Subpart A - Applicability and Miscellaneous Provisions

§1068.1 Does this part apply to me?

(a) The provisions of this part apply to everyone with respect to the engine and equipment categories as described in this paragraph (a). The provisions of this part apply to everyone, including owners, operators, parts manufacturers, and persons performing maintenance. Where we identify an engine category, the provisions of this part also apply with respect to the equipment using such engines. This part applies to different engine and equipment categories as follows:

(1) This part applies to motor vehicles we regulate under 40 CFR part 86, subpart S, to the extent and in the manner specified in 40 CFR parts 85 and 86.

§1068.2 How does this part apply for engines and how does it apply for equipment?

(a) See the standard-setting part to determine if engine-based and/or equipment-based standards apply. (Note: Some equipment is subject to engine-based standards for exhaust emission and equipment-based standards for evaporative emissions.)

(b) The provisions of this part apply differently depending on whether the engine or equipment is required to be certified.

(1) Subpart A and subpart B of this part apply to engines and equipment, without regard to which is subject to certification requirements in the standard-setting part.

(2) Subparts C, D, and E of this part apply to the engines or to the equipment, whichever is subject to certification requirements in the standard-setting part.

(3) Subpart F of this part generally applies to the engines or to the equipment, whichever is subject to standards under the standard-setting part. However, since subpart F of this part addresses in-use engines and equipment (in which the engine is installed in the equipment), the requirements do not always distinguish between engines and equipment.

(c) For issues related to testing, read the term “engines/equipment” to mean engines for engines subject to engine-based testing and equipment for equipment subject to equipment-based testing; otherwise, read the term “engines/equipment” to mean engines for sources subject to engine-based standards and equipment for sources subject to equipment-based standards.

(d) When we use the term engines (rather than engines/equipment), read it to mean engines without regard to whether the source is subject to engine-based standards or testing. When we use the term equipment (rather than engines/equipment), read it to mean equipment without regard to whether the source is subject to equipment-based standards or testing. (Note: The definition of “equipment” in §1068.30 includes the engine.)

(e) The terminology convention described in this section is not intended to limit our authority or your obligations under the Clean Air Act.

§1068.5 How must manufacturers apply good engineering judgment?

(a) You must use good engineering judgment for decisions related to any requirements under this chapter. This includes your applications for certification, any testing you do to show that your certification, production-line, and in-use engines/equipment comply with requirements that apply to them, and how you select, categorize, determine, and apply these requirements.

(b) If we send you a written request, you must give us a written description of the engineering judgment in question. Respond within 15 working days of receiving our request unless we allow more time.

(c) We may reject your decision if it is not based on good engineering judgment or is otherwise inconsistent with the requirements that apply, based on the following provisions:

(1) We may suspend, revoke, or void a certificate of conformity if we determine you deliberately used incorrect information or overlooked important information, that you did not decide in good faith, or that your decision was not rational.

(2) If we believe a different decision would better reflect good engineering judgment, but none of the provisions of paragraph (c)(1) of this section apply, we will tell you of our concern (and its basis). You will have 30 days to respond to our concerns, or more time if we agree that you need it to generate more information. After considering your information, we will give you a final ruling. If we conclude that you did not use good engineering judgment, we may reject your decision and apply the new ruling to similar situations as soon as possible.

(d) We will tell you in writing of the conclusions we reach under paragraph (c) of this section and explain our reasons for them.

(e) If you disagree with our conclusions, you may file a request for a hearing with the Designated Compliance Officer as described in subpart G of this part. In your request, specify your objections, include data or supporting analysis, and get your authorized representative's signature. If we agree that your request raises a substantial factual issue, we will hold the hearing according to subpart F of this part.

§1068.10 Practices for handling confidential business information.

The provisions of this section apply both to any information you send us and to any information we collect from inspections, audits, or other site visits.

(a) When you submit information to us, if you claim any of that information as confidential, you may identify what you claim to be confidential by marking, circling, bracketing, stamping, or some other method; however, we will not consider any claims of confidentiality over information we have determined to be not entitled to confidential treatment under §1068.11 or other applicable provisions.

(b) If you send us information without claiming it is confidential, we may make it available to the public without further notice to you, as described in 40 CFR 2.301(j).

(c) For submissions that include information that may be entitled to confidential treatment, we may require that you send a “public” copy of the report that does not include the confidential information. We may require that you substantiate your claim to confidential treatment for any items not contained in the public version. We will release additional information from the complete version of such a submission only as allowed under 40 CFR 2.301(j) and as described in this subpart and the standard-setting part.

(d) We will safeguard your confidential business information (CBI) as described in 40 CFR 2.301(j). Also, we will treat certain information as confidential and will only disclose this information if it has been determined to be not entitled to confidential treatment as specified in §1068.11(c). The following general provisions describe how we will process requests for making information publicly available:

(1) Certification information. We will treat information submitted in an application for certification as confidential until the introduction-into-commerce date you identify in your application for certification consistent with 40 CFR 2.301(a)(2)(ii)(B). If you do not identify an introduction-into-commerce date or if we issue the certificate after your specified date, we will treat information submitted in an application for certification as described in §1068.11 after the date we issue the certificate.

(2) Preliminary and superseded information. Preliminary and superseded versions of information you submit are covered by confidentiality determinations in the same manner as final documents. However, we will generally not disclose preliminary or superseded information unless we receive a request under 5 U.S.C. 552 that specifically asks for all versions of a document, including preliminary and superseded versions. We will consider a document preliminary if we have not reviewed it to verify its accuracy or if the reporting deadline has not yet passed. We will consider information superseded if you submit a new document or a revised application for certification to replace the earlier version.

(3) Authorizing CBI disclosure. The provisions of this section do not prevent us from disclosing protected information if you specifically authorize it.

(4) Relationship to the standard-setting part. The standard-setting part may identify additional provisions related to confidentiality determinations. Note that the standard-setting part identifies information requirements that apply for each type of engine/equipment. If this section identifies information that is not required for a given engine, that does not create a requirement to submit the information.

(5) Changes in law. The confidentiality determinations in this section and in the standard-setting parts may be changed through the processes described in 40 CFR 2.301(j)(4).

[86 FR 34589, Jun. 29, 2021; 88 FR 4712, Jan. 24, 2023]

§1068.11 Confidentiality determinations and related procedures.

This section characterizes various categories of information for purposes of making confidentiality determinations, as follows:

(a) This paragraph (a) applies the definition of “Emission data” in 40 CFR 2.301(a) for information related to engines/equipment subject to this part. “Emission data” cannot be treated as confidential business information and shall be available to be disclosed to the public except as specified in §1068.10(d)(1). The following categories of information qualify as emission data, except as specified in paragraph (c) of this section:

(1) Certification and compliance information, including information submitted in an application for a certificate of conformity that is used to assess compliance.

(2) Fleet value information, including information submitted for compliance with fleet average emission standards and emissions related ABT credit information, including the information used to generate credits.

