) A complete record of all emission tests performed (except tests performed by EPA directly), including test results, the date and purpose of each test, and the number of hours accumulated on the engine.

(C) A record and description of all maintenance and other servicing performed, giving the date of the maintenance or service and the reason for it.

(D) A record and description of each test performed to diagnose engine or emission control system performance, giving the date and time of the test and the reason for it.

(E) A brief description of any significant events affecting the engine during the period covered by the history and not described by an entry under one of the previous headings, including such extraordinary events as accidents involving the engine or dynamometer runaway.

(ii) Each such history shall be started on the date that the first of any of the selection or buildup activities in paragraph (a)(2)(i)(A) of this section occurred with respect to the certification engine and shall be kept in a designated location.

(3) All records, other than routine emission test records, required to be maintained under this subpart shall be retained by the manufacturer for a period of 8 years after issuance of all certificates of conformity to which they relate. Routine emission test records shall be retained by the manufacturer for a period of one (1) year after issuance of all certificates of conformity to which they relate. Records may be retained as hard copy or reduced to computer disks, etc., depending on the record retention procedures of the manufacturer: Provided, that in every case all the information contained in the hard copy shall be retained.

(4) Nothing in this section limits the Administrator's discretion in requiring the manufacturer to retain additional records or submit information not specifically required by this section.

(5) Pursuant to a request made by the Administrator, the manufacturer shall submit to him/her the information that is required to be retained.

(6) EPA may void a certificate of conformity ab initio for an engine family for which the manufacturer fails to retain the records required in this section or to provide such information to the Administrator upon request.

(b) The manufacturer of engines subject to any of the standards prescribed in this part shall submit to the Administrator, at the time of issuance by the manufacturer, copies of all instructions or explanations regarding the use, repair, adjustment, maintenance, or testing of such engine, relevant to the control of crankcase, or exhaust emissions issued by the manufacturer, for use by other manufacturers, assembly plants, distributors, dealers, owners and operators. Any material not translated into the English language need not be submitted unless specifically requested by the Administrator.

(c) Any manufacturer participating in averaging, banking and trading program of subpart D of this part must comply with the maintenance of records requirements of §94.308.

(d)(1) Any manufacturer who has applied for certification of a new engine subject to certification testing under this subpart shall admit or cause to be admitted any EPA Enforcement Officer during operating hours on presentation of credentials to any of the following:

(i) Any facility where any such tests or any procedures or activities connected with such test are or were performed;

(ii) Any facility where any engine which is being tested (or was tested, or is to be tested) is present;

(iii) Any facility where any construction process or assembly process used in the modification or buildup of such an engine into a certification engine is taking place or has taken place; or

(iv) Any facility where any record or other document relating to any of the activities listed in this paragraph (d)(1).

(2) Upon admission to any facility referred to in paragraph (d)(1) of this section, any EPA Enforcement Officer shall be allowed:

(i) To inspect and monitor any part or aspect of such procedures, activities and testing facilities including, but not limited to, monitoring engine preconditioning, emissions tests, service accumulation, maintenance, and engine storage procedures, and to verify correlation or calibration of test equipment;

(ii) To inspect and make copies of any such records, designs, or other documents, including those records specified in Subpart D of this part; and

(iii) To inspect and/or photograph any part or aspect of any such certification engine and any components to be used in the construction thereof.

(3) In order to allow the Administrator to determine whether or not production engines, conform to the conditions upon which a certificate of conformity has been issued, or conform in all material respects to the design specifications applicable to those engines, as described in the application for certification for which a certificate of conformity has been issued, any manufacturer shall admit any EPA Enforcement Officer on presentation of credentials to:

(i) Any facility where any document, design or procedure relating to the translation of the design and construction of engines and emission related components described in the application for certification or used for certification testing into production engines is located or carried on;

(ii) Any facility where any engines to be introduced into commerce are manufactured; and

(iii) Any facility where records specified this section are located.

(4) On admission to any such facility referred to in paragraph (d)(3) of this section, any EPA Enforcement Officer shall be allowed:

(i) To inspect and monitor any aspects of such manufacture and other procedures;

(ii) To inspect and make copies of any such records, documents or designs;

(iii) To inspect and photograph any part or aspect of any such engine(s) and any component used in the assembly thereof that are reasonably related to the purpose of his/her entry; and

(iv) To inspect and make copies of any records and documents specified in this section.

(5) Any EPA Enforcement Officer shall be furnished by those in charge of a facility being inspected with such reasonable assistance as he/she may request to help him/her discharge any function listed in this part. Each applicant for or recipient of certification is required to cause those in charge of a facility operated for its benefit to furnish such reasonable assistance without charge to EPA whether or not the applicant controls the facility.

(6) The duty to admit or cause to be admitted any EPA Enforcement Officer applies to any facility involved in the manufacturing or assembling of engines, whether or not the manufacturer owns or controls the facility in question and applies both to domestic and to foreign manufacturers and facilities. EPA will not attempt to make any inspections which it has been informed that local law forbids. However, if local law makes it impossible to do what is necessary to insure the accuracy of data generated at a facility, no informed judgment that an engine is certifiable or is covered by a certificate can properly be based on those data. It is the responsibility of the manufacturer to locate its testing and manufacturing facilities in jurisdictions where this situation will not arise.

(7) For purposes of this section:

(i) “Presentation of credentials” shall mean display of the document designating a person as an EPA Enforcement Officer.

(ii) Where component or engine storage areas or facilities are concerned, “operating hours” shall mean all times during which personnel other than custodial personnel are at work in the vicinity of the area or facility and have access to it.

(iii) Where facilities or areas other than those covered by paragraph (d)(7)(ii) of this section are concerned, “operating hours” shall mean all times during which an assembly line is in operation or all times during which testing, maintenance, service accumulation, production or compilation of records, or any other procedure or activity related to certification testing, to translation of designs from the test stage to the production stage, or to engine manufacture, or assembly is being carried out in a facility.

(iv) “Reasonable assistance” includes, but is not limited to, clerical, copying, interpretation and translation services, the making available on request of personnel of the facility being inspected during their working hours to inform the EPA Enforcement Officer of how the facility operates and to answer his questions, and the performance on request of emissions tests on any engine which is being, has been, or will be used for certification testing. Such tests shall be nondestructive, but may require appropriate service accumulation. A manufacturer may be compelled to cause the personal appearance of any employee at such a facility before an EPA Enforcement Officer by written request for his appearance, signed by the Assistant Administrator for Air and Radiation or the Assistant Administrator for Enforcement and Compliance Assurance, served on the manufacturer. Any such employee who has been instructed by the manufacturer to appear will be entitled to be accompanied, represented and advised by counsel.

(v) Any entry without 24 hour prior written or oral notification to the affected manufacturer shall be authorized in writing by the Assistant Administrator for Air and Radiation or the Assistant Administrator for Enforcement and Compliance Assurance.

(8) EPA may void a certificate of conformity ab initio for engines introduced into commerce if the manufacturer (or contractor for the manufacturer, if applicable) fails to comply with any provision of this section.

§94.216   Hearing procedures.

(a)(1) After granting a request for a hearing under §94.210 or §94.208, the Administrator shall designate a Presiding Officer for the hearing.

(2) The hearing shall be held as soon as practicable at a time and place fixed by the Administrator or by the Presiding Officer.

(3) In the case of any hearing requested pursuant to §94.208, the Administrator may in his/her discretion direct that all argument and presentation of evidence be concluded within such fixed period not less than 30 days as he/she may establish from the date that the first written offer of a hearing is made to the manufacturer. To expedite proceedings, the Administrator may direct that the decision of the Presiding Officer (who may, but need not be the Administrator) shall be the final EPA decision.

(b)(1) Upon his/her appointment pursuant to paragraph (a) of this section, the Presiding Officer will establish a hearing file. The file shall consist of the notice issued by the Administrator under §94.210 or §94.208 together with any accompanying material, the request for a hearing and the supporting data submitted therewith, and all documents relating to the request for certification and all documents submitted therewith, and correspondence and other data material to the hearing.

(2) The hearing file will be available for inspection by the applicant at the office of the Presiding Officer.

(c) An applicant may appear in person, or may be represented by counsel or by any other duly authorized representative.

(d)(1) The Presiding Officer, upon the request of any party, or in his/her discretion, may arrange for a prehearing conference at a time and place specified by him/her to consider the following:

(i) Simplification of the issues;

(ii) Stipulations, admissions of fact, and the introduction of documents;

(iii) Limitation of the number of expert witnesses;

(iv) Possibility of agreement disposing of all or any of the issues in dispute;

(v) Such other matters as may aid in the disposition of the hearing, including such additional tests as may be agreed upon by the parties.

(2) The results of the conference shall be reduced to writing by the Presiding Officer and made part of the record.

(e)(1) Hearings shall be conducted by the Presiding Officer in an informal but orderly and expeditious manner. The parties may offer oral or written evidence, subject to the exclusion by the Presiding Officer of irrelevant, immaterial and repetitious evidence.

(2) Witnesses will not be required to testify under oath. However, the Presiding Officer shall call to the attention of witnesses that their statements may be subject to the provisions of 18 U.S.C. 1001 which imposes penalties for knowingly making false statements or representations, or using false documents in any matter within the jurisdiction of any department or agency of the United States.

(3) Any witness may be examined or cross-examined by the Presiding Officer, the parties, or their representatives.

(4) Hearings shall be reported verbatim. Copies of transcripts of proceedings may be purchased by the applicant from the reporter.

(5) All written statements, charts, tabulations, and similar data offered in evidence at the hearings shall, upon a showing satisfactory to the Presiding Officer of their authenticity, relevancy, and materiality, be received in evidence and shall constitute a part of the record.

(6) Oral argument may be permitted in the discretion of the Presiding Officer and shall be reported as part of the record unless otherwise ordered by him/her.

(f)(1) The Presiding Officer shall make an initial decision which shall include written findings and conclusions and the reasons or basis therefor on all the material issues of fact, law, or discretion presented on the record. The findings, conclusions, and written decision shall be provided to the parties and made a part of the record. The initial decision shall become the decision of the Administrator without further proceedings unless there is an appeal to the Administrator or motion for review by the Administrator within 30 days of the date the initial decision was filed.

(2) On appeal from or review of the initial decision, the Administrator shall have all the powers which he/she would have in making the initial decision including the discretion to require or allow briefs, oral argument, the taking of additional evidence or the remanding to the Presiding Officer for additional proceedings. The decision by the Administrator shall include written findings and conclusions and the reasons or basis therefor on all the material issues of fact, law, or discretion presented on the appeal or considered in the review.

§94.217   Emission data engine selection.

(a) The manufacturer must select for testing, from each engine family, the engine configuration which is expected to be worst-case for exhaust emission compliance on in-use engines, considering all exhaust emission constituents and the range of installation options available to vessel builders. The engines selected for testing are collectively described as the test fleet.

(b) Each engine in the test fleet must be constructed to be representative of production engines.

(c) After review of the manufacturer's test fleet, the Administrator may select from the available fleet one additional test engine from each engine family.

(d) Each engine selected shall be tested according to the provisions of Subpart B of this part.

(e) In lieu of testing an emission data engine selected under paragraph (a) of this section and submitting the resulting data, a manufacturer may, with Administrator approval, use emission data on a similar engine for which certification has previously been obtained or for which all applicable data required under this subpart have previously been submitted. These data must be submitted in the application for certification.

(f) A single cylinder test engine may be used for certification of Tier 1 Category 3 engine families. If you use test data from a single cylinder test engine for certification, explain in your application how you have determined that such data show that the multiple cylinder production engines will comply with the applicable emission standards.

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9786, Feb. 28, 2003]

§94.218   Deterioration factor determination.

