Subpart G - Importation of Nonconforming Nonroad Engines

§89.601 Applicability.

(a) Except where otherwise indicated, this subpart is applicable to nonroad engines for which the Administrator has promulgated regulations under this part prescribing emission standards and nonroad vehicles and equipment containing such nonroad engines that are offered for importation or imported into the United States, but which engines, at the time of conditional importation, are not covered by certificates of conformity issued under section 213 and section 206(a) of the Clean Air Act as amended (that is, which are nonconforming nonroad engines as defined in §89.602), 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.

§89.602 Definitions.

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

Certificate of conformity. The document issued by the Administrator under section 213 and section 206(a) of the Act.

Currently valid certificate of conformity. A certificate of conformity for which the current date is within the effective period as specified on the certificate of conformity, and which has not been withdrawn, superseded, voided, suspended, revoked, or otherwise rendered invalid.

Fifteen working day hold period. The period of time between a request for final admission and the automatic granting of final admission (unless EPA intervenes) for a nonconforming nonroad engine conditionally imported pursuant to §89.605 or §89.609. Day one of the hold period is the first working day (see definition for “working day” in this section) after the Engine Programs and Compliance Division of EPA receives a complete and valid application for final admission.

Independent commercial importer (ICI). An importer who is not an original engine manufacturer (OEM) (see definition below), but is the entity in whose name a certificate of conformity for a class of nonroad engines has been issued.

Model year for imported engines. The manufacturer's annual production period (as determined by the Administrator) which includes January 1 of the calendar year; provided, that if the manufacturer has no annual production period, the term “model year” means the calendar year in which a nonroad engine is modified. An independent commercial importer (ICI) is deemed to have produced a nonroad engine when the ICI has modified (including labeling) the nonconforming nonroad engine to meet applicable emission requirements.

Nonconforming nonroad engine. A nonroad engine which is not covered by a certificate of conformity prior to final or conditional admission (or for which such coverage has not been adequately demonstrated to EPA) and which has not been finally admitted into the United States under the provisions of §89.605 or §89.609.

Original engine manufacturer (OEM). The entity which originally manufactured the nonroad engine.

Original production (OP) year. The calendar year in which the nonroad engine was originally produced by the OEM.

Original production (OP) years old. The age of a nonroad engine as determined by subtracting the original production year of the nonroad engine from the calendar year of importation.

Production changes. Those changes in nonroad engine configuration, equipment, or calibration which are made by an OEM or ICI in the course of nonroad engine production and required to be reported under §89.123.

United States. United States includes the customs territory of the United States as defined in 19 U.S.C. 1202, and the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.

Useful life. A period of time as specified in subpart B of this part which for a nonconforming nonroad engine begins at the time of resale (for a nonroad engine owned by the ICI at the time of importation) or release to the owner (for a nonroad engine not owned by the ICI at the time of importation) of the nonroad engine by the ICI after modification and/or testing pursuant to §89.605 or §89.609.

Working day. Any day on which federal government offices are open for normal business. Saturdays, Sundays, and official federal holidays are not working days.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 57021, Oct. 23, 1998]

§89.603 General requirements for importation of nonconforming nonroad engines.

(a) A nonconforming nonroad engine offered for importation into the United States is to be imported only by an Independent Commercial Importer (ICI) who is a holder of a currently valid certificate of conformity unless an exemption or exclusion is granted by the Administrator under §89.611 of this subpart. For a nonroad engine imported pursuant to §89.605, the ICI must hold a currently valid certificate of conformity for that specific nonroad engine model.

(b) Any nonroad engine imported into the United States must have a legible unique engine identification number permanently affixed to or engraved on the engine.

(c) Final admission may not be granted unless:

(1) The nonroad engine is covered by a certificate of conformity issued under subpart B of this part in the name of the ICI and the ICI has complied with all requirements of §89.605; or

(2) The nonroad engine is modified and emission tested in accordance with the provisions of §89.609 and the ICI has complied with all other requirements of §89.609; or

(3) The nonroad engine is exempted or excluded under §89.611.

(d) The ICI must submit to the Engine Programs and Compliance Division of EPA a copy of all approved applications for certification used to obtain certificates of conformity for the purpose of importing nonconforming nonroad engines pursuant to §89.605 or §89.609. In addition, the ICI must submit to the Engine Programs and Compliance Division a copy of all approved production changes implemented pursuant to §89.605 or subpart B of this part. Documentation submitted pursuant to this paragraph (d) must be provided to the Engine Programs and Compliance Division within 10 working days of approval of the certification application (or production change) by EPA.

(e)(1) The applicable emission standards for engines imported by an ICI under this subpart are the emission standards applicable to the Original Production (OP) year of the engine.

(2) Where engine manufacturers have choices in emission standards for one or more pollutants in a given model year, the standard that applies to the ICI is the least stringent standard for that pollutant applicable to the OP year for the appropriate power category.

(3) ICIs may not generate, use or trade emission credits or otherwise participate in any way in the averaging, banking and trading program.

(4) An ICI may import no more than a total of five engines under this part for any given model year, except as allowed by paragraph (e)(5) of this section. For ICIs owned by a parent company, the importation limit includes importation by the parent company and all its subsidiaries.

(5) An ICI may exceed the limit outlined in paragraph (e)(4) of this section, provided that any engines in excess of the limit meet the emission standards and other requirements outlined in the applicable provisions of Part 89 or 1039 of this chapter for the model year in which the engine is modified (instead of the emission standards and other requirements applicable for the OP year of the vehicle/engine).