(3) Source family information. For example, engine family information or test group information would identify the regulated emission source.

(4) Test information and results, including emission test results and other data from emission testing that are submitted in an application for a certificate of conformity, test results from in-use testing, production-line testing, and any other testing to demonstrate emissions. The information in this category includes all related information to characterize test results, document the measurement procedure, and modeling inputs and outputs where the compliance demonstration is based on computer modeling.

(5) ABT credit information, including information submitted for current and future compliance demonstrations using credits under an ABT program.

(6) Production volume, including information submitted for compliance with fleet average emission standards, compliance with requirements to test production engines/equipment, or compliance through ABT programs.

(7) Defect and recall information, including all information submitted in relation to a defect or recall except the remedial steps you identify in §1068.510(a)(2).

(8) Selective enforcement audit compliance information.

(b) The following categories of information are not eligible for confidential treatment, except as specified in §1068.10(d)(1):

(1) Published information, including information that is made available in annual and quarterly filings submitted to the U.S. Securities and Exchanges Commission, on company websites, or otherwise made publicly available by the information submitter.

(2) Observable information available to the public after the introduction to commerce date.

(c) The following categories of information are subject to the process for confidentiality determinations in 40 CFR part 2 as described in 40 CFR 2.301(j)(5):

(1) Projected sales volume and projected production volume.

(2) Production start and end dates.

(3) Detailed description of emission control operation and function.

(4) Design specifications related to aftertreatment devices.

(5) Description of auxiliary emission control devices (AECDs).

(6) Plans for meeting regulatory requirements. For example, this applies for any projections of emission credits for the coming model year or determinations of the number of required repair facilities that are based on projected production volumes.

(7) The following information related to deterioration factors and other adjustment factors:

(i) Procedures to determine deterioration factors and other emission adjustment factors.

(ii) Any information used to justify those procedures.

(iii) Emission measurements you use to compare procedures or demonstrate that the procedures are appropriate.

(8) Financial information related to the following items:

(i) ABT credit transactions, including dollar amount, identity of parties, and contract information.

(ii) Meeting bond requirements, including aggregate U.S. asset holdings, financial details regarding specific assets, whether the manufacturer or importer obtains a bond, and copies of bond policies.

(9) Serial numbers or other information to identify specific engines or equipment selected for testing.

(10) Procedures that apply based on your request to test engines/equipment differently than we specify in the regulation. This applies for special and alternative test procedures. This also applies, for example, if we approve a broader or narrower zone of engine operation for not-to-exceed testing.

(11) Information related to testing vanadium catalysts in 40 CFR part 1065, subpart L.

(12) GPS data identifying the location for in-use emission measurements.

(13) Information related to possible defects that are subject to further investigation (not confirmed defects).

(14) Information submitted in support of a requested exemption.

(d) If you submit information that is not addressed in paragraphs (a) through (c) of this section, you may claim the information as confidential. We may require you to provide us with information to substantiate your claims. If claimed, we may consider this substantiating information to be confidential to the same degree as the information for which you are requesting confidential treatment. We will make our determination based on your statements to us, the supporting information you send us, and any other available information. However, we may determine that your information is not subject to confidential treatment consistent with 40 CFR part 2 and 5 U.S.C. 552(b)(4).

(e) Applications for certification and submitted reports typically rely on software or templates to identify specific categories of information. If you submit information in a comment field designated for users to add general information, we will respond to requests for disclosing that information consistent with paragraphs (a) through (d) of this section.

[88 FR 4713, Jan. 24, 2023]

§1068.15 General provisions for EPA decision-making.

(a) Not all EPA employees may represent the Agency with respect to EPA decisions under this part or the standard-setting part. Only the Administrator of the Environmental Protection Agency or an official to whom the Administrator has delegated specific authority may represent the Agency. For more information, ask for a copy of the relevant sections of the EPA Delegations Manual from the Designated Compliance Officer.

(b) The regulations in this part and in the standard-setting part have specific requirements describing how to get EPA approval before you take specific actions. These regulations also allow us to waive some specific requirements. For provisions or flexibilities that we address frequently, we may choose to provide detailed guidance in supplemental compliance instructions for manufacturers. Such instructions will generally state how they relate to the need for pre-approval. Unless we explicitly state so, you should not consider full compliance with the instructions to be equivalent to EPA approval.

[73 FR 59344, Oct. 8, 2008, as amended at 81 FR 74217, Oct. 25, 2016]

§1068.20 May EPA enter my facilities for inspections?

(a) We may inspect your testing, manufacturing processes, storage facilities (including port facilities for imported engines and equipment or other relevant facilities), or records, as authorized by the Clean Air Act, to enforce the provisions of this chapter. Inspectors will have authorizing credentials and will limit inspections to reasonable times - usually, normal operating hours.

(b) We may select any facility to do any of the following:

(1) Inspect and monitor any aspect of engine or equipment manufacturing, assembly, storage, or other procedures, and any facilities where you do them.

(2) Inspect and monitor any aspect of engine or equipment test procedures or test-related activities, including test engine/equipment selection, preparation, service accumulation, emission duty cycles, and maintenance and verification of your test equipment's calibration.

(3) Inspect and copy records or documents related to assembling, storing, selecting, and testing an engine or piece of equipment.

(4) Inspect and photograph any part or aspect of engines or equipment and components you use for assembly.

(c) You must give us reasonable help without charge during an inspection authorized by the Clean Air Act. For example, you may need to help us arrange an inspection with the facility's managers, including clerical support, copying, and translation. You may also need to show us how the facility operates and answer other questions. If we ask in writing to see a particular employee at the inspection, you must ensure that he or she is present (legal counsel may accompany the employee).

(d) If you have facilities in other countries, we expect you to locate them in places where local law does not keep us from inspecting as described in this section. We will not try to inspect if we learn that local law prohibits it, but we may suspend your certificate if we are not allowed to inspect.

[73 FR 59344, Oct. 8, 2008, as amended at 81 FR 74217, Oct. 25, 2016]

§1068.25 What information must I give to EPA?

If you are subject to the requirements of this part, we may require you to give us information to evaluate your compliance with any regulations that apply, as authorized by the Clean Air Act. This includes the following things:

(a) You must provide the information we require in this chapter. We may require an authorized representative of your company to approve and sign any submission of information to us, and to certify that the information is accurate and complete.

(b) You must establish and maintain records, perform tests, make reports and provide additional information that we may reasonably require under section 208 of the Clean Air Act (42 U.S.C. 7542). This also applies to engines/equipment we exempt from emission standards or prohibited acts. Unless we specify otherwise, you must keep required records for eight years.

(c) You are responsible for statements and information in your applications for certification or any other requests or reports. If you provide statements or information to someone for submission to EPA, you are responsible for these statements and information as if you had submitted them to EPA yourself. For example, knowingly submitting false information to someone else for inclusion in an application for certification would be deemed to be a submission of false information to the U.S. government in violation of 18 U.S.C. 1001.