Manufacturers shall determine exhaust emission deterioration factors using good engineering judgement according to the provisions of this section. Every deterioration factor must be, in the Administrator's judgment, consistent with emissions increases observed in-use based on emission testing of similar engines. Deterioration factors that predict emission increases over the useful life of an engine that are significantly less than the emission increases over the useful life observed from in-use testing of similar engines shall not be used.

(a) A separate exhaust emission deterioration factor shall be established for each engine family and for each emission constituent applicable to that family.

(b) Calculation procedures—(1) For engines not utilizing aftertreatment technology (e.g., catalyst). For each applicable emission constituent, an additive deterioration factor shall be used; that is, a deterioration factor that when added to the low mileage emission rate equals the emission rate at the end of useful life. However, if the deterioration factor supplied by the manufacturer is less than zero, it shall be zero for the purposes of this section.

(2) For engines utilizing aftertreatment technology (e.g., catalyst). For each applicable emission constituent, a multiplicative deterioration factor shall be used; that is deterioration factors that when multiplied by the low mileage emission rate equal the emission rate at the end of useful life. However, if the deterioration factor supplied by the manufacturer is less than one, it shall be one for the purposes of this section.

(c) Rounding. (1) In the case of a multiplicative exhaust emission deterioration factor, round the factor to three places to the right of the decimal point.

(2) In the case of an additive exhaust emission deterioration factor, round the factor shall to at least two places to the right of the decimal point.

(d)(1) Except as allowed by paragraph (d)(2) of this section, the manufacturer shall determine the deterioration factors for Category 1 and Category 2 engines based on service accumulation and related testing, according to the manufacturer's procedures, and the provisions of §§94.219 and 94.220. The manufacturer shall determine the form and extent of this service accumulation, consistent with good engineering practice, and shall describe this process in the application for certification.

(2) Alternatives to service accumulation and testing for the determination of a deterioration factor. A written explanation of the appropriateness of using an alternative must be included in the application for certification.

(i) Carryover and carryacross of durability emission data. In lieu of testing an emission data or durability data engine selected under §94.217 or §94.219, and submitting the resulting data, a manufacturer may, with Administrator approval, use exhaust emission deterioration data on a similar engine for which certification to the same standard has previously been obtained or for which all applicable data required under this subpart have previously been submitted. These data must be submitted in the application for certification.

(ii) Use of non-marine deterioration data. In the case where a manufacturer produces a certified motor vehicle engine, locomotive engine, or other nonroad engine that is similar to the marine engine to be certified, deterioration data from the non-marine engine may be applied to the marine engine. This application of deterioration data from such an engine to a marine engine is subject to Administrator approval, and the determination of whether the engines are similar shall be based on good engineering judgment.

(iii) Engineering analysis for established technologies. In the case where an engine family uses technology which is well established, an analysis based on good engineering practices may be used in lieu of testing to determine a deterioration factor for that engine family. Engines using exhaust gas recirculation or aftertreatment are excluded from this provision. The manufacturer shall provide a written statement to the Administrator that all data, analyses, test procedures, evaluations, and other documents, on which the deterioration factor is based, are available to the Administrator upon request.

(iv) Assigned deterioration factors. Small-volume manufacturers may use deterioration factors established by EPA.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68346, Nov. 8, 2002; 68 FR 9786, Feb. 28, 2003]

§94.219   Durability data engine selection.

(a) For Category 1 and Category 2 engines, the manufacturer shall select for durability testing, from each engine family, the engine configuration which is expected to generate the highest level of exhaust emission deterioration on engines in use, considering all exhaust emission constituents and the range of installation options available to vessel builders. The manufacturer shall use good engineering judgment in making this selection.

(b) Carryover data satisfying the provisions of §94.220 may also be used in lieu of testing the configuration selected in paragraph (a) of this section.

(c) Durability data engines shall be built from subsystems and components that are representative of actual production engines.

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9786, Feb. 28, 2003]

§94.220   Service accumulation.

(a) Each test emission data engine in the test fleet may be operated with all emission control systems operating properly for a period, up to 125 hours of operation, that is sufficient to stabilize emissions.

(b) Durability data engines shall accumulate service in a manner which will represent the emission levels from in-use engines over their full useful life, consistent with good engineering judgement.

(1) Components may be removed from the engine and aged separately.

(2) End of useful life emission levels and deterioration factors may be projected from durability data engines which have completed less than full useful life service accumulation, provided that the amount of service accumulation completed and projection procedures are determined using good engineering judgement.

(c) No maintenance, other than recommended lubrication and filter changes or maintenance otherwise allowed by this part, may be performed during service accumulation without the Administrator's approval.

(d) The manufacturer must maintain, and provide to the Administrator if requested, records stating the rationale for selecting the service accumulation period and records describing the method used to accumulate service hours on the test engine(s).

§94.221   Application of good engineering judgment.

(a) The manufacturer shall exercise good engineering judgment in making all decisions called for under this part, including but not limited to selections, categorizations, determinations, and applications of the requirements of the part.

(b) Upon written request by the Administrator, the manufacturer shall provide within 15 working days (or such longer period as may be allowed by the Administrator) a written description of the engineering judgment in question.

(c) The Administrator may reject any such decision by a manufacturer if it is not based on good engineering judgment or is otherwise inconsistent with the requirements of this part.

(d) If the Administrator rejects a decision by a manufacturer with respect to the exercise of good engineering judgment, the following provisions shall apply:

(1) If the Administrator determines that incorrect information was deliberately used in the decision process, that important information was deliberately overlooked, that the decision was not made in good faith, or that the decision was not made with a rational basis, the Administrator may suspend or void ab initio a certificate of conformity.

(2) If the Administrator determines that the manufacturer's decision is not covered by the provisions of paragraph (d) (1) of this section, but that a different decision would reflect a better exercise of good engineering judgment, then the Administrator will notify the manufacturer of this concern and the basis of the concern.

(i) The manufacturer shall have at least 30 days to respond to this notice. The Administrator may extend this response period upon request from the manufacturer if it is necessary to generate additional data for the manufacturer's response.

(ii) The Administrator shall make the final ruling after considering the information provided by the manufacturer during the response period. If the Administrator determines that the manufacturer's decision was not made using good engineering judgment, he/she may reject that decision and apply the new ruling to future corresponding decisions as soon as practicable.

(e) The Administrator shall notify the manufacturer in writing regarding any decision reached under paragraph (d)(1) or (2) of this section. The Administrator shall include in this notification the basis for reaching the determination.

(f) Within 30 working days following receipt of notification of the Administrator's determinations made under paragraph (d) of this section, the manufacturer may request a hearing on those determinations. The request shall be in writing, signed by an authorized representative of the manufacturer, and shall include a statement specifying the manufacturer's objections to the Administrator's determinations, and data or other analysis in support of such objections. If, after review of the request and supporting data or analysis, the Administrator finds that the request raises a substantial factual issue, he/she shall provide the manufacturer a hearing in accordance with §94.216 with respect to such issue.

§94.222   Certification of engines on imported vessels.

For marine engines subject to the requirements of this part that are installed on imported vessels, the Administrator may specify alternate certification provisions as necessary.

Subpart D—Certification Averaging, Banking, and Trading Provisions

§94.301   Applicability.

Marine engine families subject to the standards of subpart A of this part are eligible to participate in the certification averaging, banking, and trading program described in this subpart. The provisions of this subpart apply to manufacturers of new engines that are subject to the emission standards of §94.8. To the extent specified in 40 CFR part 60, subpart IIII, stationary engines certified under this part and subject to the standards of 40 CFR part 60, subpart IIII, may participate in the averaging, banking, and trading program described in this subpart.

[71 FR 39184, July 11, 2006]

§94.302   Definitions.

The definitions of Subpart A of this part apply to this subpart. The following definitions also apply:

Applicable standard means a standard that would have otherwise been applicable had the engine not been certified under this subpart to an FEL different than that standard.

Broker means any entity that facilitates a trade between a buyer and seller.

Buyer means the entity that receives credits as a result of trade.

Reserved credits means credits that have been generated but have not yet been reviewed by EPA or used to demonstrate compliance under the averaging provisions of this subpart.

Seller means the entity that provides credits during a trade.

§94.303   General provisions.

(a) Participation in the averaging, banking, and trading program is voluntary. A manufacturer may choose to involve some or all of its engine families in any or all aspects of the program.

(b) An engine family is eligible to participate in the certification averaging, banking, and trading program for THC+NOX and PM emissions only if it is subject to regulation under this part with certain exceptions specified in paragraph (c) of this section. No averaging, banking, and trading program is available for meeting the CO standards of this part.

(c) Engines may not participate in the certification averaging, banking, and trading program if they are exported. Only engines certified under this part are eligible for generation or use of credits in this certification averaging, banking, and trading program. Engines certified to the Blue Sky provisions of §94.8(f) are not eligible for inclusion in this certification averaging, banking, and trading program.

(d) Averaging involves the generation of credits by a manufacturer for use by that same manufacturer in the same calendar year. A manufacturer may use averaging during certification to offset an emission exceedance of an engine family caused by an FEL above the applicable emission standard, subject to the provisions of this subpart.

(e) Banking involves the generation of credits by a manufacturer in a given calendar year for use in a subsequent model year. A manufacturer may bank actual credits only after the end of the calendar year and after EPA has reviewed the manufacturer's end-of-year reports. During the calendar year and before submittal of the end-of-year report, credits originally designated in the certification process for banking will be considered reserved and may be redesignated for trading or averaging in the end-of-year report. Credits declared for banking from the previous calendar year that have not been reviewed by EPA may be used in averaging or trading transactions. However, such credits may be revoked at a later time following EPA review of the end-of-year report or any subsequent audit actions.

(f) Trading involves the sale of banked credits for use in certification of new engines under this part. Only banked credits may be traded; reserved credits may not be traded.

§94.304   Compliance requirements.

(a) Manufacturers wishing to participate in certification averaging, banking and trading programs shall select a FEL for each engine family they wish to include. The level of the FEL shall be selected by the manufacturer, subject to the upper limits described in paragraph (m) of this section. An engine family certified to an FEL is subject to all provisions specified in this part, except that the applicable FEL replaces the applicable THC+NOX and PM emission standard for the family participating in the averaging, banking, and trading program.

(b) A manufacturer may certify one or more engine families at FELs above or below the applicable emission standard, provided the summation of the manufacturer's projected balance of all credit transactions in a given calendar year is greater than or equal to zero, as calculated for each family under §94.305 and reported under §94.309.

(c) Manufacturers certifying engine families with FELs exceeding the applicable emission standard shall obtain emission credits in amounts sufficient to address the shortfall. Credits may be obtained from averaging, banking, or trading, subject to the restrictions described in this subpart.

(d) Manufacturers certifying engine families with FELs below the applicable emission standard may generate emission credits to average, bank, or trade, or a combination thereof.

(e) An engine family may not generate credits for one pollutant while also using credits for another pollutant in the same model year.

(f) Credits may only be used for certification; they may not be used to remedy a violation of the FEL determined by production line or in-use testing. Credits may be used to allow subsequent production of engines for an engine family failing production line testing if the manufacturer elects to recertify to a higher FEL.

(g) [Reserved].

(h) If an FEL is changed after initial certification in any given model year, the manufacturer must conduct production line testing to verify that the emission levels are achieved, with one exception: when an FEL is changed immediately after (and because of) a production line testing failure, additional verification testing is not required.

(i) Manufacturers participating in the averaging, banking and trading program must demonstrate compliance with the applicable emission standards at the end of the model year. Manufacturers that have certified engine families to FELs above the applicable emission standards and do not have sufficient emission credits to offset the difference between the emission standard and the FEL for such engine families will be in violation of the conditions of the certificate of conformity for such engine families. The certificates of conformity may be voided ab initio for those engine families.