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 57021, Oct. 23, 1998; 70 FR 40446, July 13, 2005]

§89.604 Conditional admission.

(a) A nonroad engine offered for importation under §89.605 or §89.609 may be conditionally admitted into the United States. These engines are refused final admission, unless at the time of conditional admission the importer has submitted to the Administrator a written report that the subject nonroad engine has been permitted conditional admission pending EPA approval of its application for final admission under §89.605 or §89.609. This written report is to contain the following:

(1) Identification of the importer of the nonroad engine and the importer's address, telephone number, and taxpayer identification number;

(2) Identification of the nonroad engine owner, the owner's address, telephone number, and taxpayer identification number;

(3) Identification of the nonroad engine including make, model, identification number, and original production year;

(4) Information indicating under what provision of these regulations the nonroad engine is to be imported;

(5) Identification of the place where the subject nonroad 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;

(7) Identification of the Independent Commercial Importer's (ICI) certificate of conformity that permits the ICI to import that nonroad engine (for importation under §89.605 or §89.609); and

(8) Such other information as is deemed necessary by the Administrator.

(b) EPA will not require a U.S. Customs Service bond for a nonconforming nonroad engine which is imported under §89.605 or §89.609. The period of conditional admission may not exceed 120 days. Nonroad engines imported under §89.605 or §89.609 may not be operated during the period of conditional admission except for that operation necessary to comply with the requirements of this subpart. During the period of conditional admission applicable to §89.605 or §89.609, the importer must store the nonroad engine at a location where the Administrator has reasonable access to the nonroad engine for inspection.

(c) During the period of conditional admission under §89.605 or §89.609, an ICI may transfer responsibility of a nonroad engine to another qualified ICI for the purposes of complying with this subpart.

(1) The transferee ICI must be a holder of a currently valid certificate of conformity for the specific nonroad engine being transferred or be authorized to import the nonroad engine pursuant to §89.609 as of the transfer date. The transferee ICI must comply with all the requirements of §89.603, §89.604, and either §89.605 or §89.609, as applicable.

(2) For the purpose of this subpart, the transferee ICI has “imported” the nonroad engine as of the transfer date as designated in a written record that is signed by both ICIs.

(3) The ICI that originally imported the nonroad engine is responsible for all requirements of this subpart from the actual date of importation until the date of transfer as designated in the written record. The transferee ICI is responsible for all requirements of this subpart beginning on the date of transfer.

(4) A copy of the written record is to be submitted to the Engine Programs and Compliance Division of EPA within five working days of the transfer date.

(d) Notwithstanding any other requirement of this subpart or U.S. Customs Service regulations, an ICI may also assume responsibility for the modification and testing of a nonconforming nonroad engine which was previously imported by another party. The ICI must be a holder of a currently valid certificate of conformity for that specific nonroad engine or authorized to import it pursuant to §89.609 at the time of assuming such responsibility. The ICI must comply with all the requirements of §89.603, §89.604, and either §89.605 or §89.609, as applicable. For the purposes of this subpart, the ICI has “imported” the nonroad engine as of the date the ICI assumes responsibility for the modification and testing of the nonroad engine. The ICI must submit written notification to the Engine Programs and Compliance Division of EPA within 10 working days of the assumption of that responsibility.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 57021, Oct. 23, 1998]

§89.605 Final admission of certified nonroad engines.

(a) A nonroad engine may be finally admitted into the United States upon approval of the ICI's application to the Administrator. The application is made by completing EPA forms in accordance with EPA instructions. The application contains:

(1) The information required in §89.604(a);

(2) Information demonstrating that the nonroad engine has been modified in accordance with a valid certificate of conformity. Demonstration is made in one of the following ways:

(i) The ICI attests that the nonroad engine has been modified in accordance with the provisions of the ICI's certificate of conformity; presents to EPA a statement written by the applicable Original Engine Manufacturer that the Original Engine Manufacturer must provide to the ICI, and to EPA, information concerning production changes to the class of nonroad engines described in the ICI's application for certification; delivers to the Engine Programs and Compliance Division of EPA notification by the ICI of any production changes already implemented by the Original Engine Manufacturer at the time of application and their effect on emissions; and obtains from EPA written approval to use this demonstration option; or

(ii) The ICI attests that the nonroad engine has been modified in accordance with the provisions of the ICI's certificate of conformity. The ICI also attests that it has conducted, within 120 days of entry, an applicable and valid emission test on every third nonroad engine imported under that certificate of conformity to demonstrate compliance with Federal emission requirements. The test is to be conducted at a laboratory located within the United States. Sequencing of the tests is determined by the date of importation of each nonroad engine beginning with the prototype nonroad engine used to obtain the applicable certificate of conformity. Should the ICI exceed a threshold of 300 nonroad engines imported under the certificate of conformity without adjustments or other changes in accordance with paragraph (a)(3) of this section, the amount of required testing is reduced to every fifth nonroad engine.