[73 FR 59344, Oct. 8, 2008, as amended at 75 FR 23058, Apr. 30, 2010]

§1068.27 May EPA conduct testing with my engines/equipment?

(a) As described in the standard-setting part, we may perform testing on your engines/equipment before we issue a certificate of conformity. This is generally known as confirmatory testing.

(b) If we request it, you must make a reasonable number of production-line engines or pieces of production-line equipment available for a reasonable time so we can test or inspect them for compliance with the requirements of this chapter.

(c) If your emission-data engine/equipment or production engine/equipment requires special components for proper testing, you must promptly provide any such components to us if we ask for them.

[81 FR 74217, Oct. 25, 2016]

§1068.30 Definitions.

The following definitions apply to this part. The definitions apply to all subparts unless we note otherwise. All undefined terms have the meaning the Clean Air Act gives to them. The definitions follow:

Affiliated companies or affiliates means one of the following:

(1) For determinations related to small manufacturer allowances or other small business provisions, these terms mean all entities considered to be affiliates with your entity under the Small Business Administration's regulations in 13 CFR 121.103.

(2) For all other provisions, these terms mean all of the following:

(i) Parent companies (as defined in this section).

(ii) Subsidiaries (as defined in this section).

(iii) Subsidiaries of your parent company.

Aftertreatment means relating to a catalytic converter, particulate filter, or any other system, component, or technology mounted downstream of the exhaust valve (or exhaust port) whose design function is to reduce emissions in the engine exhaust before it is exhausted to the environment. Exhaust gas recirculation (EGR) is not aftertreatment.

Aircraft means any vehicle capable of sustained air travel more than 100 feet above the ground.

Certificate holder means a manufacturer (including importers) with a valid certificate of conformity for at least one family in a given model year, or the preceding model year. Note that only manufacturers may hold certificates. Your applying for or accepting a certificate is deemed to be your agreement that you are a manufacturer.

Clean Air Act means the Clean Air Act, as amended, 42 U.S.C. 7401- 7671q.

Critical emission-related component means a part or system whose primary purpose is to reduce emissions or whose failure would commonly increase emissions without significantly degrading engine/equipment performance.

Date of manufacture means one of the following:

(1) For engines, the date on which the crankshaft is installed in an engine block, with the following exceptions:

(i) For engines produced by secondary engine manufacturers under §1068.262, date of manufacture means the date the engine is received from the original engine manufacturer. You may assign an earlier date up to 30 days before you received the engine, but not before the crankshaft was installed. You may not assign an earlier date if you cannot demonstrate the date the crankshaft was installed.

(ii) Manufacturers may assign a date of manufacture at a point in the assembly process later than the date otherwise specified under this definition. For example, a manufacturer may use the build date printed on the label or stamped on the engine as the date of manufacture.

(2) For equipment, the date on which the engine is installed, unless otherwise specified in the standard-setting part. Manufacturers may alternatively assign a date of manufacture later in the assembly process.

Days means calendar days, including weekends and holidays.

Defeat device has the meaning given in the standard-setting part.

Designated Compliance Officer means one of the following:

(1) For motor vehicles regulated under 40 CFR part 86, subpart S: Director, Light-Duty Vehicle Center, U.S. Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105; complianceinfo@epa.gov ; www.epa.gov/ve-certification .

(2) For compression-ignition engines used in heavy-duty highway vehicles regulated under 40 CFR part 86, subpart A, and 40 CFR parts 1036 and 1037, and for nonroad and stationary compression-ignition engines or equipment regulated under 40 CFR parts 60, 1033, 1039, and 1042: Director, Diesel Engine Compliance Center, U.S. Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105; complianceinfo@epa.gov ; www.epa.gov/ve-certification .

(3) Director, Gasoline Engine Compliance Center, U.S. Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105; complianceinfo@epa.gov ; www.epa.gov/ve-certification , for all the following engines and vehicles:

(i) For spark-ignition engines used in heavy-duty highway vehicles regulated under 40 CFR part 86, subpart A, and 40 CFR parts 1036 and 1037,

(ii) For highway motorcycles regulated under 40 CFR part 86, subpart E.

(iii) For nonroad and stationary spark-ignition engines or equipment regulated under 40 CFR parts 60, 1045, 1048, 1051, 1054, and 1060.

Engine means an engine block with an installed crankshaft, or a gas turbine engine. The term engine does not include engine blocks without an installed crankshaft, nor does it include any assembly of reciprocating engine components that does not include the engine block. (Note: For purposes of this definition, any component that is the primary means of converting an engine's energy into usable work is considered a crankshaft, whether or not it is known commercially as a crankshaft.) This includes complete and partially complete engines as follows:

(1) A complete engine is a fully assembled engine in its final configuration. In the case of equipment-based standards, an engine is not considered complete until it is installed in the equipment, even if the engine itself is fully assembled.

(2) A partially complete engine is an engine that is not fully assembled or is not in its final configuration. Except where we specify otherwise in this part or the standard-setting part, partially complete engines are subject to the same standards and requirements as complete engines. The following would be considered examples of partially complete engines:

(i) An engine that is missing certain emission-related components.

(ii) A new engine that was originally assembled as a motor-vehicle engine that will be recalibrated for use as a nonroad engine.

(iii) A new engine that was originally assembled as a land-based engine that will be modified for use as a marine propulsion engine.

(iv) A short block consisting of a crankshaft and other engine components connected to the engine block, but missing the head assembly.

(v) A long block consisting of all engine components except the fuel system and an intake manifold.

(vi) In the case of equipment-based standards, a fully functioning engine that is not yet installed in the equipment. For example, a fully functioning engine that will be installed in an off-highway motorcycle or a locomotive is considered partially complete until it is installed in the equipment.

Engine-based standard means an emission standard expressed in units of grams of pollutant per kilowatt-hour (or grams of pollutant per horsepower-hour) that applies to the engine. Emission standards are either engine-based or equipment-based. Note that engines may be subject to additional standards such as smoke standards.

Engine-based test means an emission test intended to measure emissions in units of grams of pollutant per kilowatt-hour (or grams of pollutant per horsepower-hour), without regard to whether the standard applies to the engine or equipment. Note that some products that are subject to engine-based testing are subject to additional test requirements such as for smoke.

Engine configuration means a unique combination of engine hardware and calibration within an engine family. Engines within a single engine configuration differ only with respect to normal production variability or factors unrelated to emissions.

Engine/equipment and engines/equipment mean engine(s) and/or equipment depending on the context. Specifically these terms mean the following:

(1) Engine(s) when only engine-based standards apply.

(2) Engine(s) for testing issues when engine-based testing applies.

(3) Engine(s) and equipment when both engine-based and equipment-based standards apply.

(4) Equipment when only equipment-based standards apply.

(5) Equipment for testing issues when equipment-based testing applies.

Equipment means one of the following things:

(1) Any vehicle, vessel, or other type of equipment that is subject to the requirements of this part or that uses an engine that is subject to the requirements of this part. An installed engine is part of the equipment. Motor vehicle trailers are a type of equipment that is subject to the requirements of this part.

