[Code of Federal Regulations]
[Title 40, Volume 18]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR89.102]

[Page 46-48]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 89--CONTROL OF EMISSIONS FROM NEW AND IN-USE NONROAD COMPRESSION-IGNITION 
ENGINES--Table of Contents
 
       Subpart B--Emission Standards and Certification Provisions
 
Sec. 89.102  Effective dates, optional inclusion, flexibility for equipment 
manufacturers.

    (a) This subpart applies to all engines described in Sec. 89.101 
with the following power rating and manufactured after the following 
dates:
    (1) Less than 19 kW and manufactured on or after January 1, 2000;
    (2) Greater than or equal to 19 kW but less than 37 kW and 
manufactured on or after January 1, 1999;
    (3) Greater than or equal to 37 kW but less than 75 kW and 
manufactured on or after January 1, 1998;
    (4) Greater than or equal to 75 kW but less than 130 kW and 
manufactured on or after January 1, 1997;
    (5) Greater than or equal to 130 kW but less than or equal to 560 kW 
and manufactured on or after January 1, 1996;
    (6) Greater than 560 kW and manufactured on or after January 1, 
2000.
    (b) A manufacturer can optionally certify engines manufactured up to 
one calendar year prior to the effective date of mandatory certification 
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.
    (c) Engines meeting the voluntary standards described in 
Sec. 89.112(f) may be designated as Blue Sky Series engines through the 
2004 model year.
    (d) Implementation flexibility for equipment and vehicle 
manufacturers and post-manufacture marinizers. Nonroad equipment and 
vehicle manufacturers and post-manufacture marinizers may take any of 
the otherwise prohibited actions identified in Sec. 89.1003(a)(1) with 
respect to nonroad equipment and vehicles and marine diesel engines, 
subject to the requirements of paragraph (e) of this section. The 
following allowances apply separately to each engine power category 
subject to standards under Sec. 89.112:

[[Page 47]]

    (1) Percent-of-production allowances. (i) Equipment rated at or 
above 37 kW. For nonroad equipment and vehicles with engines rated at or 
above 37 kW, a manufacturer may take any of the actions identified in 
Sec. 89.1003(a)(1) for a portion of its U.S.-directed production volume 
of such equipment and vehicles during the seven years immediately 
following the date on which Tier 2 engine standards first apply to 
engines used in such equipment and vehicles, provided that the seven-
year sum of these portions in each year, as expressed as a percentage 
for each year, does not exceed 80, and provided that all such equipment 
and vehicles or equipment contain Tier 1 engines;
    (ii) Equipment rated under 37 kW. For nonroad equipment and vehicles 
and marine diesel engines with engines rated under 37 kW, a manufacturer 
may take any of the actions identified in Sec. 89.1003(a)(1) for a 
portion of its U.S.-directed production volume of such equipment and 
vehicles during the seven years immediately following the date on which 
Tier 1 engine standards first apply to engines used in such equipment 
and vehicles, provided that the seven-year sum of these portions in each 
year, as expressed as a percentage for each year, does not exceed 80.
    (2) Small volume allowances. A nonroad equipment or vehicle 
manufacturer or post-manufacture marinizer may exceed the production 
percentages in paragraph (d)(1) of this section, provided that in each 
regulated power category the manufacturer's total of excepted nonroad 
equipment and vehicles and marine diesel engines:
    (i) Over the years in which the percent-of-production allowance 
applies does not exceed 100 units times the number of years in which the 
percent-of-production allowance applies; and
    (ii) Does not exceed 200 units in any year; and
    (iii) Does not use engines from more than one engine family, or, for 
excepted equipment vehicles, and marine diesel engines using engines not 
belonging to any engine family, from more than one engine manufacturer.
    (3) Inclusion of previous-tier engines. Nonroad equipment and 
vehicles and marine diesel engines built with previous tier or 
noncertified engines under the existing inventory provisions of 
Sec. 89.1003(b)(4) need not be included in determining compliance with 
paragraphs (d)(1) and (d)(2) of this section.
    (e) Recordkeeping and calculation to verify compliance. The 
following shall apply to nonroad equipment or vehicle manufacturers and 
post-manufacture marinizers who produce excepted equipment or vehicles 
or marine diesel engines under the provisions of paragraph (d) of this 
section:
    (1) For each power category in which excepted nonroad equipment or 
vehicles or marine diesel engines are produced, a calculation to verify 
compliance with the requirements of paragraph (d) of this section shall 
be made by the nonroad equipment or vehicle manufacturer or post-
manufacture marinizer. This calculation shall be made no later than 
December 31 of the year following the last year in which allowances are 
used, and shall be based on actual production information from the 
subject years. If both the percent-of-production and small volume 
allowances have been exceeded, then the manufacturer is in violation of 
section 203 of the Act and Sec. 89.1003, except as provided under 
paragraphs (f) and (h) of this section.
    (2) A nonroad equipment or vehicle manufacturer or post-manufacture 
marinizer shall keep records of all nonroad equipment and vehicles and 
marine diesel engines excepted under the provisions of paragraph (d) of 
this section, for each power category in which exceptions are taken. 
These records shall include equipment and engine model numbers, serial 
numbers, and dates of manufacture, and engine rated power. In addition, 
the manufacturer shall keep records sufficient to demonstrate the 
verifications of compliance required in paragraph (e)(1) of this 
section. All records shall be kept until at least two full years after 
the final year in which allowances are available for each power 
category, and shall be made available to EPA upon request.
    (f) Hardship relief. Nonroad equipment and vehicle manufacturers and 
post-manufacture marinizers may take any of the otherwise prohibited 
actions identified in Sec. 89.1003(a)(1) if approved