(3) The results of every emission test which the ICI conducted on the nonroad engine pursuant to paragraph (a)(2)(ii) of this section. Should a subject nonroad engine fail an emission test at any time, the following procedures are applicable:

(i) The ICI may either:

(A) Conduct one retest that involves no adjustment of the nonroad engine from the previous test (for example, adjusting the RPM, timing, air-to-fuel ratio, and so forth) other than adjustments to adjustable parameters that, upon inspection, were found to be out of tolerance. When such an allowable adjustment is made, the parameter may be reset only to the specified (that is, nominal) value (and not any other value within the tolerance band); or

(B) Initiate a change in production (production change) under the provisions of subpart B of this part that causes the nonroad engine to meet federal emission requirements.

(ii) If the ICI chooses to retest in accordance with paragraph (a)(3)(i)(A) of this section:

(A) The retests are to be completed no later than five working days subsequent to the first emission test;

(B) Should the subject nonroad engine fail the second emission test, then the ICI must initiate a change in production (a production change) under the provisions of subpart B of this part that causes the nonroad engine to meet federal emission requirements.

(iii) If the ICI chooses to initiate a change in production (a production change) under the provisions of subpart B of this part that causes the nonroad engine to meet federal requirements, a change involving adjustments of adjustable nonroad engine parameters (for example, adjusting the RPM, timing, air/fuel ratio) represents a change in the specified (that is, nominal) value to be deemed acceptable by EPA.

(iv) A production change made in accordance with this section is to be implemented on all subsequent nonroad engines imported under the certificate of conformity after the date of importation of the nonroad engine which gave rise to the production change.

(v) Commencing with the first nonroad engine receiving the production change, every third nonroad engine imported under the certificate of conformity is to be emission tested to demonstrate compliance with federal emission requirements until, as in paragraph (a)(2)(ii) of this section, a threshold of 300 nonroad engines imported under the certificate of conformity is exceeded without adjustments or other changes in accordance with paragraph (a)(3)(i)(A) of this section, at which time the amount of required emission testing is reduced to every fifth nonroad engine.

(vi) A report concerning these production changes is to be made to the Engine Programs and Compliance Division of EPA within ten working days of initiation of the production change. The cause of any failure of an emission test is to be identified, if known;

(4) The applicable deterioration factor, if any;

(5) The emission test results adjusted by the deterioration factor;

(6) Other information that may be specified by applicable regulations or on the certificate of conformity under which the nonroad engine has been modified in order to assure compliance with requirements of the Act;

(7) All information required under §89.610 related to maintenance, warranties, and labeling;

(8) An attestation by the ICI that the ICI is responsible for the nonroad engine's compliance with federal emission requirements, regardless of whether the ICI owns the nonroad engine imported under this section;

(9) The name, address, and telephone number of the person who the ICI prefers to receive EPA notification under §89.605(c);

(10) An attestation by the ICI that all requirements of §89.607 and §89.610 have been met; and

(11) Other information as is deemed necessary by the Administrator.

(b) EPA approval for final admission of a nonroad engine under this section is to be presumed not to have been granted if a requirement of this subpart has not been met. This includes, but is not limited to, properly modifying the nonroad engine to be in conformity in all material respects with the description in the application for certification or not complying with the provisions of §89.605(a)(2) or if the final emission test results, adjusted by the deterioration factor, if applicable, do not comply with applicable emission standards.

(c) Except as provided in paragraph (b) of this section, EPA approval for final admission of a nonroad engine under this section is presumed to have been granted if the ICI does not receive oral or written notice from EPA to the contrary within 15 working days of the date that the Engine Programs and Compliance Division of EPA receives the ICI's application under paragraph (a) of this section. EPA notice of nonapproval may be made to any employee of the ICI. It is the responsibility of the ICI to ensure that the Engine Programs and Compliance Division of EPA receives the application and to confirm the date of receipt. During this 15 working day hold period, the nonroad engine is to be stored at a location where the Administrator has reasonable access to the nonroad engine for the Administrator's inspection. The storage is to be within 50 miles of the ICI's testing facility to allow the Administrator reasonable access for inspection and testing. A storage facility not meeting this criterion must be approved in writing by the Administrator prior to the submittal of the ICI's application under paragraph (a) of this section.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 57021, Oct. 23, 1998]

§89.606 Inspection and testing of imported nonroad engines.

(a) In order to allow the Administrator to determine whether an ICI's production nonroad engines comply with applicable emission requirements or requirements of this subpart, an EPA enforcement officer or authorized representative is authorized to conduct inspections and/or tests of nonroad engines imported by the ICI. The ICI must admit an EPA enforcement officer or authorized representative during operating hours to any of the following places upon demand and upon presentation of credentials:

(1) Any facility where any nonroad engine imported by the ICI under this subpart was or is being modified, tested, or stored and

(2) Any facility where any record or other document relating to modification, testing, or storage of the nonroad engine, or required to be kept by §89.607, is located. EPA may require inspection or testing of nonroad engines at the test facility used by the ICI or at an EPA-designated testing facility, with transportation and/or testing costs to be borne by the ICI.

(b) Upon admission to any facility referred to in paragraph (a) of this section, an EPA enforcement officer or authorized representative is allowed during operating hours:

(1) To inspect and monitor any part or aspect of activities relating to the ICI's modification, testing, and/or storage of nonroad engines imported under this subpart;

(2) To inspect and make copies of record(s) or document(s) related to modification, testing, and storage of a nonroad engine, or required by §89.607; and

(3) To inspect and photograph any part or aspect of the nonroad engine and any component used in the assembly thereof.