(2) Fuel-system components that are subject to an equipment-based standard under this chapter. Installed fuel-system components are also considered part of the engine/equipment to which they are attached.

Equipment-based standard means an emission standard that applies to the equipment in which an engine is used or to fuel-system components associated with an engine, without regard to how the emissions are measured. If equipment-based standards apply, we require that the equipment or fuel-system components be certified rather than just the engine. Emission standards are either engine-based or equipment-based. For example, recreational vehicles we regulate under 40 CFR part 1051 are subject to equipment-based standards even if emission measurements are based on engine operation alone.

Excluded means relating to engines/equipment that are not subject to emission standards or other requirements because they do not meet the definitions or other regulatory provisions that define applicability. For example, a non-stationary engine that is used solely for off-highway competition is excluded from the requirements of this part because it meets neither the definition of “motor vehicle engine” nor “nonroad engine” under section 216 of the Clean Air Act.

Exempted means relating to engines/equipment that are subject to certain standards or other requirements, but are not required to meet those standards or requirements, subject to one or more qualifying conditions. Exempted engines/equipment must conform to regulatory conditions specified for an exemption in this part 1068 or in the standard-setting part. Engines/equipment exempted with respect to a certain tier of standards may be required to comply with an earlier tier of standards as a condition of the exemption; for example, engines exempted with respect to Tier 3 standards may be required to comply with Tier 1 or Tier 2 standards.

Family means engine family or emission family, as applicable, under the standard-setting part.

Final deteriorated test result has the meaning given in the standard-setting part. If it is not defined in the standard-setting part, it means the emission level that results from applying all appropriate adjustments (such as deterioration factors) to the measured emission result of the emission-data engine.

Gas turbine engine means anything commercially known as a gas turbine engine or any collection of assembled engine components that is substantially similar to engines commercially known as gas turbine engines. For example, a jet engine is a gas turbine engine. Gas turbine engines may be complete or partially complete. Turbines that rely on external combustion such as steam engines are not gas turbine engines.

Good engineering judgment means judgments made consistent with generally accepted scientific and engineering principles and all available relevant information. See §1068.5.

Manufacturer has the meaning given in section 216(1) of the Clean Air Act (42 U.S.C. 7550(1)). In general, this term includes any person who manufactures or assembles an engine or piece of equipment for sale in the United States or otherwise introduces a new engine or piece of equipment into U.S. commerce. This includes importers that import new engines or new equipment into the United States for resale. It also includes secondary engine manufacturers.

Model year has the meaning given in the standard-setting part. Unless the standard-setting part specifies otherwise, model year for individual engines/equipment is based on the date of manufacture or a later stage in the assembly process determined by the manufacturer, subject to the limitations described in §§1068.103 and 1068.360. The model year of a new engine that is neither certified nor exempt is deemed to be the calendar year in which it is sold, offered for sale, imported, or delivered or otherwise introduced into U.S. commerce.

Motor vehicle has the meaning given in 40 CFR 85.1703.

New has the meaning we give it in the standard-setting part. Note that in certain cases, used and remanufactured engines/equipment may be “new” engines/equipment.

Nonroad engine means:

(1) Except as discussed in paragraph (2) of this definition, a nonroad engine is an internal combustion engine that meets any of the following criteria:

(i) It is (or will be) used in or on a piece of equipment that is self-propelled or serves a dual purpose by both propelling itself and performing another function (such as garden tractors, off-highway mobile cranes and bulldozers).

(ii) It is (or will be) used in or on a piece of equipment that is intended to be propelled while performing its function (such as lawnmowers and string trimmers).

(iii) By itself or in or on a piece of equipment, it is portable or transportable, meaning designed to be and capable of being carried or moved from one location to another. Indicia of transportability include, but are not limited to, wheels, skids, carrying handles, dolly, trailer, or platform.

(2) An internal combustion engine is not a nonroad engine if it meets any of the following criteria:

(i) The engine is used to propel a motor vehicle, an aircraft, or equipment used solely for competition.

(ii) The engine is regulated under 40 CFR part 60, (or otherwise regulated by a federal New Source Performance Standard promulgated under section 111 of the Clean Air Act (42 U.S.C. 7411)). Note that this criterion does not apply for engines meeting any of the criteria of paragraph (1) of this definition that are voluntarily certified under 40 CFR part 60.

(iii) The engine otherwise included in paragraph (1)(iii) of this definition remains or will remain at a location for more than 12 consecutive months or a shorter period of time for an engine located at a seasonal source. A location is any single site at a building, structure, facility, or installation. For any engine (or engines) that replaces an engine at a location and that is intended to perform the same or similar function as the engine replaced, include the time period of both engines in calculating the consecutive time period. An engine located at a seasonal source is an engine that remains at a seasonal source during the full annual operating period of the seasonal source. A seasonal source is a stationary source that remains in a single location on a permanent basis (i.e., at least two years) and that operates at that single location approximately three months (or more) each year. See §1068.31 for provisions that apply if the engine is removed from the location.

Operating hours means:

(1) For engine and equipment storage areas or facilities, times during which people other than custodians and security personnel are at work near, and can access, a storage area or facility.

(2) For other areas or facilities, times during which an assembly line operates or any of the following activities occurs:

(i) Testing, maintenance, or service accumulation.

(ii) Production or compilation of records.

(iii) Certification testing.

(iv) Translation of designs from the test stage to the production stage.

(v) Engine or equipment manufacture or assembly.

Parent company means any entity that has a controlling ownership of another company. Note that the standard-setting part may treat a partial owner as a parent company even if it does not have controlling ownership of a company.

Piece of equipment means any vehicle, vessel, locomotive, aircraft, or other type of equipment equipped with engines to which this part applies.

Placed into service means used for its intended purpose. Engines/equipment do not qualify as being “placed into service” based on incidental use by a manufacturer or dealer.

Reasonable technical basis means information that would lead a person familiar with engine design and function to reasonably believe a conclusion related to compliance with the requirements of this part. For example, it would be reasonable to believe that parts performing the same function as the original parts (and to the same degree) would control emissions to the same degree as the original parts. Note that what is a reasonable basis for a person without technical training might not qualify as a reasonable technical basis.

Relating to as used in this section means relating to something in a specific, direct manner. This expression is used in this section only to define terms as adjectives and not to broaden the meaning of the terms. Note that “relating to” is used in the same manner as in the standard-setting parts.

Replacement engine means an engine exempted as a replacement engine under §1068.240.

Revoke means to terminate the certificate or an exemption for a family. If we revoke a certificate or exemption, you must apply for a new certificate or exemption before continuing to introduce the affected engines/equipment into U.S. commerce. This does not apply to engines/equipment you no longer possess.