(j) In the event of a negative credit balance resulting from a credit trade, both the buyer(s) and the seller(s) are liable, except in cases involving fraud. Certificates of all engine families participating in a negative trade may be voided ab initio.

(1) Where a buyer of credits is not responsible for causing the negative credit balance, the buyer is only liable to supply additional credits equivalent to any amount of invalid credits that the buyer used for its engine family(ies).

(2) Credit holders responsible for the credit shortfall may be subject to the requirements of §94.309(g)(3).

(k) The following provisions limit credit exchanges between different types of engines:

(1) Credits generated by Category 1 engine families may be used for compliance by Category 1 or Category 2 engine families. Credits generated from Category 1 engine families for use by Category 2 engine families must be discounted by 25 percent.

(2) Credits generated by Category 2 engine families may be used for compliance only by Category 2 engine families.

(3) Credits may not be exchanged between recreational and commercial engines.

(l) Credit life shall be unlimited.

(m) Upper limits. The FELs for THC+NOX and PM for new engines certified for participation in this averaging, banking and trading program may not exceed the following values:

(1) For Category 1 engines, the FEL may not exceed the levels contained in Table D-1, which follows:

Table D-1—Category 1 Upper Limits for Tier 2 Family Emission Limits

Subcategory liters/cylinderModel year1THC+NOX FEL g/kW-hrPM FEL
g/kW-hr
Power ≥37 kW disp. <0.9200511.51.2
0.9 ≤disp. <1.2200411.51.2
1.2 ≤disp. <2.5200410.50.54
2.5 ≤disp. <5.0200710.50.54

1The model years listed indicate the model years for which the specified standards start.

(2) For Category 2 engines, the FEL may not exceed the applicable standard by more than 25 percent.

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

§94.305   Credit generation and use calculation.

(a) For each participating engine family, calculate THC+NOX and PM emission credits (positive or negative) according to the equation in paragraph (b) of this section and round emissions to the nearest one-hundredth of a megagram (Mg). Use consistent units throughout the calculation.

(b) Credits (Mg) for each engine family are calculated as: Emission credits = (Std—FEL)×(UL)×(Production)×(AvgPR)×(LF)×(10−6)

Where:

(i) Std = the applicable cycle-weighted marine engine THC+NOX or PM emission standard in grams per kilowatt-hour.

(ii) FEL = the family emission limit for the engine family in grams per kilowatt-hour. (The FEL may not exceed the limit established in §94.304(m) for each pollutant.)

(iii) UL = the useful life in hours of operation.

(iv) Production = the number of engines participating in the averaging, banking, and trading program within the given engine family during the calendar year (or the number of engines in the subset of the engine family for which credits are being calculated). Quarterly production projections are used for initial certification. Actual applicable production/sales volumes are used for end-of-year compliance determination.

(v) AvgPR = average power rating of all of the configurations within an engine family, calculated on a sales-weighted basis, in kilowatts.

(vi) LF = the load factor, dependent on whether the engine is intended for propulsion or auxiliary applications, as follows:

(A) 0.69 for propulsion engines,

(B) 0.51 for auxiliary engines.

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9786, Feb. 28, 2003]

§94.306   Certification.

(a) In the application for certification a manufacturer must:

(1) Declare its intent to include specific engine families in the averaging, banking, and/or trading programs. Separate declarations are required for each pollutant (THC+NOX and PM).

(2) Declare FELs for each engine family participating in certification averaging, banking, and/or trading.

(i) The FELs must be to the same number of significant digits as the emission standard.

(ii) In no case may the FEL exceed the upper limit prescribed in §94.304(m).

(3) Conduct and submit detailed calculations of projected emission credits (positive or negative) based on quarterly production projections for each participating family and for each pollutant, using the applicable equation in §94.305 and the applicable values of the terms in the equation for the specific family.

(i) If the engine family is projected to have negative emission credits, state specifically the source (manufacturer/engine family) of the credits necessary to offset the credit deficit according to quarterly projected production.

(ii) If the engine family is projected to generate credits, state specifically where the quarterly projected credits will be applied (manufacturer/engine family or reserved).

(4) Submit a statement that the engines for which certification is requested will not, to the best of the manufacturer's belief, cause the manufacturer to have a negative credit balance when all credits are calculated for all the manufacturer's engine families participating in the averaging, banking, and trading program.

(b) Based on this information, each manufacturer's certification application must demonstrate:

(1) That at the end of model year production, each engine family has a net emissions credit balance equal to or greater than zero for any pollutant and program for which participation in certification under averaging, banking, and/or trading is being sought. The equation in section §94.305 shall be used in this calculation for each engine family.

(2) That the manufacturer will obtain sufficient credits to be used to comply with the emission standard for any engine family with an FEL that exceeds the applicable emission standard, or where credits will be applied if the FEL is less than the emission standard. In cases where credits are being obtained, for each engine family involved the manufacturer must identify specifically the source of the credits being used (manufacturer/engine family). All such reports shall include all credits involved in certification averaging, banking, or trading.

(3) That in cases where credits are being generated/supplied, the use of such credits is specifically designated (manufacturer/engine family or reserved). All such reports shall include all credits involved in certification averaging, banking, or trading.

(c) Manufacturers must monitor projected versus actual production throughout the model year to ensure that compliance with emission standards is achieved at the end of the model year.

(d) At the end of the model year, the manufacturer must provide the end-of-year reports required under §94.309.

(1) Projected credits based on the information supplied in the certification application may be used to obtain a certificate of conformity. However, any such projected credits must be validated based on review of the end of model year reports and may be revoked at a later time based on follow-up audits or any other verification measure deemed appropriate by the Administrator.

(2) Compliance for engine families using averaging, banking, or trading will be determined at the end of the model year. Manufacturers that have certified engine families with credit balances for THC+NOX and/or PM that do not equal or exceed zero shall be in violation of the conditions of the certificate of conformity for such engine families. The certificate of conformity may be voided ab initio for those engine families.

(e) Other conditions of certification.

(1) All certificates issued are conditional upon compliance by the manufacturer with the provisions of this subpart both during and after the calendar year of production.

(2) Failure to comply with all provisions of this subpart will be considered to be a failure to satisfy the conditions upon which the certificate was issued, and the certificate may be deemed void ab initio.

(3) The manufacturer bears the burden of establishing to the satisfaction of the Administrator that the conditions upon which the certificate was issued were satisfied or waived.

§94.307   Labeling.

For all engines included in the certification averaging, banking, and trading program, the FEL to which the engine is certified must be included on the label required in §94.212.

§94.308   Maintenance of records.

(a) The manufacturer of any engine that is certified under the averaging, banking, and trading program must establish, maintain, and retain the following adequately organized and indexed records for each such engine produced:

(1) EPA engine family and configuration;

(2) Engine identification number;

(3) Engine calendar year and build date;

(4) Rated power;

(5) Purchaser and destination; and

(6) Assembly plant.

(b) The manufacturer of any engine family that is certified under the averaging, banking, and trading program must establish, maintain, and retain the following adequately organized and indexed records for each such family:

(1) Model year and EPA engine family;

(2) Family Emission Limit(s) (FEL);

(3) Rated power for each configuration;

(4) Projected applicable production/sales volume for the calendar year;

(5) Actual applicable production/sales volume for the calendar year; and

(6) Useful life.

(c) Any manufacturer producing an engine family participating in trading of credits must maintain the following records on a quarterly basis for each engine family in the trading program:

(1) The model year and engine family;

(2) The actual quarterly and cumulative applicable production/sales volume;

(3) The values required to calculate credits as given in §94.305;

(4) The resulting type and number of credits generated/required;

(5) How and where credit surpluses are dispersed; and

(6) How and through what means credit deficits are met.

(d) The manufacturer must retain all records required to be maintained under this section for a period of 8 years from the due date for the end-of-calendar year report. Records may be retained as hard copy or reduced to microfilm, ADP diskettes, and so forth, depending on the manufacturer's record retention procedure; provided, that in every case all information contained in the hard copy is retained.

(e) Nothing in this section limits the Administrator's discretion in requiring the manufacturer to retain additional records or submit information not specifically required by this section.

(f) Pursuant to a request made by the Administrator, the manufacturer must submit to the Administrator the information that the manufacturer is required to retain.

(g) EPA may void ab initio a certificate of conformity for an engine family for which the manufacturer fails to retain the records required in this section or to provide such information to the Administrator upon request.

§94.309   Reports.

(a) Manufacturers must submit the certification information as required under §94.306, and end-of-year reports each year as part of their participation in certification averaging, banking, and trading programs.

(b) Quarterly reports. All entities involved in credit trades must submit quarterly reports. The reports shall include the source or recipient of the credits, the amount of credits involved plus remaining balances, details regarding the pollutant, and model year as well as the information prescribed in §94.308(c). Copies of contracts related to credit trading must be included or supplied by the buyer, seller, and broker, as applicable.

(c) End-of-year reports must include the information prescribed in §94.308(b). The report shall include a calculation of credit balances for each family to show that the summation of the manufacturer's use of credits results in a credit balance equal to or greater than zero. The report shall be consistent in detail with the information submitted under §94.306 and show how credit surpluses were dispersed and how credit shortfalls were met on a family specific basis. The end-of-year report shall incorporate any information reflected in previous quarterly reports.

(d) The applicable production/sales volume for quarterly and end-of-year reports must be based on the location of either the point of first retail sale by the manufacturer or the point at which the engine is placed into service, whichever occurs first. This is called the final product purchase location.

(e) Each quarterly and end-of-year report submitted shall include a statement certifying to the accuracy and authenticity of the material reported therein.

(f) Requirements for submission. (1) Quarterly reports must be submitted within 90 days of the end of the calendar quarter to the Designated Officer.

(2) End-of-year reports must be submitted within 120 days of the end of the calendar year to the Designated Officer.

(3) Failure by a manufacturer participating in the averaging, banking, or trading program to submit any quarterly or end-of-year reports in the specified time for all engines is a violation of sections 203(a)(1) and 213 of the Clean Air Act for each engine.

(4) A manufacturer generating credits for banking only who fails to submit end-of-year reports in the applicable specified time period (120 days after the end of the calendar year) may not use or trade the credits until such reports are received and reviewed by EPA. Use of projected credits pending EPA review is not permitted in these circumstances.

(g) Reporting errors. (1) Errors discovered by EPA or the manufacturer in the end-of-year report, including errors in credit calculation, may be corrected 180-days subsequent to submission of the end-of-year report. Errors discovered by EPA after 180-days shall be correctable if, as a result of the correction, the manufacturer's credits are reduced. Errors in the manufacturer's favor are not corrected if discovered after the 180-day correction period allowed.

(2) If EPA or the manufacturer determines that a reporting error occurred on an end-of-year report previously submitted to EPA under this section, the manufacturer's credits and credit calculations will be recalculated. Erroneous positive credits will be void. Erroneous negative credit balances may be corrected by EPA.

(3) If EPA review of a manufacturer's end-of-year report indicates a credit shortfall, the manufacturer will be permitted to purchase the necessary credits to bring the credit balance to zero. These credits must be supplied at the ratio of 1.1 credits for each 1.0 credit needed. If sufficient credits are not available to bring the credit balance to zero for the family(ies) involved, EPA may void the certificate(s) for that family(ies) ab initio. In addition, all engines within an engine family for which there are insufficient credits will be considered to have violated the conditions of the certificate of conformity and therefore are not covered by that certificate.

(4) If within 180 days of receipt of the manufacturer's end-of-year report, EPA review determines a reporting error in the manufacturer's favor (that is, resulting in an increased credit balance) or if the manufacturer discovers such an error within 180 days of EPA receipt of the end-of-year report, the credits are restored for use by the manufacturer.