(c) An EPA enforcement officer or authorized representative is to be furnished, by those in charge of a facility being inspected, with such reasonable assistance as the officer or representative may request to help discharge any function listed in this subpart. An ICI must make arrangements with those in charge of a facility operated for its benefit to furnish such reasonable assistance without charge to EPA. Reasonable assistance includes, but is not limited to, clerical, copying, interpretation and translation services, and the making available on request of personnel of the facility being inspected during their working hours to inform the EPA enforcement officer or authorized representative of how the facility operates and to answer any questions.

(d) The requirements of paragraphs (a), (b), and (c) of this section apply whether or not the ICI owns or controls the facility in question. It is the ICI's responsibility to make such arrangements as may be necessary to assure compliance with paragraphs (a), (b), and (c) of this section. Failure to do so, or other failure to comply with paragraphs (a), (b), or (c), may result in sanctions as provided for in the Act or §89.612(e).

(e) Duly designated enforcement officers are authorized to proceed ex parte to seek warrants authorizing the inspection or testing of the nonroad engines described in paragraph (a) of this section whether or not the enforcement officers first attempted to seek permission from the ICI or facility owner to inspect such nonroad engines.

(f) The results of the Administrator's test under this section comprise the official test data for the nonroad engine for purposes of determining whether the nonroad engine should be permitted final entry under §89.605 or §89.609.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998]

§89.607 Maintenance of independent commercial importer's records.

(a) The Independent Commercial Importer (ICI) subject to any of the provisions of this subpart must establish and maintain adequately organized and indexed records, correspondence and other applicable documents relating to the certification, modification, test, purchase, sale, storage, registration, and importation of that nonroad engine. The ICI must retain such records for 8 years from the date of final admission or exportation of a nonconforming nonroad engine imported by the ICI. These records include, but are not limited to:

(1) The declaration required by U.S. Bureau of Customs regulations.

(2) Any documents or other written information required by a federal government agency to be submitted or retained in conjunction with the certification, importation or emission testing (if applicable) of nonroad engines;

(3) All bills of sale, invoices, purchase agreements, purchase orders, principal or agent agreements, and correspondence between the ICI and the ultimate purchaser of each nonroad engine and between any agents of the above parties;

(4) For nonroad engines imported by an ICI pursuant to §89.605 or §89.609, documents providing parts identification data (including calibration changes and part numbers and location of such parts on each nonroad engine) associated with the emission control system installed on each nonroad engine demonstrating that such emission control system was properly installed on such nonroad engine;

(5) For nonroad engines imported by an ICI pursuant to §89.605 or §89.609, documents demonstrating that, where applicable, each nonroad engine was emission tested in accordance with subpart E of this part and part 86, subpart I of this chapter;

(6) Documents providing evidence that the requirements of §89.610 have been met;

(7) Documents providing evidence of compliance with all relevant requirements of the Clean Air Act;

(8) Documents providing evidence of the initiation of the 15 working day hold period (that is, evidence that the application submitted pursuant to §89.605(a) or §89.609(b) was received by EPA) for each nonroad engine imported pursuant to §89.605 or §89.609;

(9) For nonroad engines owned by the ICI at the time of importation, documents providing evidence of the date of sale and date of delivery to the ultimate purchaser, together with the name, address, and telephone number of the ultimate purchaser for each nonroad engine imported pursuant to §89.605 or §89.609;

(10) For nonroad engines not owned by the ICI at the time of importation, documents providing evidence and date of release to the owner (including owner's name, address, and telephone number) for each nonroad engine imported pursuant to §89.605 or §89.609;

(11) Documents providing evidence of the date of original manufacture of the nonroad engine. The importer may substitute an alternate date in lieu of the date of original manufacture, provided that the substitution of such alternate date is approved in advance by the Administrator.

(b) The ICI is responsible for ensuring the maintenance of records required by this section, regardless of whether or not facilities used by the ICI to comply with requirements of this subpart are under the control of the ICI.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998]

§89.608 “In Use” inspections and recall requirements.

(a) Nonroad engines which have been imported by an Independent Commercial Importer (ICI) pursuant to §89.605 or §89.609 and finally admitted by EPA may be inspected and emission tested by EPA for the recall period specified in §89.104(b).

(b) ICIs must maintain for eight years, and provide to EPA upon request, a list of owners or ultimate purchasers of all nonroad engines imported by the ICI under this subpart.

(c) The Administrator must notify the ICI whenever the Administrator has determined that a substantial number of a class or category of the ICI's nonroad 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 lives. After such notification, the recall regulations at subpart H of this part govern the ICI's responsibilities. References to a manufacturer in the recall regulations apply to the ICI.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998]

§89.609 Final admission of modification nonroad engines and test nonroad engines.

(a) A nonroad engine may be imported under this section by an Independent Commercial Importer (ICI) possessing a currently valid certificate of conformity only if:

(1) The nonroad engine is six original production years old or older; and

(2) The ICI's name has not been placed on a currently effective EPA list of ICIs ineligible to import such modification/test nonroad engines, as described in paragraph (e) of this section; and

(3) The ICI has a currently valid certificate of conformity for the same nonroad engine class and fuel type as the nonroad engine being imported.