Secondary engine manufacturer means anyone who produces a new engine by modifying a complete or partially complete engine that was made by a different company. For the purpose of this definition, “modifying” does not include making changes that do not remove an engine from its original certified configuration. Secondary engine manufacturing includes, for example, converting automotive engines for use in industrial applications, or land-based engines for use in marine applications. This applies whether it involves a complete or partially complete engine and whether the engine was previously certified to emission standards or not.

(1) Manufacturers controlled by the manufacturer of the base engine (or by an entity that also controls the manufacturer of the base engine) are not secondary engine manufacturers; rather, both entities are considered to be one manufacturer for purposes of this part.

(2) This definition applies equally to equipment manufacturers that modify engines. Also, equipment manufacturers that certify to equipment-based standards using engines produced by another company are deemed to be secondary engine manufacturers.

(3) Except as specified in paragraph (2) of this definition, companies importing complete engines into the United States are not secondary engine manufacturers regardless of the procedures and relationships between companies for assembling the engines.

Small business means either of the following:

(1) A company that qualifies under the standard-setting part for special provisions for small businesses or small-volume manufacturers.

(2) A company that qualifies as a small business under the regulations adopted by the Small Business Administration at 13 CFR 121.201 if the standard-setting part does not establish such qualifying criteria.

Standard-setting part means a part in the Code of Federal Regulations that defines emission standards for a particular engine and/or piece of equipment (see §1068.1(a)). For example, the standard-setting part for marine spark-ignition engines is 40 CFR part 1045. For provisions related to evaporative emissions, the standard-setting part may be 40 CFR part 1060, as specified in 40 CFR 1060.1.

Subsidiary means an entity that is owned or controlled by a parent company.

Sulfur-sensitive technology means an emission control technology that experiences a significant drop in emission control performance or emission-system durability when an engine is operated on low-sulfur diesel fuel (i.e., fuel with a sulfur concentration of 300 to 500 ppm) as compared to when it is operated on ultra low-sulfur diesel fuel (i.e., fuel with a sulfur concentration less than 15 ppm). Exhaust gas recirculation is not a sulfur-sensitive technology.

Suspend means to temporarily discontinue the certificate or an exemption for a family. If we suspend a certificate, you may not sell, offer for sale, or introduce or deliver into commerce in the United States or import into the United States engines/equipment from that family unless we reinstate the certificate or approve a new one. This also applies if we suspend an exemption, unless we reinstate the exemption.

Ultimate purchaser means the first person who in good faith purchases a new engine or new piece of equipment for purposes other than resale.

United States, in a geographic sense, 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 has the meaning given in the standard-setting part.

Void means to invalidate a certificate or an exemption ab initio (“from the beginning”). If we void a certificate, all the engines/equipment introduced into U.S. commerce under that family for that model year are considered uncertified (or nonconforming) and are therefore not covered by a certificate of conformity, and you are liable for all engines/equipment introduced into U.S. commerce under the certificate and may face civil or criminal penalties or both. This applies equally to all engines/equipment in the family, including engines/equipment introduced into U.S. commerce before we voided the certificate. If we void an exemption, all the engines/equipment introduced into U.S. commerce under that exemption are considered uncertified (or nonconforming), and you are liable for engines/equipment introduced into U.S. commerce under the exemption and may face civil or criminal penalties or both. You may not sell, offer for sale, or introduce or deliver into commerce in the United States or import into the United States any additional engines/equipment using the voided exemption.

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 engine owners have been notified.

We (us, our) means the Administrator of the Environmental Protection Agency and any authorized representatives.

[81 FR 74218, Oct. 25, 2016; 88 FR 4714, Jan. 24, 2023]

§1068.31 Changing the status of nonroad or stationary engines under the definition of “nonroad engine”.

This section specifies the provisions that apply when an engine previously used in a nonroad application is subsequently used in an application other than a nonroad application, or when an engine previously used in a stationary application (i.e., an engine that was not used as a nonroad engine and that was not used to propel a motor vehicle, an aircraft, or equipment used solely for competition) is moved.

(a) Changing the status of a stationary engine to be a new nonroad engine as described in paragraph (b) of this section is a violation of §1068.101(a)(1) or (b)(3) unless the engine has been certified to be compliant with all requirements of this chapter that apply to new nonroad engines of the same type (for example, a compression-ignition engine rated at 40 kW) and model year, and is in its certified configuration. Note that the definitions of “model year” in the standard-setting parts generally identify the engine's original date of manufacture as the basis for determining which standards apply if it becomes a nonroad engine after it is no longer new. For example, see 40 CFR 1039.801 and 1048.801.

(b) A stationary engine becomes a new nonroad engine if —

(1) It is used in an application that meets the criteria specified in paragraphs (1)(i) or (ii) in the definition of “nonroad engine” in §1068.30.

(2) It meets the criteria specified in paragraph (1)(iii) of the definition of “nonroad engine” in §1068.30 and is moved so that it fails to meet (or no longer meets) the criteria specified in paragraph (2)(iii) in the definition of “nonroad engine” in §1068.30.

(c) A stationary engine does not become a new nonroad engine if it is moved but continues to meet the criteria specified in paragraph (2)(iii) in the definition of “nonroad engine” in §1068.30 in its new location. For example, a transportable engine that is used in a single specific location for 18 months and is later moved to a second specific location where it will remain for at least 12 months is considered to be a stationary engine in both locations. Note that for stationary engines that are neither portable nor transportable in actual use, the residence-time restrictions in the definition of “nonroad engine” generally do not apply.

(d) Changing the status of a nonroad engine to be a new stationary engine as described in paragraph (e) of this section is a violation of §1068.101(a)(1) unless the engine complies with all the requirements of this chapter for new stationary engines of the same type (for example, a compression-ignition engine rated at 40 kW) and model year. For a new stationary engine that is required to be certified under 40 CFR part 60, the engine must have been certified to be compliant with all the requirements that apply to new stationary engines of the same type and model year, and must be in its certified configuration. Note that the definitions of “model year” in the standard-setting parts generally identify the engine's original date of manufacture as the basis for determining which standards apply if it becomes a stationary engine after it is no longer new. For example, see 40 CFR 60.4219 and 60.4248.

(e) A nonroad engine ceases to be a nonroad engine and becomes a new stationary engine if —

(1) At any time, it meets the criteria specified in paragraph (2)(iii) in the definition of “nonroad engine” in §1068.30. For example, a portable generator engine ceases to be a nonroad engine if it is used or will be used in a single specific location for 12 months or longer. If we determine that an engine will be or has been used in a single specific location for 12 months or longer, it ceased to be a nonroad engine when it was placed in that location.

(2) It is otherwise regulated by a federal New Source Performance Standard promulgated under section 111 of the Clean Air Act (42 U.S.C. 7411).

(f) A nonroad engine ceases to be a nonroad engine if it is used to propel a motor vehicle, an aircraft, or equipment used solely for competition. See 40 CFR part 86 for requirements applicable to motor vehicles and motor vehicle engines. See 40 CFR part 87 for requirements applicable to aircraft and aircraft engines. See §1068.235 for requirements applicable to equipment used solely for competition.