§94.310   Notice of opportunity for hearing.

Any voiding of the certificate under this subpart will be made only after the manufacturer concerned has been offered an opportunity for a hearing conducted in accordance with §94.216 and, if a manufacturer requests such a hearing, will be made only after an initial decision by the Presiding Officer.

Subpart E—Emission-related Defect Reporting Requirements, Voluntary Emission Recall Program

§94.401   Applicability.

The requirements of this subpart are applicable to manufacturers of engines subject to the provisions of Subpart A of this part. The requirement to report emission-related defects affecting a given class or category of engines applies for eight years from the end of the year in which such engines were manufactured.

§94.402   Definitions.

The definitions of Subpart A of this part apply to this subpart.

§94.403   Emission defect information report.

(a) A manufacturer must file a defect information report whenever it determines, in accordance with procedures it established to identify either safety-related or performance defects (or based on other information), that a specific emission-related defect exists in 25 or more Category 1 marine engines, or 10 or more Category 2 marine engines, or 2 or more Category 3 engines or cylinders. No report must be filed under this paragraph for any emission-related defect corrected prior to the sale of the affected engines to an ultimate purchaser. (Note: These limits apply to the occurrence of the same defect, and are not constrained by engine family or model year.)

(b) Defect information reports required under paragraph (a) of this section must be submitted not more than 15 working days after the same emission-related defect is found to effect 25 or more Category 1 marine engines, or 10 or more Category 2 marine engines. Information required by paragraph (c) of this section that is either not available within 15 working days or is significantly revised must be submitted as it becomes available.

(c) Except as provided in paragraph (b) of this section, each defect report must contain the following information in substantially the format outlined:

(1) The manufacturer's corporate name.

(2) A description of the defect.

(3) A description of each class or category of engines potentially affected by the defect including make, model, calendar year produced, purchaser and any other information as may be required to identify the engines affected.

(4) For each class or category of engines described in response to paragraph (c)(3) of this section, the following shall also be provided:

(i) The number of engines known or estimated to have the defect and an explanation of the means by which this number was determined.

(ii) The address of the plant(s) at which the potentially defective engines were produced.

(5) An evaluation of the emissions impact of the defect and a description of any operational or performance problems which a defective engine might exhibit.

(6) Available emissions data which relate to the defect.

(7) An indication of any anticipated follow-up by the manufacturer.

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9786, Feb. 28, 2003]

§94.404   Voluntary emissions recall reporting.

(a) When any manufacturer initiates a voluntary emissions recall campaign involving an engine, the manufacturer shall submit to EPA a report describing the manufacturer's voluntary emissions recall plan as prescribed by this section within 15 working days of the date owner notification was begun. The report shall contain the following:

(1) A description of each class or category of engines recalled including the number of engines to be recalled, the calendar year if applicable, the make, the model, and such other information as may be required to identify the engines recalled.

(2) A description of the specific modifications, alterations, repairs, corrections, adjustments, or other changes to be made to correct the engines affected by the emission-related defect.

(3) A description of the method by which the manufacturer will notify engine owners.

(4) A description of the proper maintenance or use, if any, upon which the manufacturer conditions eligibility for repair under the remedial plan, an explanation of the manufacturer's reasons for imposing any such condition, and a description of the proof to be required of an engine owner to demonstrate compliance with any such condition.

(5) 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 defect, and the designation of facilities at which the defect can be remedied.

(6) If some or all the nonconforming engines are to be remedied by persons other than authorized warranty agents of the manufacturer, a description of the class of persons other than authorized warranty agents of the manufacturer who will remedy the defect.

(7) A copy of any written notification sent to engine owners.

(8) A description of the system by which the manufacturer will assure that an adequate supply of parts will be available to perform the repair under the remedial plan including the date by which an adequate supply of parts will be available to initiate the repair campaign, the percentage of the total parts requirement of each person who is to perform the repair under the remedial plan to be shipped to initiate the campaign, and the method to be used to assure the supply remains both adequate and responsive to owner demand.

(9) Three copies of all necessary instructions to be sent to those persons who are to perform the repair under the remedial plan.

(10) A description of the impact of the changes on fuel consumption, operation or performance, and safety of each class or category of engines to be recalled.

(11) A sample of any label to be applied to engines which participate in the voluntary recall campaign.

(b) Unless otherwise specified by the Administrator, the manufacturer shall report on the progress of the recall campaign by submitting subsequent reports for six consecutive quarters, or until proven that remedial action has been adequately taken on all affected engines, whichever occurs first, commencing with the quarter after the voluntary emissions recall campaign actually begins. Such reports shall be submitted no later than 25 working days after the close of each calendar quarter. For each class or group of engine subject to the voluntary emissions recall campaign, the quarterly report shall contain the:

(1) Emission recall campaign number, if any, designated by the manufacturer.

(2) Date owner notification was begun, and date completed.

(3) Number of engines involved in the voluntary emissions recall campaign.

(4) Number of engines known or estimated to be affected by the emission-related defect and an explanation of the means by which this number was determined.

(5) Number of engines inspected pursuant to voluntary emission recall plan.

(6) Number of inspected engines found to be affected by the emissions-related defect.

(7) Number of engines actually receiving repair under the remedial plan.

(8) Number of engines determined to be unavailable for inspection or repair under the remedial plan due to exportation, scrappage, or for other reasons (specify).

(9) Number of engines determined to be ineligible for remedial action due to a failure to properly maintain or use such engines.

(10) Three copies of any service bulletins which relate to the defect to be corrected and which have not previously been reported.

(11) Three copies of all communications transmitted to engine owners which relate to the defect to be corrected and which have not previously been submitted.

(c) If the manufacturer determines that any of the information requested in paragraph (b) of this section has changed or was incorrect, revised information and an explanatory note shall be submitted. Answers to paragraphs (b)(5), (6), (7), (8), and (9) of this section shall be cumulative totals.

(d) The manufacturer shall maintain in a form suitable for inspection, such as computer information storage devices or card files, the names and addresses of engine owners:

(1) To whom notification was given;

(2) Who received remedial repair or inspection under the remedial plan; and

(3) Who were determined not to qualify for such remedial action when eligibility is conditioned on proper maintenance or use.

(e) The records described in paragraph (d) of this section shall be made available to the Administrator upon request.

§94.405   Alternative report formats.

(a) Any manufacturer may submit a plan for making either of the reports required by §§94.403 and 94.404 on computer diskettes, magnetic tape or other machine readable format. The plan shall be accompanied by sufficient technical detail to allow a determination that data requirements of these sections will be met and that the data in such format will be usable by EPA.

(b) Upon approval by the Administrator of the reporting system, the manufacturer may use such system until otherwise notified by the Administrator.

§94.406   Reports filing: record retention.

(a) The reports required by §§94.403 and 94.404 shall be sent to the Designated Officer.

(b) The information gathered by the manufacturer to compile the reports required by §§94.403 and 94.404 shall be retained for not less than 8 years from the date of the manufacture of the engines and shall be made available to duly authorized officials of the EPA upon request.

§94.407   Responsibility under other legal provisions preserved.

The filing of any report under the provisions of this subpart shall not affect a manufacturer's responsibility to file reports or applications, obtain approval, or give notice under any provision of law.

§94.408   Disclaimer of production warranty applicability.

(a) The act of filing an Emission Defect Information Report pursuant to §94.403 is inconclusive as to the existence of a defect subject to the warranty provided by section 207(a) of the Act.

(b) A manufacturer may include on each page of its Emission Defect Information Report a disclaimer stating that the filing of a Defect Information Report pursuant to this subpart is not conclusive as to the applicability of the Production Warranty provided by section 207(a) of the Act.

Subpart F—Manufacturer Production Line Testing Programs

§94.501   Applicability.

(a) The requirements of this subpart are applicable to manufacturers of engines subject to the provisions of subpart A of this part, excluding small-volume manufacturers.

(b) The provisions of subpart F of 40 CFR part 89 (Selective Enforcement Audit) apply to engines subject to the provisions of subpart A of this part.

(c) Manufacturers may comply with the provisions of 40 CFR part 1042, subpart D, instead of the provisions of this subpart F.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68346, Nov. 8, 2002; 73 FR 37197, June 30, 2008]

§94.502   Definitions.

The definitions in subpart A of this part apply to this subpart.

§94.503   General requirements.

(a) For Tier 2 and later Category 1 and Category 2 engines, manufacturers shall test production line engines in accordance with sampling procedures specified in §94.505 and the test procedures specified in §94.506. The production-line testing requirements of this part do not apply for other engines.

(b) Upon request, the Administrator may also allow manufacturers to conduct alternate production line testing programs for Category 1 and Category 2 engines, provided the Administrator determines that the alternate production line testing program provides equivalent assurance that the engines that are being produced conform to the provisions of this part. As part of this allowance or for other reasons, the Administrator may waive some or all of the requirements of this subpart.

(c) The requirements of this subpart apply with respect to all applicable standards and FELs of subpart A of this part, including the supplemental standards of §94.8(e).

(d) If you certify an engine family with carryover emission data, as described in §94.206(c), and these equivalent engine families consistently pass the production-line testing requirements over the preceding two-year period, you may ask for a reduced testing rate for further production-line testing for that family. The minimum testing rate is one engine per engine family. If we reduce your testing rate, we may limit our approval to any number of model years. In determining whether to approve your request, we may consider the number of engines that have failed the emission tests.

[64 FR 73331, Dec. 29, 1999, as amended at 67 FR 68341, Nov. 8, 2002; 68 FR 9787, Feb. 28, 2003]

§94.504   Right of entry and access.

(a) To allow the Administrator to determine whether a manufacturer is complying with the provisions of this part, one or more EPA enforcement officers may enter during operating hours and upon presentation of credentials any of the following places:

(1) Any facility, including ports of entry, where any engine is to be introduced into commerce or any emission-related component is manufactured, assembled, or stored;

(2) Any facility where any test conducted pursuant to a manufacturer's production line testing program or any procedure or activity connected with such test is or was performed;

(3) Any facility where any test engine is present; and

(4) Any facility where any record required under §94.509 or other document relating to this subpart is located.

(b) Upon admission to any facility referred to in paragraph (a) of this section, EPA enforcement officers are authorized to perform the following inspection-related activities:

(1) To inspect and monitor any aspect of engine manufacture, assembly, storage, testing and other procedures, and to inspect and monitor the facilities in which these procedures are conducted;

(2) To inspect and monitor any aspect of engine test procedures or activities, including test engine selection, preparation and service accumulation, emission duty cycles, and maintenance and verification of test equipment calibration;

(3) To inspect and make copies of any records or documents related to the assembly, storage, selection, and testing of an engine; and

(4) To inspect and photograph any part or aspect of any engine and any component used in the assembly thereof that is reasonably related to the purpose of the entry.

(c) EPA enforcement officers are authorized to obtain reasonable assistance without cost from those in charge of a facility to help the officers perform any function listed in this subpart and they are authorized to request the manufacturer to make arrangements with those in charge of a facility operated for the manufacturer benefit to furnish reasonable assistance without cost to EPA.

(1) Reasonable assistance includes, but is not limited to, clerical, copying, interpretation and translation services; the making available on an EPA enforcement officer's request of personnel of the facility being inspected during their working hours to inform the EPA enforcement officer of how the facility operates and to answer the officer's questions; and the performance on request of emission tests on any engine which is being, has been, or will be used for production line testing.

(2) By written request, signed by the Assistant Administrator for Air and Radiation or the Assistant Administrator for Enforcement and Compliance Assurance, and served on the manufacturer, a manufacturer may be compelled to cause the personal appearance of any employee at such a facility before an EPA enforcement officer. Any such employee who has been instructed by the manufacturer to appear will be entitled to be accompanied, represented, and advised by counsel.