(b) A nonroad engine conditionally imported under this section may be finally admitted into the United States upon approval of the ICI's application by the Administrator. The application is to be made by completing EPA forms, in accordance with EPA instructions. The ICI includes in the application:

(1) The identification information required in §89.604;

(2) An attestation by the ICI that the nonroad engine has been modified and tested in accordance with the applicable emission tests as specified in Subpart B §89.119(a) of this part at a laboratory within the United States;

(3) The results of all emission tests;

(4) The applicable deterioration factor assigned by EPA, if any;

(5) The emission test results adjusted by the applicable deterioration factor;

(6) All information required under §89.610 related to maintenance, warranties, and labeling;

(7) An attestation by the ICI that the ICI is responsible for the nonroad engine's compliance with federal emission requirements, regardless of whether the ICI owns the nonroad engine imported under this section;

(8) The applicable address and telephone number of the ICI, or the name, address, and telephone number of the person who the ICI prefers to receive EPA notification under §89.609(d);

(9) An attestation by the ICI that all requirements of §89.607-95 and §89.610 have been met; and

(10) Such other information as is deemed necessary by the Administrator.

(c) EPA approval for final admission of a nonroad engine under this section is presumed not to have been granted if any requirement of this subpart has not been met.

(d) Except as provided in paragraph (c) of this section, EPA approval for final admission of a nonroad engine under this section is presumed to have been granted if the ICI does not receive oral or written notice from EPA to the contrary within 15 working days of the date that the Engine Programs and Compliance Division of EPA receives the ICI's application under paragraph (b) of this section. Such EPA notice of nonapproval may be made to any employee of the ICI. It is the responsibility of the ICI to ensure that the Engine Programs and Compliance Division of EPA receives the application and to confirm the date of receipt. During this 15 working day hold period, the nonroad engine is stored at a location where the Administrator has reasonable access to the nonroad engine for the Administrator's inspection. The storage is to be within 50 miles of the ICI's testing facility to allow the Administrator reasonable access for inspection and testing. A storage facility not meeting this criterion must be approved in writing by the Administrator prior to the submittal of the ICI's application under paragraph (b) of this section.

(e) EPA list of ICIs ineligible to import nonroad engines for modification/test. EPA maintains a current list of ICIs who have been determined to be ineligible to import nonroad engines under this section. The determination of ineligibility is made in accordance with the criteria and procedures in §89.612(e) of this subpart.

(f) Inspections. Prior to final admission, a nonroad engine imported under this section is subject to special inspections as described in §89.606 with these additional provisions:

(1) If, in the judgment of the Administrator, a significant number of nonroad engines imported by an ICI fail to comply with emission requirements upon inspection or retest or if the ICI fails to comply with a provision of these regulations that pertain to nonroad engines imported pursuant to §89.609, the ICI may be placed on the EPA list of ICIs ineligible to import nonroad engines under this section as specified in paragraph (e) of this section and §89.612(e).

(2) An individual nonroad engine which fails a retest or inspection is to be repaired and retested, as applicable, to demonstrate compliance with emission requirements before final admission is granted by EPA.

(3) Unless otherwise specified by EPA, the ICI bears the costs of all retesting under this subsection, including transportation.

(g) In-use inspection and testing. A nonroad engine imported under this section may be tested or inspected by EPA at any time during the recall period specified in §89.104(b), in accordance with §89.608(a). If, in the judgment of the Administrator, a significant number of properly maintained and used nonroad engines imported by the ICI pursuant to this section fail to meet emission requirements, the name of the ICI may be placed on the EPA list of ICIs ineligible to import nonroad engines under the modification/test provision as specified in paragraph (e) of this section and §89.612(e).

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 57021, Oct. 23, 1998]

§89.610 Maintenance instructions, warranties, emission labeling.

The provisions of this section are applicable to all nonroad engines imported under the provisions of §89.605 or §89.609.

(a) Maintenance instructions. (1) The Independent Commercial Importer (ICI) must furnish to the purchaser, or to the owner of each nonroad engine imported under §89.605 or §89.609 of this subpart, written instructions for the maintenance and use of the nonroad engine by the purchaser or owner. Each application for final admission of a nonroad engine is to provide an attestation that such instructions have been or will be (if the ultimate purchaser is unknown) furnished to the purchaser or owner of such nonroad engine at the time of sale or delivery. The ICI must maintain a record of having furnished such instructions.

(2) For each nonroad engine imported under §89.609, a copy of the maintenance and use instructions is to be maintained in a file containing the records for that nonroad engine.

(3) The maintenance and use instructions are not to contain requirements more restrictive than those set forth in §89.109 (Maintenance Instructions) and are to be in sufficient detail and clarity that a mechanic of average training and ability can maintain or repair the nonroad engine.

(4) For each nonroad engine imported pursuant to §89.605 or §89.609, ICIs must furnish with each nonroad engine a list of the emission control parts, emission-related parts added by the ICI, and the emission control and emission-related parts furnished by the Original Engine Manufacturer (OEM).

(5) The information required in this section to be furnished to the ultimate purchaser or owner is to be copied and maintained in a file containing the records for that nonroad engine prior to submitting each application for final admission pursuant to §89.605(a) or §89.609(b).

(b) Warranties. (1) ICIs must submit to the Engine Programs and Compliance Division of EPA sample copies (including revisions) of any warranty documents required by this section prior to importing nonroad engines under this subpart.

(2) ICIs must provide to nonroad engine owners emission warranties identical to those required by sections 207(a) of the Act. The warranty period for each nonroad engine is to commence on the date the nonroad engine is delivered by the ICI to the ultimate purchaser or owner.