[73 FR 59344, Oct. 8, 2008, as amended at 75 FR 23059, Apr. 30, 2010; 81 FR 74221, Oct. 25, 2016]

§1068.32 Explanatory terms.

This section explains how certain phrases and terms are used in 40 CFR parts 1000 through 1099, especially those used to clarify and explain regulatory provisions.

(a) Types of provisions. The term “provision” includes all aspects of the regulations in this subchapter U. As described in this section, regulatory provisions include standards, requirements, prohibitions, and allowances, along with a variety of other types of provisions. In certain cases, we may use these terms to apply to some but not all of the provisions of a part or section. For example, we may apply the allowances of a section for certain engines, but not the requirements. We may also apply all provisions except the requirements and prohibitions.

(1) A standard is a requirement established by regulation that limits the emissions of air pollutants. Examples of standards include numerical emission standards (such as 0.01 g/kW-hr) and design standards (such as a closed crankcase standard). Compliance with or conformance to a standard is a specific type of requirement, and in some cases a standard may be discussed as a requirement. Thus, a statement about the requirements of a part or section also applies with respect to the standards of the part or section.

(2) The regulations in subchapter U of this chapter apply other requirements in addition to standards. For example, manufacturers are required to keep records and provide reports to EPA.

(3) While requirements state what someone must do, prohibitions state what someone may not do. Prohibitions are often referred to as prohibited acts or prohibited actions. Most penalties apply for violations of prohibitions. A list of prohibitions may therefore include the failure to meet a requirement as a prohibited action.

(4) Allowances provide some form of relief from requirements. This may include provisions delaying implementation, establishing exemptions or test waivers, or creating alternative compliance options. Allowances may be conditional. For example, we may exempt you from certain requirements on the condition that you meet certain other requirements.

(5) The regulations in subchapter U of this chapter also include important provisions that are not standards, requirements, prohibitions, or allowances, such as definitions.

(6) Engines/equipment are generally considered “subject to” a specific provision if that provision applies, or if it does not apply because of an exemption authorized under the regulation. For example, locomotives are subject to the provisions of 40 CFR part 1033 even if they are exempted from the standards of part 1033.

(b) Singular and plural. Unless stated otherwise or unless it is clear from the regulatory context, provisions written in singular form include the plural form and provisions written in plural form include the singular form. For example, the statement “The manufacturer must keep this report for three years” is equivalent to “The manufacturers must keep these reports for three years.”

(c) Inclusive lists. Lists in the regulations in subchapter U of this chapter prefaced by “including” or “this includes” are not exhaustive. The terms “including” and “this includes” should be read to mean “including but not limited to” and “this includes but is not limited to”. For example, the phrase “including small manufacturers” does not exclude large manufacturers. However, prescriptive statements to “include” specific items (such as those related to recordkeeping and reporting requirements) may be exhaustive.

(d) Notes. Statements that begin with “Note:” or “Note that” are intended to clarify specific regulatory provisions stated elsewhere in the regulations in subchapter U of this chapter. By themselves, such statements are not intended to specify regulatory requirements. Such statements are typically used for regulatory text that, while legally sufficient to specify a requirement, may be misunderstood by some readers. For example, the regulations might note that a word is defined elsewhere in the regulations to have a specific meaning that may be either narrower or broader than some readers might assume.

(e) Examples. Examples provided in the regulations in subchapter U of this chapter are typically introduced by either “for example” or “such as”. Specific examples given in the regulations do not necessarily represent the most common examples. The regulations may specify examples conditionally (that is, specifying that they are applicable only if certain criteria or conditions are met). Lists of examples cannot be presumed to be exhaustive lists.

(f) Generally and typically. Statements that begin with “generally”, “in general”, or “typically” should not be read to apply universally or absolutely. Rather they are intended to apply for the most common circumstances. “Generally” and “typically” statements may be identified as notes as described in paragraph (d) of this section.

(g) Unusual circumstances. The regulations in subchapter U of this chapter specify certain allowances that apply “in unusual circumstances”. While it is difficult to precisely define what “unusual circumstances” means, this generally refers to specific circumstances that are both rare and unforeseeable. For example, a severe hurricane in the northeastern United States may be considered to be an unusual circumstance, while a less severe hurricane in the southeastern United States may not be. Where the regulations limit an allowance to unusual circumstances, manufacturers and others should not presume that such an allowance will be available to them. Provisions related to unusual circumstances may be described using the phrase “normal circumstances”, which are those circumstances that are not unusual circumstances.

(h) Exceptions and other specifications. Regulatory provisions may be expressed as a general prohibition, requirement, or allowance that is modified by other regulatory text. Such provisions may include phrases such as “unless specified otherwise”, “except as specified”, or “as specified in this section”. It is important that the exceptions and the more general statement be considered together. This regulatory construct is intended to allow the core requirement or allowance to be stated in simple, clear sentences, rather than more precise and comprehensive sentences that may be misread. For example, where an action is prohibited in most but not all circumstances, the provision may state that you may not take the action, “except as specified in this section.” The exceptions could then be stated in subsequent regulatory text.

[81 FR 74221, Oct. 25, 2016]

1068.35 Symbols, acronyms, and abbreviations.

The following symbols, acronyms, and abbreviations apply to this part:

$ U.S. dollars.

CFR Code of Federal Regulations.

disp engine displacement.

EPA Environmental Protection Agency.

kW kilowatt.

L/cyl liters per cylinder.

NARA National Archives and Records Administration.

NO_X Oxides of nitrogen.

SAE Society of Automotive Engineers.

SEA selective enforcement audit.

U.S. United States.

U.S.C. United States Code.

§1068.40 Special provisions for implementing changes in the regulations in this part.

(a) During the 12 months following the effective date of any change in the provisions of this part, you may ask to apply the previously applicable provisions. Note that the effective date is generally 30 or 60 days after publication in the Federal Register, as noted in the final rule. We will generally approve your request if you can demonstrate that it would be impractical to comply with the new requirements. We may consider the potential for adverse environmental impacts in our decision. Similarly, in unusual circumstances, you may ask for relief under this paragraph (a) from new requirements that apply under the standard-setting part.

(b) During the 60 days following the effective date of any change in the provisions of this part, you may use the previously applicable provisions without request if they meet either of the following criteria:

(1) The new provisions require you to redesign your engines/equipment, modify your engine/equipment labels, or change your production procedures.

(2) The new provisions change what you must include in an application for certification that you submit before the end of this 60-day period. You are not required to amend such applications to comply with the new provisions for that model year; however, this allowance does not apply for later model years, even if you certify an engine family using carryover emission data. This allowance does not affect your obligation to provide information that we request separate from an application for certification.

[75 FR 23059, Apr. 30, 2010, as amended at 81 FR 74222, Oct. 25, 2016]

§1068.45 General labeling provisions.

