1039.104—Are there interim provisions that apply only for a limited time?

The provisions in this section apply instead of other provisions in this part. This section describes when these interim provisions apply.

(a) Incentives for early introduction. This paragraph (a) allows you to reduce the number of engines subject to the applicable standards in § 1039.101 or § 1039.102, when some of your engines are certified to the specified levels earlier than otherwise required. The engines that are certified early are considered offset-generating engines. The provisions of this paragraph (a), which describe the requirements applicable to offset-generating engines, apply beginning in model year 2007. These offset generating engines may generate additional allowances for equipment manufacturers under the incentive program described in § 1039.627; you may instead use these offsets under paragraph (a)(2) of this section in some cases.

(1) For early-compliant engines to generate offsets for use either under this paragraph (a) or under § 1039.627, you must meet the following general provisions:

(i) You may not generate offsets from engines below 19 kW.

(ii) You must begin actual production of engines covered by the corresponding certificate by the following dates:

(A) For engines at or above 19 kW and below 37 kW: September 1, 2012.

(B) For engines at or above 37 kW and below 56 kW: September 1, 2012 if you choose Option #1 in Table 3 of § 1039.102, or September 1, 2011 if you do not choose Option #1 in Table 3 of § 1039.102.

(D) For engines in the 130-560 kW power category: September 1, 2010.

(E) For engines above 560 kW: September 1, 2014.

(iii) Engines you produce after December 31 of the year shown in paragraph (a)(1)(ii) of this section may not generate offsets.

(iv) You may not use ABT credits to certify offset-generating engines.

(v) Offset-generating engines must be certified to the Tier 4 standards and requirements under this part 1039.

(2) If equipment manufacturers decline offsets for your offset-generating engines under § 1039.627, you may not generate ABT credits with these engines, but you may reduce the number of engines that are required to meet the standards in § 1039.101 or § 1039.102 as follows:

For every . . .	With maximum engine power . . .	That are certified to the applicable standards in . . .	You may reduce the number of engines in the same power category that are required to meet the . . .	In later model years by . . .
(i) 2 engines	19 ≤ kW < 37	Table 2 of § 1039.102 1	PM standard in Table 2 of § 1039.102 applicable to model year 2013 or 2014 engines or the PM standard in Table 1 of § 1039.101	3 engines.
(ii) 2 engines	56 ≤ kW ≤ 560	Table 4, 5, or 6 of § 1039.102 for Phase-out engines	Phase-out standards in Tables 4 through 6 of § 1039.102	3 engines.
(iii) 2 engines	kW ≥ 19	Table 1 of § 1039.101	Standards in Tables 2 through 7 of § 1039.102 or standards in Table 1 of § 1039.101	3 engines. 2
(iv) 1 engine	kW ≥ 19	Table 1 of § 1039.101 0.20 g/kW-hr NOX standard	Standards in Tables 2 through 7 of § 1039.102 or standards in Table 1 of § 1039.101	2 engines. 2
1 The engine must be certified to the PM standard applicable to model year 2013 engines, and to the NOX NMHC and CO standards applicable to model year 2012 engines.
2 For engines above 560 kW, offsets from generator-set engines may be used only for generator-set engines. Offsets from engines for other applications may be used only for other applications besides generator sets.

(3) Example: If you produce 100 engines in the 56-130 kW power category in model year 2008 that are certified to the 56-130 kW standards listed in § 1039.101, and you produced 10,000 engines in this power category in model year 2015, then only 9,850 of these model year 2015 engines would need to comply with the standards listed in § 1039.101. The 100 offset-generating engines in model year 2008 could not use or generate ABT credits.

(4) Offset-using engines (that is, those not required to certify to the standards of § 1039.101 or § 1039.102 under paragraph (a)(2) of this section) are subject to the following provisions:

(i) If the offset is being used under paragraph (a)(2)(i) of this section for an engine that would otherwise be certified to the model year 2013 or 2014 standards in Table 2 of § 1039.102 or the standards in Table 1 of § 1039.101, this engine must be certified to the standards and requirements of this part 1039, except that the only PM standard that applies is the steady-state PM standard that applies for model year 2012. Such an engine may not generate ABT credits.