(3) ICIs must provide warranty insurance coverage by a prepaid mandatory service insurance policy underwritten by an independent insurance company. The policy is to:

(i) Be subject to the approval of the Administrator if the insurance coverage is less than the required warranty;

(ii) At a minimum, provide coverage for emission-related components installed or modified by the ICI and, to the maximum extent possible, the emission-related components installed by the OEM;

(iii) Be transferable to each successive owner for the periods specified in §89.104(c); and

(iv) Provide that in the absence of an ICI's facility being reasonably available (that is, within 50 miles) for performance of warranty repairs, the warranty repairs may be performed anywhere.

(4) ICIs must attest in each application for final admission that the warranty requirements have been met, that the mandatory insurance has been paid and is in effect, and that certificates and statements of the warranties have been or will be provided to the owner or ultimate purchaser. A copy of the warranties and evidence that the warranties are paid and in effect is to be maintained in a file containing the records for each nonroad engine prior to submitting each application for final admission pursuant to §89.605(a) or §89.609(b).

(c) Emission labeling. (1) For each nonroad engine imported pursuant to §89.605 or §89.609, the ICI must affix a permanent legible label which identifies each nonroad engine and also satisfies the following:

(i) The label meets all the requirements of §89.110 and contains the following statement “This nonroad engine was originally produced in (month and year of original production). It has been imported and modified by (ICI's name, address, and telephone number) to conform to United States emission regulations applicable to the (year) model year.”

(ii) If the nonroad engine is owned by the ICI at the time of importation, the label also states “This nonroad engine is warranted for five years or 3000 hours of operation from the date of purchase, whichever first occurs.”

(iii) If the nonroad engine is not owned by the ICI at the time of importation, the label states “This nonroad engine is warranted for five years or 3000 hours of operation from the date of release to the owner, whichever first occurs.”

(iv) For nonroad engines imported under §89.609, the label clearly states in bold letters that “This nonroad engine has not been manufactured under a certificate of conformity but conforms to United States emission regulations under a modification/test program.” For all nonroad engines imported pursuant to §89.605 or §89.609, the label contains the vacuum hose routing diagram applicable to the nonroad engines.

(2) As part of the application to the Administrator for final admission of each individual nonroad engine under §89.609, the ICI must maintain a copy of the labels for each nonroad engine in a file containing the records for that nonroad engine prior to submitting each application for final admission. ICIs importing under §89.605 or §89.609 must attest to compliance with the preceding labeling requirements of this section in each application for final admission.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 57021, Oct. 23, 1998]

§89.611 Exemptions and exclusions.

(a) Individuals, as well as ICIs, are eligible for importing nonroad engines into the United States under the provisions of this section, unless otherwise specified.

(b) Notwithstanding other requirements of this subpart, a nonroad engine entitled to one of the temporary exemptions of this paragraph 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 approval from the Administrator is to contain the identification required in §89.604(a) (except for §89.604(a)(5)) and information that demonstrates that the importer is entitled to the exemption. Noncompliance with provisions of this section may result in the forfeiture of the total amount of the bond or exportation of the nonroad engine. The following temporary exemptions are permitted by this paragraph:

(1) Exemption for repairs or alterations. A person may conditionally import under bond a nonconforming engine solely for purpose of repairs or alterations. 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 repairs or alterations.

(2) Testing exemption. A test nonroad engine may be conditionally imported by a person subject to the requirements of §89.905. A test nonroad 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 concerning the nonroad engine in accordance with §89.905(f) for a subsequent one-year period.

(3) Precertification exemption. A prototype nonroad engine for use in applying to EPA for certification pursuant to this subpart may be conditionally imported subject to applicable provisions of §89.906 and the following requirements:

(i) No more than one prototype nonroad engine for each engine family for which an importer is seeking certification is to be imported.

(ii) The granting of precertification exemptions by the Administrator is discretionary. Normally, no more than three outstanding precertification exemptions are allowed for each importer. No precertification exemption is allowed if the importer requesting the exemption is in noncompliance with any requirement of this subpart until the noncompliance is corrected.

(iii) Unless a certificate of conformity is issued for the prototype nonroad engine and the nonroad engine is finally admitted pursuant to the requirements of §89.605 within 180 days from the date of entry, the total amount of the bond is to be forfeited or the nonroad engine exported unless an extension is granted by the Administrator. A request for an extension is to be in writing and received by the Administrator prior to the date that the precertification exemption expires.

(iv) Such precertification nonroad engine may not be operated in the United States other than for the sole purpose of the precertification exemption.

(4) Display exemptions. (i) A nonroad engine intended solely for display may be conditionally imported subject to the requirements of §89.907.

(ii) A display nonroad 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 a nonroad engine at a dealership, private use, or other purpose that the Administrator determines is not appropriate for display exemptions. A display nonroad engine may not be sold in the United States and may not be operated in the United States except for the operation incident and necessary to the display purpose.

(iii) A temporary display exemption is granted for 12 months or for the duration of the display purpose, whichever is shorter. Two 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. The U.S. Customs Service bonds a temporary display exemption.

(c) Notwithstanding any other requirement of this subpart, a nonroad engine may be finally admitted into the United States under this paragraph if prior written approval for such final admission is obtained from the Administrator. Conditional admission of these nonroad engines under this subpart is not permitted for the purpose of obtaining such written approval from the Administrator. A request for approval is to contain the identification information required in §89.604(a) (except for §89.604(a)(5)) and information that demonstrates that the importer is entitled to the exemption or exclusion. The following exemptions or exclusions are permitted by this paragraph:

(1) National security exemption. A nonroad engine may be imported under the national security exemption found at §89.908.