(d) EPA enforcement officers are authorized to seek a warrant or court order authorizing the EPA enforcement officers to conduct the activities authorized in this section, as appropriate, to execute the functions specified in this section. EPA enforcement officers may proceed ex parte to obtain a warrant or court order whether or not the EPA enforcement officers first attempted to seek permission from the manufacturer or the party in charge of the facility(ies) in question to conduct the activities authorized in this section.

(e) A manufacturer is responsible for locating its foreign testing and manufacturing facilities in jurisdictions where local law does not prohibit an EPA enforcement officer(s) from conducting the activities specified in this section. EPA will not attempt to make any inspections which it has been informed local foreign law prohibits.

§94.505   Sample selection for testing.

(a) At the start of each model year, the manufacturer will begin to select engines from each Category 1 and Category 2 engine family for production line testing. Each engine will be selected from the end of the production line. Testing shall be performed throughout the entire model year to the extent possible. Engines selected shall cover the broadest range of production possible.

(1)(i) The required sample size for Category 1 engine manufacturers is one percent of projected annual U.S.-directed production for all Category 1 engine families, provided that no engine tested fails to meet applicable emission standards. Test engines shall include a proportional sample from each engine family. The required sample size is zero if a manufacturer's projected annual production for all Category 1 engine families is less than 100.

(ii) The required sample size for a Category 2 engine family is one percent of projected annual U.S.-directed production for that engine family, with a minimum sample size of one test per model year provided that no engine tested fails to meet applicable emission standards.

(2) Manufacturers may elect to test additional engines. All additional engines must be tested in accordance with the applicable test procedures of this part.

(3) The Administrator may reject any engines selected by the manufacturer if he/she determines that such engines are not representative of actual production.

(b) The manufacturer must assemble the test engines using the same mass production process that will be used for engines to be introduced into commerce.

(c) No quality control, testing, or assembly procedures will be used on any test engine or any portion thereof, including parts and subassemblies, that have not been or will not be used during the production and assembly of all other engines of that family, except with the approval of the Administrator.

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

§94.506   Test procedures.

(a)(1) For engines subject to the provisions of this subpart, the prescribed test procedures are those procedures described in Subpart B of this part, except as provided in this section.

(2) The Administrator may, on the basis of a written application by a manufacturer, prescribe test procedures other than those specified in paragraph (a)(1) of this section for any engine he/she determines is not susceptible to satisfactory testing using procedures specified in paragraph (a)(1) of this section.

(3) If test procedures other than those in Subpart B of this part were used in certification of the engine family being tested under this subpart (other than alternate test procedures necessary for testing of a development engine instead of a low hour engine under §94.9), the manufacturer shall use the test procedures used in certification for production line testing.

(b)(1) The manufacturer may not adjust, repair, prepare, modify, or perform any emission test on any test engine unless this adjustment, repair, preparation, modification and/or test is documented in the manufacturer's engine assembly and inspection procedures and is actually performed by the manufacturer or unless this adjustment, repair, preparation, modification and/or test is required or permitted under this subpart or is approved in advance by the Administrator.

(2) Any adjustable engine parameter must be set to values or positions that are within the range specified in the approved application for certification.

(3) The Administrator may adjust or require to be adjusted any engine parameter which the Administrator has determined to be subject to adjustment for certification and production line testing, to any setting within the specified adjustable range of that parameter, as determined by the Administrator, prior to the performance of any test.

(c) Service Accumulation/Green Engine Factor. The manufacturer shall accumulate up to 300 hours of service on the engines to be tested. In lieu of conducting such service accumulation, the manufacturer may establish a Green Engine Factor for each regulated pollutant for each engine family to be used in calculating emissions test results. The manufacturer shall obtain the approval of the Administrator prior to using a Green Engine Factor.

(d) The manufacturer may not perform any maintenance on test engines after selection for testing.

(e) If an engine is shipped to a facility other than the production facility for production line testing, and an adjustment or repair is necessary because of such shipment, the engine manufacturer must perform the necessary adjustment or repair only after the initial test of the engine, except where the Administrator has determined that the test would be impossible to perform or would permanently damage the engine.

(f) If an engine cannot complete the service accumulation or an emission test, because of a malfunction, the manufacturer may request that the Administrator authorize either the repair of that engine or its deletion from the test sequence.

(g) Retesting. If an engine manufacturer determines that any production line emission test of an engine is invalid, the engine must be retested in accordance with the requirements of this subpart. Emission results from all tests must be reported to EPA, including test results the manufacturer determines are invalid. The engine manufacturer must also include a detailed explanation of the reasons for invalidating any test in the quarterly report required in §94.508(e). In the event a retest is performed, a request may be made to the Administrator, within ten days of the end of the production quarter, for permission to substitute the after-repair test results for the original test results. The Administrator will either affirm or deny the request by the engine manufacturer within ten working days from receipt of the request.

§94.507   Sequence of testing.

(a) If one or more Category 1 or Category 2 engines fail a production line test, then the manufacturer must test two additional engines for each engine that fails.

(b) The two additional engines tested under paragraph (a) of this section shall be selected from either the next fifteen produced in that engine family, or from those engines produced in that engine family within 48 hours of the completion of the failed test.

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

§94.508   Calculation and reporting of test results.

(a) Manufacturers shall calculate initial test results using the applicable test procedure specified in §94.506(a). These results must also include the Green Engine Factor, if applicable. Round these results to the number of decimal places contained in the applicable emission standard expressed to one additional significant figure.

(b) To calculate test results, sum the initial test results derived in paragraph (a) of this section for each test engine, divide by the number of tests conducted on the engine, and round to the same number of decimal places contained in the applicable standard expressed to one additional decimal place. (For example, if the applicable standard is 7.8, then round the test results to two places to the right of the decimal.)

(c) To calculate the final test results for each test engine, apply the appropriate deterioration factors, derived in the certification process for the engine family, to the test results described in paragraph (b) of this section; round to the same number of decimal places contained in the applicable standard expressed to one additional decimal place. (For example, if the applicable standard is 7.8, then round the test results to two places to the right of the decimal.)

(d)(1) If, subsequent to an initial failure of a Category 1 or Category 2 production line test, the average of the test results for the failed engine and the two additional engines tested, is greater than any applicable emission standard or FEL, the engine family is deemed to be in non-compliance with applicable emission standards, and the manufacturer must notify the Administrator within 2 working days of such noncompliance.

(2) [Reserved]

(e) Within 30 calendar days of the end of each quarter in which production line testing occurs, each manufacturer must submit to the Administrator a report which includes the following information:

(1) The location and description of the manufacturer's emission test facilities which were utilized to conduct testing reported pursuant to this section;

(2) Total production and sample size for each engine family;

(3) The applicable standards and/or FELs against which each engine family was tested;

(4) A description of the test engines;

(5) For each test conducted:

(i) A description of the test engine, including:

(A) Configuration and engine family identification;

(B) Year, make, and build date;

(C) Engine identification number;

(D) Number of hours of service accumulated on engine prior to testing; and

(E) Description of Green Engine Factor; how it is determined and how it is applied;

(ii) Location(s) where service accumulation was conducted and description of accumulation procedure and schedule, if applicable;

(iii) Test number, date, test procedure used, initial test results before and after rounding, and final test results for all production line emission tests conducted, whether valid or invalid, and the reason for invalidation of any test results, if applicable;

(iv) A complete description of any adjustment, modification, repair, preparation, maintenance, and testing which was performed on the test engine, has not been reported pursuant to any other paragraph of this subpart, and will not be performed on other production engines;

(v) Any other information the Administrator may request relevant to the determination whether the new engines being manufactured by the manufacturer do in fact conform with the regulations with respect to which the certificate of conformity was issued;

(6) For each failed engine as defined in §94.510(a), a description of the remedy and test results for all retests as required by §94.512(g);

(7) The date of the end of the engine manufacturer's model year production for each engine family tested; and

(8) The following signed statement and endorsement by an authorized representative of the manufacturer:

This report is submitted pursuant to Sections 213 and 208 of the Clean Air Act. This production line testing program was conducted in complete conformance with all applicable regulations under 40 CFR part 94. No emission-related changes to production processes or quality control procedures for the engine family tested have been made during this production line testing program that affect engines from the production line. All data and information reported herein is, to the best of (Company Name) knowledge, true and accurate. I am aware of the penalties associated with violations of the Clean Air Act and the regulations thereunder.

(Authorized Company Representative.)

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

§94.509   Maintenance of records; submittal of information.

(a) The manufacturer for any new engine subject to any of the provisions of this subpart must establish, maintain, and retain the following adequately organized and indexed records:

(1) General records. A description of all equipment used to test engines in accordance with §94.503. The equipment requirements in Subpart B of this part apply to tests performed under this subpart.

(2) Individual records. These records pertain to each production line test conducted pursuant to this subpart and include:

(i) The date, time, and location of each test;

(ii) The method by which the Green Engine Factor was calculated or the number of hours of service accumulated on the test engine when the test began and ended;

(iii) The names of all supervisory personnel involved in the conduct of the production line test;

(iv) A record and description of any adjustment, repair, preparation or modification performed on test engines, giving the date, associated time, justification, name(s) of the authorizing personnel, and names of all supervisory personnel responsible for the conduct of the action;

(v) If applicable, the date the engine was shipped from the assembly plant, associated storage facility or port facility, and the date the engine was received at the testing facility;

(vi) A complete record of all emission tests performed pursuant to this subpart (except tests performed directly by EPA), including all individual worksheets and/or other documentation relating to each test, or exact copies thereof, in accordance with the record requirements specified in Subpart B of this part;

(vii) A brief description of any significant events during testing not otherwise described under this paragraph (a)(2) of this section, commencing with the test engine selection process and including such extraordinary events as engine damage during shipment.

(3) The manufacturer must establish, maintain and retain general records, pursuant to paragraph (a)(1) of this section, for each test cell that can be used to perform emission testing under this subpart.

(b) The manufacturer must retain all records required to be maintained under this subpart for a period of eight (8) years after completion of all testing. Records may be retained as hard copy (i.e., on paper) or reduced to microfilm, floppy disk, or some other method of data storage, depending upon the manufacturer's record retention procedure; provided, that in every case, all the information contained in the hard copy is retained.

(c) The manufacturer must, upon request by the Administrator, submit the following information with regard to engine production:

(1) Projected production for each configuration within each engine family for which certification has been requested and/or approved.

(2) Number of engines, by configuration and assembly plant, scheduled for production.

(d) Nothing in this section limits the Administrator's discretion to require a manufacturer to establish, maintain, retain or submit to EPA information not specified by this section.

(e) All reports, submissions, notifications, and requests for approval made under this subpart must be addressed to the Designated Officer.

(f) The manufacturer must electronically submit the results of its production line testing using an EPA information format.

§94.510   Compliance with criteria for production line testing.

(a) A failed engine is one whose final test results pursuant to §94.508(c), for one or more of the applicable pollutants, exceed an applicable emission standard or FEL.

(b) A Category 1 or Category 2 engine family is deemed to be in noncompliance, for purposes of this subpart, if at any time throughout the model year, the average of an initial failed engine and the two additional engines tested, is greater than any applicable emission standard or FEL.

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

§94.511   [Reserved]

§94.512   Suspension and revocation of certificates of conformity.

(a) The certificate of conformity is suspended with respect to any engine that fails a production line test pursuant to §94.510(a), effective from the time the testing of that engine is completed.

(b) The Administrator may suspend the certificate of conformity for an engine family which is in noncompliance pursuant to §94.510(b), thirty days after the engine family is deemed to be in noncompliance.

(c) If the results of testing pursuant to this subpart indicate that engines of a particular family produced at one plant of a manufacturer do not conform to the regulations with respect to which the certificate of conformity was issued, the Administrator may suspend the certificate of conformity with respect to that family for engines manufactured by the manufacturer at all other plants.