(ii) If the offset is being used under paragraph (a)(2)(ii) of this section for an engine that would otherwise be certified to the phase-out standards in Tables 4 through 6 of § 1039.102, this engine must be certified to the standards and requirements of this part 1039, except that the PM standard is the Tier 3 PM standard that applies for this engine's maximum power. Such an engine will be treated as a phase-out engine for purposes of determining compliance with percentage phase-in requirements. Such an engine may not generate ABT credits.

(iii) All other offset-using engines must meet the standards and other provisions that apply in model year 2011 for engines in the 19-130 kW power categories, in model year 2010 for engines in the 130-560 kW power category, or in model year 2014 for engines above 560 kW. Show that engines meet these emission standards by meeting all the requirements of § 1068.265. You must meet the labeling requirements in § 1039.135, but add the following statement instead of the compliance statement in § 1039.135(c)(12): “THIS ENGINE MEETS U.S. EPA EMISSION STANDARDS UNDER 40 CFR 1039.104(a).” For power categories with a percentage phase-in, these engines should be treated as phase-in engines for purposes of determining compliance with phase-in requirements.

(5) If an equipment manufacturer claims offsets from your engine for use under § 1039.627, the engine generating the offset must comply with the requirements of paragraph (a)(1) of this section. You may not generate offsets for use under paragraphs (a)(2) and (5) of this section for these engines. You may generate ABT credits from these engines as follows:

(i) To generate emission credits for NOX, NOX NMHC, and PM, the engine must be certified to FELs at or below the standards in paragraph (a)(2) of this section.

(ii) Calculate credits according to § 1039.705 but use as the applicable standard the numerical value of the standard to which the engine would have otherwise been subject if it had not been certified under this paragraph (a).

(iii) For the production volume, use the number of engines certified under this paragraph (a) for which you do not claim offsets under paragraph (a)(2) of this section.

(6) You may include engines used to generate offsets under this paragraph (a) and engines used to generate offsets under § 1039.627 in the same engine family, subject to the provisions of § 1039.230. The engine must be certified to FELs, as specified in paragraph (a)(5)(i) of this section. The FELs must be below the standard levels specified in paragraph (a)(2) of this section and those specified in § 1039.627. In the reports required in § 1039.730, include the following information for each model year:

(i) The total number of engines that generate offsets under this paragraph (a).

(ii) The number of engines used to generate offsets under paragraph (a)(2) of this section.

(iii) The names of equipment manufacturers that intend to use your offsets under § 1039.627 and the number of offsets involved for each equipment manufacturer.

(b) In-use compliance limits. For purposes of determining compliance after title or custody has transferred to the ultimate purchaser, calculate the applicable in-use compliance limits by adjusting the applicable standards or FELs. This applies only for engines at or above 19 kW. The NOX adjustment applies only for engines with a NOX FEL no higher than 2.1 g/kW-hr The PM adjustment applies only for engines with a PM FEL no higher than the PM standard in § 1039.101 for the appropriate power category. Add the following adjustments to the otherwise applicable standards or FELs (steady-state, transient, and NTE) for NOX and PM:

In model years . . .	If your engine's maximum power is . . .	The NOX adjustment in g/kW-hr is . . .	The PMadjustment in g/kW-hr is . . .
2013-2014	19 ≤ kW < 56	not allowed	0.01
2012-2016	56 ≤ kW < 130	0.16 for operating hours ≤ 20000.25 for operating hours 2001 to 3400 0.34 for operating hours > 3400	0.01
2011-2015	130 ≤ kW < 560	0.16 for operating hours ≤ 20000.25 for operating hours 2001 to 3400 0.34 for operating hours > 3400	0.01
2011-2016	kW > 560	0.16 for operating hours ≤ 20000.25 for operating hours 2001 to 3400 0.34 for operating hours > 3400	0.01

(c) Provisions for small-volume manufacturers. Special provisions apply if you are a small-volume engine manufacturer subject to the requirements of this part. You must notify us in writing before January 1, 2008 if you intend to use these provisions.