(2) Hardship exemption. The Administrator may exempt on a case-by-case basis a nonroad engine from federal emission requirements to accommodate unforeseen cases of extreme hardship or extraordinary circumstances.

(3) Exemption for nonroad engines identical to United States certified versions. (i) A person (including businesses) is eligible for importing a nonroad engine into the United States under the provisions of this paragraph. An exemption will be granted if the nonroad engine:

(A) is owned by the importer;

(B) is not offered for importation for the purpose of resale; and

(C) is proven to be identical, in all material respects, to a nonroad engine certified by the Original Engine Manufacturer (OEM) for sale in the United States or is proven to have been modified to be identical, in all material respects, to a nonroad engine certified by the OEM for sale in the United States according to complete written instructions provided by the OEM's United States representative, or his/her designee.

(ii) Proof of conformity. (A) Documentation submitted pursuant to this section for the purpose of proving conformity of individual nonroad engines is to contain sufficiently organized data or evidence demonstrating that the nonroad engine identified pursuant to §89.604(a) is identical, in all material respects, to a nonroad engine identified in an OEM's application for certification.

(B) If the documentation does not contain all the information required by this part, or is not sufficiently organized, EPA notifies the importer of any areas of inadequacy, and that the documentation does not receive further consideration until the required information or organization is provided.

(C) If EPA determines that the documentation does not clearly or sufficiently demonstrate that a nonroad engine is eligible for importation, EPA notifies the importer in writing.

(D) If EPA determines that the documentation clearly and sufficiently demonstrates that a nonroad engine is eligible for importation, EPA grants approval for importation and notifies the importer in writing. Notwithstanding any other requirement of this subpart, the notice constitutes approval for final admission into the United States.

(d) Foreign diplomatic and military personnel may import a nonconforming nonroad engine without bond. At the time of admission, the importer must submit to the Administrator the written report required in §89.604(a) (except for information required by §89.604(a)(5)) and a statement from the U.S. Department of State confirming qualification for this exemption. The nonroad engine may not be sold in the United States and must be exported if the individual's diplomatic status is no longer applicable, as determined by the Department of State, unless subsequently brought into conformity in accordance with §§89.605, 89.609, or 89.611(c)(3).

(e) Competition exclusion. A nonconforming engine may be imported by any person provided the importer demonstrates to the Administrator that the engine is used to propel a vehicle used solely for competition and obtains prior written approval from the Administrator. A nonconforming engine imported pursuant to this paragraph may not be operated in the United States except for that operation incident and necessary for the competition purpose, unless subsequently brought into conformity with United States emission requirements in accordance with §§89.605, 89.609, or 89.611(c)(3).

(f) Exclusions/exemptions based on date of original manufacture. (1) Notwithstanding any other requirements of this subpart, the following nonroad engines are excluded, as determined by the engine's gross power output, from the requirements of the Act in accordance with section 213 of the Act and may be imported by any person:

(i) All nonroad engines greater than or equal to 37 kW but less than 75 kW originally manufactured prior to January 1, 1998.

(ii) All nonroad engines greater than or equal to 75 kW but less than 130 kW originally manufactured prior to January 1, 1997.

(iii) All nonroad engines greater than or equal to 130 kW but less than or equal to 560 kW originally manufactured prior to January 1, 1996.

(iv) All nonroad engines greater than 560 kW originally manufactured prior to January 1, 2000.

(v) All nonroad engines greater than or equal to 19 kW but less than 37 kW originally manufactured prior to January 1, 1999.

(vi) All nonroad engines less than 19 kW originally manufactured prior to January 1, 2000.

(2) Notwithstanding other requirements of this subpart, a nonroad engine not subject to an exclusion under §89.611(f)(1) but greater than 20 original production (OP) years old is entitled to an exemption from the requirements of the Act, provided that it has not been modified in those 20 OP years and it is imported into the United States by an ICI. At the time of admission, the ICI must submit to the Administrator the written report required in §89.604(a) (except for information required by §89.604(a)(5)).

(g) An application for exemption and exclusion provided for in paragraphs (b), (c), and (e) of this section is to be mailed to: U.S. Environmental Protection Agency, Office of Mobile Sources, Engine Programs and Compliance Division (6405-J), 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention: Imports.

[59 FR 31335, June 17, 1994. Redesignated and amended at 63 FR 56996, 57022, Oct. 23, 1998; 70 FR 40446, July 13, 2005; 72 FR 53129, Sept. 18, 2007]

§89.612 Prohibited acts; penalties.

(a) The importation of a nonroad engine, including a nonroad engine incorporated into a nonroad vehicle or nonroad equipment, 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 a nonroad engine may not:

(1) Register, license, or operate the nonroad engine in the United States;

(2) Sell or offer the nonroad engine for sale;

(3) Store the nonroad engine on the premises of a dealer (unless approved by the Administrator), owner, or purchaser;

(4) Relinquish control of the nonroad engine to the owner or purchaser; or

(5) Cause a nonroad engine to be altered in any manner subsequent to modification and testing, if applicable, for which an application for final admission is based and submitted to the Administrator, unless approved in advance by the Administrator.