(d) The Administrator may suspend a certificate of conformity for any engine family in whole or in part if:

(1) The manufacturer fails to comply with any of the requirements of this subpart.

(2) The manufacturer submits false or incomplete information in any report or information provided to the Administrator under this subpart.

(3) The manufacturer renders inaccurate any test data submitted under this subpart.

(4) An EPA enforcement officer is denied the opportunity to conduct activities authorized in this subpart.

(5) An EPA enforcement officer is unable to conduct activities authorized in §94.504 for any reason.

(e) The Administrator shall notify the manufacturer in writing of any suspension or revocation of a certificate of conformity in whole or in part; a suspension or revocation is effective upon receipt of such notification or thirty days from the time an engine family is deemed to be in noncompliance under §§94.508(d), 94.510(a), or 94.510(b), whichever is earlier, except that the certificate is immediately suspended with respect to any failed engines as provided for in paragraph (a) of this section.

(f) The Administrator may revoke a certificate of conformity for an engine family when the certificate has been suspended pursuant to paragraph (b) or (c) of this section if the remedy is one requiring a design change or changes to the engine and/or emission control system as described in the application for certification of the affected engine family.

(g) Once a certificate has been suspended for a failed engine, as provided for in paragraph (a) of this section, the manufacturer must take the following actions before the certificate is reinstated for that failed engine:

(1) Remedy the nonconformity;

(2) Demonstrate that the engine conforms to applicable standards or family emission limits by retesting if applicable, the engine in accordance with this part; and

(3) Submit a written report to the Administrator, after successful completion of testing on the failed engine, which contains a description of the remedy and test results for each engine in addition to other information that may be required by this part.

(h) Once a certificate for a failed engine family has been suspended pursuant to paragraph (b) or (c) of this section, the manufacturer must take the following actions before the Administrator will consider reinstating the certificate:

(1) Submit a written report to the Administrator which identifies the reason for the noncompliance of the engines, describes the remedy, including a description of any quality control and/or quality assurance measures to be taken by the manufacturer to prevent future occurrences of the problem, and states the date on which the remedies will be implemented.

(2) Demonstrate that the engine family for which the certificate of conformity has been suspended does in fact comply with the regulations of this part by testing engines selected from normal production runs of that engine family. Such testing must comply with the provisions of this subpart. If the manufacturer elects to continue testing individual engines after suspension of a certificate, the certificate is reinstated for any engine actually determined to be in conformance with the applicable standards or family emission limits through testing in accordance with the applicable test procedures, provided that the Administrator has not revoked the certificate pursuant to paragraph (f) of this section.

(i) Once the certificate has been revoked for an engine family, if the manufacturer desires to continue introduction into commerce of a modified version of that family, the following actions must be taken before the Administrator may issue a certificate for that modified family:

(1) If the Administrator determines that the change(s) in engine design may have an effect on emission performance deterioration, the Administrator shall notify the manufacturer, within five working days after receipt of the report in paragraph (h)(1) of this section, whether subsequent testing under this subpart will be sufficient to evaluate the change or changes or whether additional testing will be required; and

(2) After implementing the change or changes intended to remedy the nonconformity, the manufacturer must demonstrate that the modified engine family does in fact conform with the regulations of this part by testing engines selected from normal production runs of that engine family. When both of these requirements are met, the Administrator shall reissue the certificate or issue a new certificate, as the case may be, to include that family. If this subsequent testing reveals failing data the revocation remains in effect.

(j) At any time subsequent to an initial suspension of a certificate of conformity for a test engine pursuant to paragraph (a) of this section, but not later than 30 days (or such other period as may be allowed by the Administrator) after notification of the Administrator's decision to suspend or revoke a certificate of conformity in whole or in part pursuant to paragraph (b), (c), or (f) of this section, a manufacturer may request a hearing as to whether the tests have been properly conducted or any sampling methods have been properly applied.

(k) Any suspension of a certificate of conformity under paragraphs (a),(b),(c) and (d) of this section:

(1) Shall be made only after the manufacturer concerned has been offered an opportunity for a hearing conducted in accordance with §§94.513, 94.514, and 94.515; and

(2) Need not apply to engines no longer in the possession of the manufacturer.

(l) After the Administrator suspends or revokes a certificate of conformity pursuant to this section or voids a certificate of conformity under paragraph §94.215, and prior to the commencement of a hearing under §94.513, if the manufacturer demonstrates to the Administrator's satisfaction that the decision to suspend, revoke, or void the certificate was based on erroneous information, the Administrator shall reinstate the certificate.

(m) To permit a manufacturer to avoid storing non-test engines while conducting subsequent testing of the noncomplying family, a manufacturer may request that the Administrator conditionally reinstate the certificate for that family. The Administrator may reinstate the certificate subject to the following condition: the manufacturer must commit to recall all engines of that family produced from the time the certificate is conditionally reinstated if the family fails subsequent testing and must commit to remedy any nonconformity at no expense to the owner.

§94.513   Request for public hearing.

(a) If the manufacturer disagrees with the Administrator's decision to suspend or revoke a certificate or disputes the basis for an automatic suspension pursuant to §94.512(a), the manufacturer may request a public hearing.

(b) The manufacturer's request shall be filed with the Administrator not later than 30 days after the Administrator's notification of his or her decision to suspend or revoke, unless otherwise specified by the Administrator. The manufacturer shall simultaneously serve two copies of this request upon the Designated Officer and file two copies with the Hearing Clerk of the Agency. Failure of the manufacturer to request a hearing within the time provided constitutes a waiver of the right to a hearing. Subsequent to the expiration of the period for requesting a hearing as of right, the Administrator may, in his or her discretion and for good cause shown, grant the manufacturer a hearing to contest the suspension or revocation.

(c) A manufacturer shall include in the request for a public hearing:

(1) A statement as to which configuration(s) within a family is to be the subject of the hearing;

(2) A concise statement of the issues to be raised by the manufacturer at the hearing, except that in the case of the hearing requested under §94.512(j), the hearing is restricted to the following issues:

(i) Whether tests have been properly conducted (specifically, whether the tests were conducted in accordance with applicable regulations under this part and whether test equipment was properly calibrated and functioning);

(ii) Whether there exists a basis for distinguishing engines produced at plants other than the one from which engines were selected for testing which would invalidate the Administrator's decision under §94.512(c));

(3) A statement specifying reasons why the manufacturer believes it will prevail on the merits of each of the issues raised; and

(4) A summary of the evidence which supports the manufacturer's position on each of the issues raised.

(d) A copy of all requests for public hearings will be kept on file in the Office of the Hearing Clerk and will be made available to the public during Agency business hours.

§94.514   Administrative procedures for public hearing.

(a) The Presiding Officer shall be an Administrative Law Judge appointed pursuant to 5 U.S.C. 3105 (see also 5 CFR part 930).

(b) The Judicial Officer shall be an officer or employee of the Agency appointed as a Judicial Officer by the Administrator, pursuant to this section, who shall meet the qualifications and perform functions as follows:

(1) Qualifications. A Judicial Officer may be a permanent or temporary employee of the Agency who performs other duties for the Agency. The Judicial Officer shall not be employed by the Office of Enforcement or have any connection with the preparation or presentation of evidence for a hearing held pursuant to this subpart. The Judicial Officer shall be a graduate of an accredited law school and a member in good standing of a recognized Bar Association of any state or the District of Columbia.

(2) Functions. The Administrator may consult with the Judicial Officer or delegate all or part of the Administrator's authority to act in a given case under this section to a Judicial Officer, provided that this delegation does not preclude the Judicial Officer from referring any motion or case to the Administrator when the Judicial Officer determines such referral to be appropriate.

(c) For the purposes of this section, one or more Judicial Officers may be designated by the Administrator. As work requires, a Judicial Officer may be designated to act for the purposes of a particular case.

(d)(1) In the case of a hearing requested under §94.512(j), when it clearly appears from the data and other information contained in the request for a hearing that no genuine and substantial question of fact or law exists with respect to the issues specified in §94.513(c)(2), the Administrator may enter an order denying the request for a hearing and reaffirming the original decision to suspend or revoke a certificate of conformity.

(2) In the case of a hearing requested under §94.513 to challenge a suspension of a certificate of conformity for the reason(s) specified in §94.512(d), when it clearly appears from the data and other information contained in the request for the hearing that no genuine and substantial question of fact or law exists with respect to the issue of whether the refusal to comply with this subpart was caused by conditions and circumstances outside the control of the manufacturer, the Administrator may enter an order denying the request for a hearing and suspending the certificate of conformity.

(3) Any order issued under paragraph (d)(1) or (d)(2) of this section has the force and effect of a final decision of the Administrator, as issued pursuant to §94.516.

(4) If the Administrator determines that a genuine and substantial question of fact or law does exist with respect to any of the issues referred to in paragraphs (d)(1) and (d)(2) of this section, the Administrator shall grant the request for a hearing and publish a notice of public hearing in the Federal Register or by such other means as the Administrator finds appropriate to provide notice to the public.

(e) Filing and service. (1) An original and two copies of all documents or papers required or permitted to be filed pursuant to this section and §94.513(c) must be filed with the Hearing Clerk of the Agency. Filing is considered timely if mailed, as determined by the postmark, to the Hearing Clerk within the time allowed by this section and §94.513(b). If filing is to be accomplished by mailing, the documents must be sent to the address set forth in the notice of public hearing referred to in paragraph (d)(4) of this section.

(2) To the maximum extent possible, testimony will be presented in written form. Copies of written testimony will be served upon all parties as soon as practicable prior to the start of the hearing. A certificate of service will be provided on or accompany each document or paper filed with the Hearing Clerk. Documents to be served upon the Director of the Engine Programs and Compliance Division must be sent by registered mail to: Director, Engine Programs and Compliance Division 6403-J, U.S. Environmental Protection Agency, 401 M St. SW., Washington, DC 20460. Service by registered mail is complete upon mailing.

(f) Computation of time. (1) In computing any period of time prescribed or allowed by this section, except as otherwise provided, the day of the act or event from which the designated period of time begins to run is not included. Saturdays, Sundays, and federal legal holidays are included in computing the period allowed for the filing of any document or paper, except that when the period expires on a Saturday, Sunday, or federal legal holiday, the period is extended to include the next following business day.

(2) A prescribed period of time within which a party is required or permitted to do an act is computed from the time of service, except that when service is accomplished by mail, three days will be added to the prescribed period.

(g) Consolidation. The Administrator or the Presiding Officer in his or her discretion may consolidate two or more proceedings to be held under this section for the purpose of resolving one or more issues whenever it appears that consolidation will expedite or simplify consideration of these issues. Consolidation does not affect the right of any party to raise issues that could have been raised if consolidation had not occurred.

(h) Hearing date. To the extent possible hearings under §94.513 will be scheduled to commence within 14 days of receipt of the request for a hearing.

§94.515   Hearing procedures.

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

§94.516   Appeal of hearing decision.

The procedures provided in 40 CFR 86.1014-84 (t) through (aa) apply for appeals filed with respect to hearings held pursuant to §94.515.

§94.517   Treatment of confidential information.

Except for information required by §94.508(e)(2) and quarterly emission test results described in §94.508(e), information submitted pursuant to this subpart shall be made available to the public by EPA, notwithstanding any claim of confidentiality made by the submitter. The provisions for treatment of confidential information described in §94.4 apply to the information required by §94.508(e)(2) and quarterly emission test results described in §94.508(e).

Subpart G [Reserved]

Subpart H—Recall Regulations

§94.701   Applicability.

The requirements of this subpart are applicable to all engines subject to the provisions of this part.

§94.702   Definitions.