[[Page 48]]

by the Administrator, and subject to the following requirements:
    (1) Application for relief must be submitted to the Engine Programs 
and Compliance Division of the EPA in writing prior to the earliest date 
in which the applying manufacturer would be in violation of 
Sec. 89.1003. The manufacturer must submit evidence showing that the 
requirements for approval have been met.
    (2) The applying manufacturer must not be the manufacturer of the 
engines used in the equipment for which relief is sought. This 
requirement does not apply to post-manufacture marinizers.
    (3) The conditions causing the impending violation must not be 
substantially the fault of the applying manufacturer.
    (4) The conditions causing the impending violation must be such that 
the applying manufacturer will experience serious economic hardship if 
relief is not granted.
    (5) The applying manufacturer must demonstrate that no allowances 
under paragraph (d) of this section will be available to avoid the 
impending violation.
    (6) Any relief granted must begin within one year after the 
implementation date of the standard applying to the engines being used 
in the equipment, or to the marine diesel engines, for which relief is 
requested, and may not exceed one year in duration.
    (7) The Administrator may impose other conditions on the granting of 
relief including provisions to recover the lost environmental benefit.
    (g) Allowance for the production of engines. Engine manufacturers 
may take any of the otherwise prohibited actions identified in 
Sec. 89.1003(a)(1) with regard to uncertified engines or Tier 1 engines, 
as appropriate, if the engine manufacturer has received written 
assurance from the equipment manufacturer that the engine is required to 
meet the demand for engines created under paragraph (d), (f), or (h) of 
this section.
    (h) Alternative Flexibility for Post-Manufacture Marinizers. Post-
manufacture marinizers may elect to delay the effective date of the Tier 
1 standards in Sec. 89.112 for marine diesel engines rated under 37 kW 
by one year, instead of using the provisions of paragraphs (d) and (f) 
of this section. Post-manufacture marinizers wishing to take advantage 
of this provision must inform the Director of the Engine Programs and 
Compliance Division of their intent to do so in writing before the date 
that the standards would otherwise take effect.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56995, 
56997, Oct. 23, 1998]