(1) You may delay complying with certain otherwise applicable Tier 4 emission standards and requirements as described in the following table:

If your engine's maximum power is . . .	You may delay meeting . . .	Until model year . . .	Before that model year the engine must comply with . . .
kW < 19	The standards and requirements of this part	2011	The standards and requirements in 40 CFR part 89 .
19 ≤ kW < 37	The Tier 4 standards and requirements of this part that would otherwise be applicable in model year 2013	2016	The Tier 4 standards and requirements that apply for model year 2008.
37 ≤ kW < 56	See paragraph (c)(2) of this section for special provisions that apply for engines in this power category.
56 ≤ kW < 130	The standards and requirements of this part	2015	The standards and requirements in 40 CFR part 89 .
Code of Federal Regulations 106

(2) To use the provisions of this paragraph (c) for engines at or above 37 kW and below 56 kW, choose one of the following:

(i) If you comply with the 0.30 g/kW-hr PM standard in § 1039.102 in all model years from 2008 through 2012 without using PM credits, you may continue meeting that standard through 2015.

(ii) If you do not choose to comply with paragraph (c)(2)(i) of this section, you may continue to comply with the standards and requirements in 40 CFR part 89 for model years through 2012, but you must begin complying in 2013 with Tier 4 standards and requirements specified in Table 3 of § 1039.102 for model years 2013 and later.

(3) After the delays indicated in paragraph (c)(1) and (2) of this section, you must comply with the same Tier 4 standards and requirements as all other manufacturers.

(4) For engines not in the 19-56 kW power category, if you delay compliance with any standards under this paragraph (c), you must do all the following things for the model years when you are delaying compliance with the otherwise applicable standards:

(i) Produce engines that meet all the emission standards and other requirements under 40 CFR part 89 applicable for that model year, except as noted in this paragraph (c).

(ii) Meet the labeling requirements in 40 CFR 89.110, but use the following compliance statement instead of the compliance statement in 40 CFR 89.110(b)(10): “THIS ENGINE COMPLIES WITH U.S. EPA REGULATIONS FOR [CURRENT MODEL YEAR] NONROAD COMPRESSION-IGNITION ENGINES UNDER 40 CFR 1039.104(c).”.

(iii) Notify the equipment manufacturer that the engines you produce under this section are excluded from the production volumes associated with the equipment-manufacturer allowance program in § 1039.625.

(5) For engines in the 19-56 kW power category, if you delay compliance with any standards under this paragraph (c), you must do all the following things for the model years when you are delaying compliance with the otherwise applicable standards:

(i) Produce engines in those model years that meet all the emission standards and other requirements that applied for your model year 2008 engines in the same power category.

(ii) Meet the labeling requirements in § 1039.135, but use the following compliance statement instead of the compliance statement in § 1039.135: “THIS ENGINE COMPLIES WITH U.S. EPA REGULATIONS FOR [CURRENT MODEL YEAR] NONROAD COMPRESSION-IGNITION ENGINES UNDER 40 CFR 1039.104(c).”.

(6) The provisions of this paragraph (c) may not be used to circumvent the requirements of this part.

(d) Deficiencies for NTE standards. You may ask us to accept as compliant an engine that does not fully meet specific requirements under the applicable NTE standards. Such deficiencies are intended to allow for minor deviations from the NTE standards under limited conditions. We expect your engines to have functioning emission-control hardware that allows you to comply with the NTE standards.

(1) Request our approval for specific deficiencies in your application for certification, or before you submit your application. We will not approve deficiencies retroactively to cover engines already certified. In your request, identify the scope of each deficiency and describe any auxiliary emission-control devices you will use to control emissions to the lowest practical level, considering the deficiency you are requesting.