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

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

(a) Engines subject to provisions of this part are subject to recall regulations specified in 40 CFR part 85, subpart S, except for the items set forth in this section.

(b) In 40 CFR 85.1801, section 216 of the Clean Air Act applies, rather than section 214 of the Act.

(c) In 40 CFR 85.1802(a), section 213 of the Act applies, rather than section 202 of the Act.

(d) In 40 CFR 85.1803(a) and 85.1805(a)(1) the reference to “family emission limits” as defined in this part 94 promulgated under section 213 of the Act applies, rather than the reference to “family particulate emission limits as defined in 40 CFR part 86 promulgated under section 202 of the Act”.

(e) Throughout the subpart references to “engines” apply rather than references to “vehicles or engines”.

Subpart I—Importation of Nonconforming Engines

§94.801   Applicability.

(a) Except where otherwise indicated, this subpart is applicable to importers of engines (and vessels containing engines) for which the Administrator has promulgated regulations under this part prescribing emission standards, that are offered for importation or imported into the United States, but which engines, at the time of importation or being offered for importation, are not covered by certificates of conformity issued under section 213 and section 206(a) of the Clean Air Act (that is, which are nonconforming engines as defined in §94.2), and this part. Compliance with regulations under this subpart does not relieve any person or entity from compliance with other applicable provisions of the Clean Air Act.

(b) Regulations prescribing further procedures for the importation of engines into the Customs territory of the United States are set forth in U.S. Customs Service regulations (19 CFR chapter I).

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

§94.802   Definitions.

The definitions of Subpart A of this part apply to this subpart.

§94.803   Admission.

(a) A nonconforming engine offered for importation may be admitted into the United States pursuant to the provisions of this subpart. Subpart C of this part, including §94.222, describes how to certify engines installed on vessels before they are imported.

(b) To obtain admission, the importer must submit to the Administrator a written request for approval containing the following:

(1) Identification of the importer of the engine and the importer's address, telephone number, and taxpayer identification number;

(2) Identification of the engine's owner, the owner's address, telephone number, and taxpayer identification number;

(3) Identification of the engine including make, model, identification number, and original production year;

(4) Information indicating the provision in this subpart under which the engine is to be imported, including a demonstration of how it qualifies for the requested exemption;

(5) Identification of the place(s) where the engine is to be stored until EPA approval of the importer's application to the Administrator for final admission;

(6) Authorization for EPA enforcement officers to conduct inspections or testing otherwise permitted by the Act or regulations thereunder; and

(7) Such other information as is deemed necessary by the Administrator.

§94.804   Exemptions.

(a) General provisions. (1) Unless otherwise specified, any person may apply for the exemptions allowed by this section.

(2) Paragraph (b) of this section describes the provisions that apply to temporary exemptions. Paragraph (c) of this section describes provisions that apply to permanent exemptions.

(3) Applications for exemption under this section shall be mailed to the Designated Officer.

(b) Notwithstanding other requirements of this subpart, a nonconforming engine that qualifies for a temporary exemption under this paragraph (b) may be conditionally admitted into the United States if prior written approval for the conditional admission is obtained from the Administrator. Conditional admission is to be under bond. The Administrator may request that the U.S. Customs Service require a specific bond amount to ensure compliance with the requirements of the Act and this subpart. A written request for a temporary exemption from the Administrator shall contain the information required in §94.803. Noncompliance with the provisions of this paragraph (b) will be considered unlawful importation and may result in the forfeiture of the total amount of the bond, exportation of the engine, and/or imposition of civil penalties.

(1) Exemption for repairs or alterations. A person may conditionally import under bond a nonconforming engine solely for purpose of repair(s) or alteration(s). The engine may not be operated in the United States other than for the sole purpose of repair or alteration or shipment to the point of repair or alteration and to the port of export. It may not be sold or leased in the United States and is to be exported upon completion of the repair(s) or alteration(s).

(2) Testing exemption. A person may conditionally import under bond a nonconforming engine for testing, subject to the requirements of §94.905. A test engine may be operated in the United States provided that the operation is an integral part of the test. This exemption is limited to a period not exceeding one year from the date of importation unless a request is made by the appropriate importer, and subsequently granted by EPA, concerning the engine in accordance with §94.905 for a subsequent one-year period.

(3) Display exemptions. A person may conditionally import under bond a nonconforming engine solely for display purposes, subject to both of the following requirements:

(i) A display engine may be imported by any person for purposes related to a business or the public interest. Such purposes do not include collections normally inaccessible or unavailable to the public on a daily basis, display of an engine at a dealership, private use, or other purpose that the Administrator determines is not appropriate for display exemptions. A display engine may not be sold or leased in the United States and may not be operated in the United States except for the operation incident and necessary to the display purpose.

(ii) A display exemption is granted for 12 months or for the duration of the display purpose, whichever is shorter. Extensions of up to 12 months each are available upon approval by the Administrator. In no circumstances, however, may the total period of exemption exceed 36 months.

(c) A nonconforming engine that qualifies for a permanent exemption under this paragraph (c) may be admitted into the United States if prior written approval is obtained from the Administrator. A written request for a permanent exemption from the Administrator shall contain the information required in §94.803. Noncompliance with the provisions of this paragraph (c) will be considered unlawful importation and may result in the exportation of the engine and/or imposition of civil penalties.

(1) National security exemption. Notwithstanding any other requirement of this subpart, an engine may be permanently imported into the United States under the national security exemption found in §94.908.

(2) Competition exemption. Notwithstanding any other requirement of this subpart, an engine may be permanently imported into the United States under the competition exemption found in §94.906(c).

(3) Incomplete marine engine exemption. An engine that is intended to be modified prior to being placed into service as a marine engine may be imported in a nonconforming configuration, subject to the following provisions:

(i) The modified engine must be covered by a valid marine engine certificate issued under this part prior to importation and held by a post-manufacture marinizer. (Note: Prior to certification, manufacturers and post-manufacture marinizers may import uncertified engines for testing, as specified in paragraph (b)(2) of this section.)

(ii) The engine may not be placed into non-marine service prior to being installed in a vessel.

(iii) The importer must obtain written approval from the Administrator prior to admission.

(iv) The engine and engine container must be labeled as specified by the Administrator.

(v) A manufacturer importing an engine under this exemption must modify the engine to comply with the requirements of this part.

§94.805   Prohibited acts; penalties.

(a) The importation of an engine (including an engine incorporated in an imported marine vessel) which is not covered by a certificate of conformity other than in accordance with this subpart and the entry regulations of the U.S. Customs Service is prohibited. Failure to comply with this section is a violation of section 213(d) and section 203 of the Act.

(b) Unless otherwise permitted by this subpart, during a period of conditional admission, the importer of an engine may not:

(1) Operate the engine in the United States; or

(2) Sell or lease or offer the engine for sale or lease.

(c) An engine conditionally admitted pursuant to §94.804 and not otherwise permanently exempted or excluded by the end of the period of conditional admission, or within such additional time as the Administrator and the U.S. Customs Service may allow, is deemed to be unlawfully imported into the United States in violation of section 213(d) and section 203 of the Act, unless the engine has been delivered to the U.S. Customs Service for export or other disposition under applicable Customs laws and regulations by the end of the period of conditional admission. An engine not so delivered is subject to seizure by the U.S. Customs Service.

(d) An importer who violates section 213(d) and section 203 of the Act is subject to a civil penalty under section 205 of the Act and §94.1106. In addition to the penalty provided in the Act and §94.1106, where applicable, a person or entity who imports an engine under the exemption provisions of §94.804 and, who fails to deliver the engine to the U.S. Customs Service by the end of the period of conditional admission is liable for liquidated damages in the amount of the bond required by applicable Customs laws and regulations.

Subpart J—Exclusion and Exemption Provisions

§94.901   Purpose and applicability.

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.

The definitions of Subpart A of this part apply to this subpart.

§94.903   Exclusions.

(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.

(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. Engines may also be exempted from the standards of this part under the provisions of 40 CFR part 1042 or part 1068.

(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; 75 FR 22981, Apr. 30, 2010]

§94.905   Testing exemption.

(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.

(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.

(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.

(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.

(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.

(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.

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.

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.

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]

§94.914   Emergency vessel exemption.

(a) Except as specified in paragraph (c) of this section, the prohibitions in §94.1103(a)(1) do not apply to a new engine that is subject to Tier 2 standards according to the following provisions:

(1) The engine must be intended for installation in a lifeboat or a rescue boat as specified in 40 CFR 1042.625(a)(1)(i) or (ii).

(2) This exemption is available from the initial effective date for the Tier 2 standards until the engine model (or an engine of comparable size, weight, and performance) has been certified as complying with the Tier 2 standards and Coast Guard requirements. For example, this exemption would apply for new engine models that have not yet been certified to the Tier 2 standards.

(3) The engine must meet the Tier 1 emission standards specified in §94.8.

(b) If you introduce an engine into U.S. commerce under this section, you must meet the labeling requirements in §94.212, but add the following statement instead of the compliance statement in §94.212(b)(6):

THIS ENGINE DOES NOT COMPLY WITH CURRENT U.S. EPA EMISSION STANDARDS UNDER 40 CFR 94.914 AND IS FOR USE SOLELY IN LIFEBOATS OR RESCUE BOATS (COAST GUARD APPROVAL SERIES 160.135 OR 160.156). INSTALLATION OR USE OF THIS ENGINE IN ANY OTHER APPLICATION MAY BE A VIOLATION OF FEDERAL LAW SUBJECT TO CIVIL PENALTY.

(c) Introducing into commerce a vessel containing an engine exempted under this section violates the prohibitions in §94.1103(a)(1) where the vessel is not a lifeboat or rescue boat, unless it is exempt under a different provision. Similarly, using such an engine or vessel as something other than a lifeboat or rescue boat as specified in paragraph (a) of this section violates the prohibitions in §94.1103(a)(1), unless it is exempt under a different provision.

[73 FR 37197, June 30, 2008]

Subpart K—Requirements Applicable to Vessel Manufacturers, Owners, and Operators

Source: 68 FR 9787, Feb. 28, 2003, unless otherwise noted.

§94.1001   Applicability.

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.

The definitions of subpart A of this part apply to this subpart.

§94.1003   Production testing, in-use testing, and inspections.

(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.

(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

§94.1101   Applicability.

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.

The definitions of subpart A of this part apply to this subpart.

§94.1103   Prohibited acts.

(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.

(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.

§94.1105   Injunction proceedings for prohibited acts.

(a) The district courts of the United States have jurisdiction to restrain violations of §94.1103(a).

(b) Actions to restrain violations of §94.1103(a) must be brought by and in the name of the United States. In an action, subpoenas for witnesses who are required to attend a district court in any district may run into any other district.

§94.1106   Penalties.

This section specifies actions that are prohibited and the maximum civil penalties that we can assess for each violation. The maximum penalty values listed in paragraphs (a) and (c) of this section are shown for calendar year 2004. As described in paragraph (d) of this section, maximum penalty limits for later years are set forth in 40 CFR part 19.

(a) Violations. A violation of the requirements of this subpart is a violation of the applicable provisions of the Act, including sections 213(d) and 203, and is subject to the penalty provisions thereunder.

(1) A person who violates §94.1103(a)(1), (a)(4), (a)(5), (a)(6), or (a)(7)(iv) or a manufacturer or dealer who violates §94.1103(a)(3)(i) or (iii) or §94.1103(a)(7) is subject to a civil penalty of not more than $32,500 for each violation.

(2) A person other than a manufacturer or dealer who violates §94.1103(a)(3)(i) or (iii) or §94.1103(a)(7)(i), (ii), or (iii) or any person who violates §94.1103(a)(3)(ii) is subject to a civil penalty of not more than $2,750 for each violation.