The provisions of this part and the standard-setting part include a variety of labeling requirements. The following general provisions apply:

(a) Permanent labels. Where we specify that you apply a permanent label, you must meet the following requirements unless the standard-setting part includes other specific label requirements:

(1) Attach the label so no one can remove it without destroying or defacing it.

(2) Make sure it is durable and readable for the engine/equipment's entire life.

(3) Secure it to a part of the engine/equipment needed for normal operation and not normally requiring replacement.

(4) Write it in English.

(5) Make the labels readily visible to the average person after all installation and assembly are complete.

(b) Removable labels. Where we specify that you apply a removable label, it must meet the following conditions:

(1) You must attach the label in a way that does not allow it to be separated from the engine/equipment without a deliberate effort. Note that for exemptions requiring removable labels, the exemption no longer applies once the label is separated from the engine/equipment.

(2) The label must be durable and readable throughout the period of its intended purpose. This period generally includes all distribution in U.S. commerce during which the exemption applies.

(3) Except as specified in paragraph (c) of this section, the label must be attached directly to the engine/equipment in a visible location. We consider a tag that meets the specified requirements to be an attached label.

(c) Labels on packaging. Unless we specify otherwise, where we require engine/equipment labels that may be removable, you may instead label the packaging if the engines/equipment are packaged together as described in this paragraph (c). For example, this may involve packaging engines together by attaching them to a rack, binding them together on a pallet, or enclosing them in a box. The provisions of this paragraph (c) also apply for engines/equipment boxed individually where you do not apply labels directly to the engines/equipment. The following provisions apply if you label the packaging instead of labeling engines/equipment individually:

(1) You may use the provisions of this paragraph (c) only if all the engines/equipment packaged together need the same label.

(2) You must place the label on the package in a readily visible location. This may require labeling the package in multiple locations.

(3) You must package the engines/equipment such that the labels will not be separated from the engines/equipment or otherwise become unreadable throughout the period that the label applies. For example, labels required for shipping engines to a secondary engine manufacturer under §1068.262 must remain attached and readable until they reach the secondary engine manufacturer. Similarly, removable labels specified in §1068.240 for replacement engines must remain attached and readable until they reach the point of final installation.

(4) You are in violation of §1068.101(a)(1) if such engines/equipment are removed from the package or are otherwise separated from the label before reaching the point at which the label is no longer needed.

(d) Temporary consumer labels. Where we specify that you apply temporary consumer labels (including tags), each label must meet the following conditions:

(1) You must attach the label in a way that does not allow it to be separated from the engine/equipment without a deliberate effort.

(2) The label must be sufficiently durable to be readable until it reaches the ultimate purchaser.

(3) The label must be attached directly to the engine/equipment in a visible location.

(e) Prohibitions against removing labels. As specified in §1068.101(b)(7), removing permanent labels is prohibited except for certain circumstances. Removing temporary or removable labels prematurely is also prohibited by §1068.101(b)(7).

(f) Identifying emission control systems. If the standard-setting part specifies that you use standardized terms and abbreviations to identify emission control systems, use terms and abbreviations consistent with SAE J1930 (incorporated by reference in §1068.95).

(g) Date format. If you use a coded approach to identify the engine/equipment's date of manufacture, describe or interpret the code in your application for certification.

(h) Branding. The following provisions apply if you identify the name and trademark of another company instead of your own on your emission control information label, as provided in the standard-setting part:

(1) You must have a contractual agreement with the other company that obligates that company to take the following steps:

(i) Meet the emission warranty requirements that apply under the standard-setting part. This may involve a separate agreement involving reimbursement of warranty-related expenses.

(ii) Report all warranty-related information to the certificate holder.

(2) In your application for certification, identify the company whose trademark you will use.

(3) You remain responsible for meeting all the requirements of this chapter, including warranty and defect-reporting provisions.

[73 FR 59344, Oct. 8, 2008, as amended at 75 FR 23059, Apr. 30, 2010; 81 FR 74222, Oct. 25, 2016]

§1068.50 Adjustable parameters.

(a) The standard-setting part requires as a condition of certification that engines with adjustable parameters meet all the requirements of the standard-setting part for any setting in the practically adjustable range. This section defines these terms and describes general provisions that apply broadly across sectors. This section refers to engines, because most adjustable parameters are integral to the engine even in the case of equipment-based standards; this section also applies for equipment-based adjustable parameters. The provisions of this section apply starting with model year 2027 and are optional for earlier model years.

(b) You must use good engineering judgment for all decisions related to adjustable parameters. We recommend that you ask for preliminary approval for decisions related to new technologies, substantially changed engine designs, or new methods for limiting adjustability. The standard-setting part describes the information you must include in the application for certification related to adjustable parameters. Decisions related to adjustable parameters include the following:

(1) Determining which engine operating parameters qualify as adjustable parameters.

(2) Establishing the adequacy of the limits, stops, seals, programming limits, inducements, or other means used to limit adjustment, limit reprogramming, or ensure replenishment.

(3) Defining the practically adjustable range for each such parameter.

(c) For purposes of this section, “operating parameter” means any feature that can, by the nature of its design, be adjusted to affect engine performance. For example, while bolts used to assemble the engine are practically adjustable (can be loosened or tightened), they are not adjustable parameters because they are not operating parameters. Consider all programmable parameters not involving user-selectable controls to be a single, collective operating parameter.

(d) Operating parameters are considered adjustable parameters if they are practically adjustable by a user or other person by physical adjustment, programmable adjustment, or regular replenishment of a fluid or other consumable material. However, an operating parameter is not an adjustable parameter if—

(1) We determine it is permanently sealed or it is not practically adjustable using available tools, as described in paragraph (e) of this section; or

(2) We determine that engine operation over the full range of adjustment does not affect emissions without also degrading engine performance to the extent that operators will be aware of the problem.

(e) An operating parameter is considered practically adjustable as follows:

(1) Physically adjustable parameters are considered practically adjustable if the adjustment is accessible and can be performed by an experienced mechanic using appropriate tools within the following time and cost thresholds, excluding extraordinary measures:

(i) For engines at or below 30 kW, physically adjustable parameters are considered practically adjustable if a typical user can make adjustments with ordinary tools within 15 minutes using service parts that cost no more than $30.

(ii) For 30-560 kW engines, physically adjustable parameters are considered practically adjustable if a qualified mechanic can make adjustments with ordinary tools within 60 minutes using service parts that cost no more than $60.

(iii) For engines above 560 kW, physically adjustable parameters are considered practically adjustable if a qualified mechanic can make adjustments with any available supplies and tools within 60 minutes.

(iv) Cost thresholds in this section are expressed in 2020 dollars. Adjust these values for certification by comparing most recently available Consumer Price Index for All Urban Consumers (CPI-U) value published by the Bureau of Labor Statistics at www.bls.gov/data/inflation_calculator.htm .

(v) Cost thresholds do not include the cost of labor or the cost of any necessary tools or nonconsumable supplies. Time thresholds refer to the time required to access and adjust the parameter, excluding any time necessary to purchase parts, tools, or supplies, or to perform testing.