(c) A nonroad engine conditionally admitted pursuant to §89.604 and not granted final admission within 120 days of such 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 nonroad engine has been delivered to the U.S. Customs Service for export or other disposition under applicable Customs laws and regulations. A nonroad 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 the provisions of section 209 of the Act and is also subject to a civil penalty under section 205 of the Act of not more than $32,500 for each nonroad engine subject to the violation.

In addition to the penalty provided in the Act, where applicable, a person or entity who imports an engine under the exemption provisions of §89.611(b) and, who fails to deliver the nonroad engine to the U.S. Customs Service is liable for liquidated damages in the amount of the bond required by applicable Customs laws and regulations. The maximum penalty value listed in this paragraph (d) is 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 19, reference the applicable U.S. Code citation on which the prohibited action is based.

(e)(1) An ICI whose nonroad engines imported under §89.605 or §89.609 fail to conform to federal emission requirements after modification and/or testing or who fails to comply with applicable provisions of this subpart, may, in addition to any other applicable sanctions and penalties, be subject to any, or all, of the following sanctions:

(i) The ICI's currently held certificates of conformity may be revoked or suspended;

(ii) The ICI may be deemed ineligible to apply for new certificates of conformity for up to three years; and

(iii) The ICI may be deemed ineligible to import nonroad engines under §89.609 in the future and be placed on a list of ICIs ineligible to import nonroad engines under the provisions of §89.609.

(2) Grounds for the actions described in paragraph (e)(1) of this section include, but are not limited to, the following:

(i) Action or inaction by the ICI or the laboratory performing the emission test on behalf of the ICI, which results in fraudulent, deceitful, or grossly inaccurate representation of any fact or condition which affects a nonroad engine's eligibility for admission to the United States under this subpart;

(ii) Failure of a significant number of imported nonroad engines to comply with federal emission requirements upon EPA inspection or retest; or

(iii) Failure by an ICI to comply with requirements of this subpart.

(3) The following procedures govern any decision to suspend, revoke, or refuse to issue certificates of conformity under this subpart:

(i) When grounds appear to exist for the actions described in paragraph (e)(1) of this section, the Administrator must notify the ICI in writing of any intended suspension or revocation of a certificate of conformity, proposed ineligibility to apply for new certificates of conformity, or intended suspension of eligibility to conduct modification/testing under §89.609, and the grounds for such action.

(ii) Except as provided by paragraph (e)(3)(iv), the ICI must take the following actions before the Administrator will consider withdrawing notice of intent to suspend or revoke the ICI's certificate of conformity or to deem the ICI ineligible to apply for new certification or to deem the ICI ineligible to perform modification/testing under §89.609:

(A) Submit a written report to the Administrator which identifies the reason for the noncompliance of the nonroad engine, describes the proposed remedy, including a description of any proposed quality control and/or quality assurance measures to be taken by the ICI to prevent the future occurrence of the problem, and states the date on which the remedies are to be implemented or

(B) Demonstrate that the nonroad engine does in fact comply with applicable regulations in this chapter by retesting, if applicable, the nonroad engine in accordance with the applicable emission test specified in subpart E of this part.

(iii) An ICI may request, within 15 calendar days of the Administrator's notice of intent to suspend or revoke the ICI's certificate of conformity or to deem the ICI ineligible to apply for new certificates or to deem the ICI ineligible to perform modification/testing under §89.609, that the Administrator grant such ICI a hearing:

(A) As to whether the tests, if applicable, have been properly conducted,

(B) As to any substantial factual issue raised by the Administrator's proposed action.

(iv) If, after the Administrator notifies an ICI of the intent to suspend or revoke the ICI's certificate of conformity or to deem the ICI ineligible to apply for new certificates or to deem the ICI ineligible to perform modification/testing under §89.609 and prior to any final suspension or revocation, the ICI demonstrates to the Administrator's satisfaction that the decision to initiate suspension or revocation of the certificate of conformity or eligibility to perform modification/testing under §89.609 was based on erroneous information, the Administrator will withdraw the notice of intent.

(4) Hearings on suspensions and revocations of certificates of conformity or of eligibility to apply for new certificates or of eligibility to perform modification/testing under §89.609 will be held in accordance with the following:

(i) The procedures prescribed by this section will apply whenever an ICI requests a hearing pursuant to paragraph (e)(3)(iii) of this section.

(ii) Hearings under paragraph (e)(3)(iii) will be held in accordance with the procedures outlined in §86.614 of this chapter, where applicable, provided that where §86.612 is referred to in §86.614: §86.612(a) is replaced by §89.612(e)(2); and §86.612(i) is replaced by §89.612(e)(3)(iii)).

(5) When a hearing is requested under this section and it clearly appears from the data or other information contained in the request for a hearing, or submitted at the hearing, that no genuine and substantial question of fact exists with respect to the issue of whether the ICI failed to comply with this subpart, the Administrator will enter an order denying the request for a hearing, or terminating the hearing, and suspending or revoking the certificate of conformity and/or deeming the ICI ineligible to apply for new certificates or to perform modification/testing under §89.609.

(6) In lieu of requesting a hearing under paragraph (e)(3)(iii) of this section, an ICI may respond in writing to EPA's charges in the notice of intent to suspend or revoke. An ICI's written response must be received by EPA within 30 days of the date of EPA's notice of intent. No final decision to suspend or revoke will be made before that time.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998, as amended at 70 FR 40446, July 13, 2005]

§89.613 Treatment of confidential information.

The provisions for treatment of confidential information as described in §89.7 apply.

[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998]