(3) A violation with respect to §94.1103(a)(1), (a)(3)(i), (a)(3)(iii), (a)(4), or (a)(5), (a)(7) constitutes a separate offense with respect to each engine.

(4) A violation with respect to §94.1103(a)(3)(ii) constitutes a separate offense with respect to each part or component. Each day of a violation with respect to §94.1103(a)(5) or (a)(7)(iv) constitutes a separate offense.

(5) Each two hour period of a violation with respect to §94.1103(a)(7)(iii) constitutes a separate offense. A violation of §94.1103(a)(7)(iii) lasting less than two hours constitutes a single offense.

(b) Civil actions. The Administrator may commence a civil action to assess and recover any civil penalty under paragraph (a) of this section.

(1) An action under this paragraph (b) may be brought in the district court of the United States for the district in which the defendant resides or has the Administrator's principal place of business, and the court has jurisdiction to assess a civil penalty.

(2) In determining the amount of a civil penalty to be assessed under this paragraph (b), the court is to take into account the gravity of the violation, the economic benefit or savings (if any) resulting from the violation, the size of the violator's business, the violator's history of compliance with Title II of the Act, action taken to remedy the violation, the effect of the penalty on the violator's ability to continue in business, and such other matters as justice may require.

(3) In any such action, subpoenas for witnesses who are required to attend a district court in any district may run into any other district.

(c) Administrative assessment of certain penalties. (1) Administrative penalty authority. Subject to 42 U.S.C. 7524(c), in lieu of commencing a civil action under paragraph (b) of this section, the Administrator may assess any civil penalty prescribed in paragraph (a) of this section, except that the maximum amount of penalty sought against each violator in a penalty assessment proceeding shall not exceed $270,000, unless the Administrator and the Attorney General jointly determine that a matter involving a larger penalty amount is appropriate for administrative penalty assessment. Any such determination by the Administrator and the Attorney General is not subject to judicial review. Assessment of a civil penalty shall be by an order made on the record after opportunity for a hearing held in accordance with the procedures found at part 22 of this chapter. The Administrator may compromise, or remit, with or without conditions, any administrative penalty which may be imposed under this section.

(2) Determining amount. In determining the amount of any civil penalty assessed under this paragraph (c), the Administrator shall take into account the gravity of the violation, the economic benefit or savings (if any) resulting from the violation, the size of the violator's business, the violator's history of compliance with Title II of the Act, action taken to remedy the violation, the effect of the penalty on the violator's ability to continue in business, and such other matters as justice may require.

(3) Effect of administrator's action. (i) Action by the Administrator under this paragraph (c) does not affect or limit the Administrator's authority to enforce any provisions of the Act; except that any violation with respect to which the Administrator has commenced and is diligently prosecuting an action under this paragraph (c), or for which the Administrator has issued a final order not subject to further judicial review and for which the violator has paid a penalty assessment under this paragraph shall not be the subject of a civil penalty action under paragraph (b) of this section.

(ii) No action by the Administrator under this paragraph (c) shall affect a person's obligation to comply with a section of this part.

(4) Finality of order. An order issued under this paragraph (c) is to become final 30 days after its issuance unless a petition for judicial review is filed under paragraph (c)(5) of this section.

(5) Judicial review. A person against whom a civil penalty is assessed in accordance with this paragraph (c) may seek review of the assessment in the United States District Court for the District of Columbia or for the district in which the violation is alleged to have occurred, in which such person resides, or where the person's principal place of business is located, within the 30-day period beginning on the date a civil penalty order is issued. The person shall simultaneously send a copy of the filing by certified mail to the Administrator and the Attorney General. The Administrator shall file in the court within 30 days a certified copy, or certified index, as appropriate, of the record on which the order was issued. The court is not to set aside or remand any order issued in accordance with the requirements of this paragraph (c) unless substantial evidence does not exist in the record, taken as a whole, to support the finding of a violation or unless the Administrator's assessment of the penalty constitutes an abuse of discretion, and the court is not to impose additional civil penalties unless the Administrator's assessment of the penalty constitutes an abuse of discretion. In any proceedings, the United States may seek to recover civil penalties assessed under this section.

(6) Collection. (i) If any person fails to pay an assessment of a civil penalty imposed by the Administrator as provided in this part after the order making the assessment has become final or after a court in an action brought under paragraph (c)(5) of this section has entered a final judgment in favor of the Administrator, the Administrator shall request that the Attorney General bring a civil action in an appropriate district court to recover the amount assessed (plus interest at rates established pursuant to section 6621(a)(2) of the Internal Revenue Code of 1986 (26 U.S.C. 6621(a)(2)) from the date of the final order or the date of final judgment, as the case may be). In such an action, the validity, amount, and appropriateness of the penalty is not subject to review.

(ii) A person who fails to pay on a timely basis the amount of an assessment of a civil penalty as described in paragraph (c)(6)(i) of this section shall be required to pay, in addition to that amount and interest, the United States' enforcement expenses, including attorney's fees and costs for collection proceedings, and a quarterly nonpayment penalty for each quarter during which the failure to pay persists. The nonpayment penalty is an amount equal to ten percent of the aggregate amount of that person's penalties and nonpayment penalties which are unpaid as of the beginning of such quarter.

(d) The maximum penalty values listed in paragraphs (a) and (c) of this section are shown for calendar year 2004. Maximum penalty limits for later years may be adjusted based on the Consumer Price Index. The specific regulatory provisions for changing the maximum penalties, published in 40 CFR part 19, reference the applicable U.S. Code citation on which the prohibited action is based.

[64 FR 73331, Dec. 29, 1999, as amended at 68 FR 9789, Feb. 28, 2003; 70 FR 40462, July 13, 2005]

§94.1107   Warranty provisions.

(a) The manufacturer of each engine must warrant to the ultimate purchaser and each subsequent purchaser or owner that the engine is designed, built, and equipped so as to conform at the time of sale with applicable regulations under section 213 of the Act, and is free from defects in materials and workmanship which cause such engine to fail to conform with applicable regulations for its warranty period (as determined under §94.10).

(b) For the purposes of this section, the owner of any engine warranted under this part is responsible for the proper maintenance of the engine. Proper maintenance includes replacement and/or service, as needed, at the owner's expense at a service establishment or facility of the owner's choosing, of all parts, items, or devices which were in general use with engines prior to 1999. For diesel engines, this would generally include replacement or cleaning of the fuel delivery and injection system.

§94.1108   In-use compliance provisions.

(a) Effective with respect to engines subject to the requirements of this part:

(1) If the Administrator determines that a substantial number of any class or category of engines, although properly maintained and used, do not conform to the regulations prescribed under section 213 of the Act when in actual use throughout their useful life period (as defined under §94.2), the Administrator shall immediately notify the manufacturer of such nonconformity and require the manufacturer to submit a plan for remedying the nonconformity of the engines with respect to which such notification is given.

(i) The manufacturer's plan shall provide that the nonconformity of any such engines which are properly used and maintained will be remedied at the expense of the manufacturer.

(ii) If the manufacturer disagrees with such determination of nonconformity and so advises the Administrator, the Administrator shall afford the manufacturer and other interested persons an opportunity to present their views and evidence in support thereof at a public hearing. Unless, as a result of such hearing, the Administrator withdraws such determination of nonconformity, the Administrator shall, within 60 days after the completion of such hearing, order the manufacturer to provide prompt notification of such nonconformity in accordance with paragraph (a)(2) of this section.

(2) Any notification required to be given by the manufacturer under paragraph (a)(1) of this section with respect to any class or category of engines shall be given to ultimate purchasers, subsequent purchasers (if known), and dealers (as applicable) in such manner and containing such information as required in Subparts E and H of this part.

(3)(i) The certifying manufacturer shall furnish with each new engine written instructions for the proper maintenance and use of the engine by the ultimate purchaser as required under §94.211.

(ii) The instruction under paragraph (a)(3)(i) of this section must not include any condition on the ultimate purchaser's using, in connection with such engine, any component or service (other than a component or service provided without charge under the terms of the purchase agreement) which is identified by brand, trade, or corporate name. Such instructions also must not directly or indirectly distinguish between service performed by the franchised dealers of such manufacturer, or any other service establishments with which such manufacturer has a commercial relationship, and service performed by independent engine repair facilities with which such manufacturer has no commercial relationship.

(iii) The prohibition of paragraph (a)(3)(ii) of this section may be waived by the Administrator if:

(A) The manufacturer satisfies the Administrator that the engine will function properly only if the component or service so identified is used in connection with such engine; and

(B) The Administrator finds that such a waiver is in the public interest.

(iv) In addition, the manufacturer shall indicate by means of a label or tag permanently affixed to the engine that the engine is covered by a certificate of conformity issued for the purpose of assuring achievement of emission standards prescribed under section 213 of the Act. This label or tag shall also contain information relating to control of emissions as prescribed under §94.212.

(b) The manufacturer bears all cost obligation any dealer incurs as a result of a requirement imposed by paragraph (a) of this section. The transfer of any such cost obligation from a manufacturer to a dealer through franchise or other agreement is prohibited.

(c) If a manufacturer includes in an advertisement a statement respecting the cost or value of emission control devices or systems, the manufacturer shall set forth in the statement the cost or value attributed to these devices or systems by the Secretary of Labor (through the Bureau of Labor Statistics). The Secretary of Labor, and his or her representatives, has the same access for this purpose to the books, documents, papers, and records of a manufacturer as the Comptroller General has to those of a recipient of assistance for purposes of section 311 of the Act.

Appendix I to Part 94—Emission-Related Engine Parameters and Specifications

I. Basic Engine Parameters—Reciprocating Engines.

1. Compression ratio.

2. Type of air aspiration (natural, Roots blown, supercharged, turbocharged).

3. Valves (intake and exhaust).

a. Head diameter dimension.

b. Valve lifter or actuator type and valve lash dimension.

4. Camshaft timing.

a. Valve opening—intake exhaust (degrees from TDC or BDC).

b. Valve closing—intake exhaust (degrees from TDC or BDC).

c. Valve overlap (degrees).

5. Ports—two stroke engines (intake and/or exhaust).

a. Flow area.

b. Opening timing (degrees from TDC or BDC).

c. Closing timing (degrees from TDC or BDC).

II. Intake Air System.

1. Roots blower/supercharger/turbocharger calibration.

2. Charge air cooling.

a. Type (air-to-air; air-to-liquid).

b. Type of liquid cooling (engine coolant, dedicated cooling system).

c. Performance (charge air delivery temperature (°F) at rated power and one other power level under ambient conditions of 80 °F and 110 °F, and 3 minutes and 15 minutes after selecting rated power, and 3 minutes and 5 minutes after selecting other power level).

3. Temperature control system calibration.

4. Maximum allowable inlet air restriction.

III. Fuel System.

1. General.

a. Engine idle speed.

2. Fuel injection—compression ignition engines.

a. Control parameters and calibrations.

b. Transient enrichment system calibration.

c. Air-fuel flow calibration.

d. Altitude compensation system calibration.

e. Operating pressure(s).

f. Injector timing calibration.

IV. Engine Cooling System.

1. Thermostat calibration.

V. Exhaust System.

1. Maximum allowable back pressure.

VI. Exhaust Emission Control System.

1. Air injection system.

a. Control parameters and calibrations.

b. Pump flow rate.

2. EGR system.

a. Control parameters and calibrations.

b. EGR valve flow calibration.

3. Catalytic converter system.

a. Active surface area.

b. Volume of catalyst.

c. Conversion efficiency.

4. Backpressure.

VII. Crankcase Emission Control System.

1. Control parameters and calibrations.

2. Valve calibrations.

VIII. Auxiliary Emission Control Devices (AECD).

1. Control parameters and calibrations.

2. Component calibration(s).



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