(vi) The term “ordinary tools” has the following meanings for different sizes of engines:

(A) Ordinary tools consist of slotted and Phillips head screwdrivers, pliers, hammers, awls, wrenches, electric screwdrivers, electric drills, and any tools supplied by the manufacturer, where those tools are used for their intended purpose.

(B) For 30-560 kW engines, ordinary tools includes the tools identified in paragraph (e)(1)(vi)(A) of this section and any other hand tools, solvents, or other supplies sold at hardware stores, automotive parts supply stores or on the internet.

(vii) The following extraordinary measures are not included when determining whether a physically adjustable parameter is considered “practically adjustable” according to the specified time and cost thresholds:

(A) Removing the cylinder head(s) from the engine block.

(B) Fully or partially removing a carburetor.

(C) Drilling or grinding through caps or plugs.

(D) Causing damage to engine or equipment if the associated repair would exceed the time or cost thresholds in this paragraph (e)(1).

(E) Making special tools to override design features that prevent adjustment. Note that extraordinary measures do not include purchase of such special tools if they become available as described in paragraph (e)(1)(vi)(B) of this section.

(2) A programmable operating parameter is considered “practically adjustable” if an experienced mechanic can adjust the parameter using any available tools (including devices that are used to alter computer code). Conversely, such parameters are not practically adjustable if you limit access to electronic control modules with password or encryption protection. You must have adequate protections in place to prevent distribution and use of passwords or encryption keys. This paragraph (e)(2) applies for engines with any degree of programmable control. Programmable settings are considered practically adjustable if any of the following apply:

(i) The user can make the adjustment by following instructions in the owners manual.

(ii) An experienced mechanic can make the adjustment using ordinary digital interface tools for selecting available settings or options as described in this paragraph (e)(2).

(f) The practically adjustable range for physically adjustable operating parameters is based on design features to create physical limits or stops to limit adjustment. A physical limit or stop is adequate for defining the limits of the practically adjustable range if it has the following characteristics:

(1) In the case of a threaded adjustment, the head is sheared off after adjustment at the factory or the threads are terminated, pinned, or crimped to prevent additional travel without causing damage for which the repair would exceed the time or cost thresholds in paragraph (e)(1) of this section.

(2) In the case of fasteners, bimetal springs, or other mechanical devices used to limit adjustment, those devices are recessed within a larger, permanent body and sealed with a plug, cap, or cover plate that limits access to the device consistent with the time and cost thresholds in paragraph (e)(1) of this section.

(3) Operators cannot exceed the travel or rotation limits using appropriate tools without causing damage for which the repairs would exceed the time or cost thresholds specified in paragraph (e)(1) of this section. For example, if a vehicle has a shim, bushing, or other device to limit flow rates, range of travel, or other parameters to prevent operating outside of a specified range of engine or vehicle speeds, you must take steps to prevent operators or mechanics from removing, replacing, or altering those parts to operate at a wider range of engine or vehicle speeds.

(g) Apply the following provisions to determine the practically adjustable range for programmable parameters that can be adjusted by changing software or operating parameters (“reflashed”):

(1) If an engine includes multiple operating modes or other algorithms that can be selected or are easily accessible, consider each of the selectable or accessible modes or settings to be within the practically adjustable range.

(2) If you sell or offer to sell software or other tools that an experienced mechanic not affiliated with the manufacturer could use to reflash or otherwise modify the electronic control module, consider all those settings to be within the practically adjustable range.

(3) The following systems and features illustrate examples of the types of programmable settings for which this paragraph (g) applies:

(i) Air-fuel setpoints for closed-loop fuel systems.

(ii) Reductant flow systems.

(iii) Base maps for fuel injection or spark timing.

(iv) Exhaust gas recirculation maps.

(h) The following provisions apply for adjustable parameters related to elements of design involving consumption and replenishment, such as DEF tank fill level and hybrid battery state of charge:

(1) We will determine the range of adjustability based on the likelihood of in-use operation at a given point in the physically adjustable range. We may determine that operation in certain subranges within the physically adjustable range is sufficiently unlikely that the subranges should be excluded from the allowable adjustable range for testing. In such cases, the engines/equipment are not required to meet the emission standards for operation in an excluded subrange.

(2) Shipping new engines/equipment in a state or configuration requiring replenishment to be within the range of adjustability for a certified configuration does not cause a violation of the prohibition in §1068.101(a)(1).

(i) We will make determinations regarding in-use adjustments of adjustable parameters under this section for certifying engines as follows:

(1) Our determinations will depend on in-use maintenance practices conforming to the maintenance and service information you provide. For example, if your published maintenance instructions describe routine procedures for adjusting engines or if you or your dealers make specialized tools available to operators, we will conclude that such adjustments are likely to occur. Also, your maintenance and service information may not specify adjustable ranges that are broader than those that you specify in your application for certification.

(2) We may review manufacturer statements under this section for certifying engines for a later model year if we learn from observation of in-use engines or other information that a parameter was in fact practically adjustable or that the specified operating range was in fact not correct. We may require you to include a new adjustable parameter or to revise your specified operating range for an adjustable parameter.

(j) We may inspect your engines at any time to determine whether they meet the specifications of this section. We may purchase engines for testing, or we may ask you to supply engines for such inspections. We will inspect using appropriate tools and time limits and using any available devices that alter computer code, as specified in paragraph (e)(2) of this section. The inspection will determine the following:

(1) If the adjustable parameter is limited to the adjustable range specified in the manufacturer's certification application.

(2) If physical stops for physically adjustable parameters can be bypassed using methods outlined in paragraph (f) of this section.

(k) Except as provided in the standard-setting part and this paragraph (k), engines are not in the certified configuration if you produce them with adjustable parameters set outside the range specified in your application for certification. Similarly, engines are not in the certified configuration if you produce them with other operating parameters that do not conform to the certified configuration. Where we determine that you failed to identify something that should be considered an adjustable parameter, we may require you to treat the parameter as defective under §1068.501. If we determine you deliberately misrepresented the accessibility of the parameter or that you did not act in good faith, we may take action regarding your certificate as described in the standard-setting part (see, for example, 40 CFR 1054.255).

(l) Nothing in this section limits the tampering prohibition of §1068.101(b)(1) or the defeat device prohibition of §1068.101(b)(2).

[88 FR 4714, Jan. 24, 2023]

§1068.95 Incorporation by reference.

(a) Certain material is 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, the Environmental Protection Agency must publish a document 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.

(b) SAE International, 400 Commonwealth Dr., Warrendale, PA 15096-0001, (724) 776-4841, or http://www.sae.org:

(1) SAE J1930, Electrical/Electronic Systems Diagnostic Terms, Definitions, Abbreviations, and Acronyms, revised October 2008 (“SAE J1930”), IBR approved for §1068.45(f).

(2) [Reserved]

[81 FR 74222, Oct. 25, 2016]