(2) We will approve a deficiency only if compliance would be infeasible or unreasonable considering such factors as the technical feasibility of the given hardware and the applicable lead time and production cycles—including schedules related to phase-in or phase-out of engines. We may consider other relevant factors.

(3) Our approval applies only for a single model year and may be limited to specific engine configurations. We may approve your request for the same deficiency in the following model year if correcting the deficiency would require unreasonable hardware or software modifications and we determine that you have demonstrated an acceptable level of effort toward complying.

(4) You may ask for any number of deficiencies in the first three model years during which NTE standards apply for your engines. For the next four model years, we may approve up to three deficiencies per engine family. Deficiencies of the same type that apply similarly to different power ratings within a family count as one deficiency per family. We may condition approval of any such additional deficiencies during these four years on any additional conditions we determine to be appropriate. We will not approve deficiencies after the seven-year period specified in this paragraph (d)(4).

(e) Diesel test fuels and corresponding labeling requirements. For diesel-fueled engines in 2011 and later model years, the diesel test fuel is ultra low-sulfur diesel fuel specified in 40 CFR part 1065. For diesel-fueled engines in 2010 and earlier model years, use test fuels and meet labeling requirements as follows:

(1) Use the following test fuels in 2010 and earlier model years:

(i) Unless otherwise specified, the diesel test fuel is low-sulfur diesel fuel specified in 40 CFR part 1065.

(ii) In model years 2007 through 2010, you may use ultra low-sulfur diesel fuel as the test fuel for any engine family that employs sulfur-sensitive technology if you can demonstrate that in-use engines in the family will use diesel fuel with a sulfur concentration no greater than 15 ppm.

(iii) You may use ultra low-sulfur diesel fuel as the test fuel for engine families in any power category below 56 kW, as long as none of the engines in your engine family employ sulfur-sensitive technologies, you ensure that ultimate purchasers of equipment using these engines are informed that ultra low-sulfur diesel fuel is recommended, and you recommend to equipment manufacturers that a label be applied at the fuel inlet recommending 15 ppm fuel.

(iv) For the engines described in § 1039.101(c) that are certified to the 0.60 g/kW-hr PM standard in Table 1 of § 1039.102 in the 2010 model year, you may test with the ultra low-sulfur fuel specified in 40 CFR part 1065.

(2) Meet the labeling requirements of this paragraph (e)(2) (or other labeling requirements we approve) to identify the applicable test fuels specified in paragraph (e)(1) of this section. Provide instructions to equipment manufacturers to ensure that they are aware of these labeling requirements.

(i) For engines certified under the provisions of paragraph (e)(1)(i) of this section, include the following statement on the emission control information label and the fuel-inlet label specified in § 1039.135: “LOW SULFUR FUEL OR ULTRA LOW SULFUR FUEL ONLY”.

(ii) For engines certified under the provisions of paragraph (e)(1)(ii) of this section, include the following statement on the emission control information label and the fuel-inlet label specified in § 1039.135: “ULTRA LOW SULFUR FUEL ONLY”.

(iii) For engines certified under the provisions of paragraph (e)(1)(iii) of this section, include the following statement on the emission control information label specified in § 1039.135: “ULTRA LOW SULFUR FUEL RECOMMENDED”.

(3) For model years 2010 and earlier, we will use the test fuel that you use under paragraph (e)(1) of this section, subject to the conditions of paragraph (e)(1) of this section.

(f) Requirements for equipment manufacturers. If you produce equipment with engines certified to Tier 3 standards under Option #2 of Table 3 of § 1039.102 during model years from 2008 through 2011, then a minimum number of pieces of equipment you produce using 2012 model year engines must have engines certified to the Option #2 standards, as follows:

(1) For equipment you produce with 2012 model year engines at or above 37 kW and below 56 kW, determine the minimum number of these engines that must be certified to the Option #2 standards in Table 3 of § 1039.102 as follows:

(i) If all the equipment you produce using 2008 through 2011 model year engines use engines certified to Tier 3 standards under Option #2 of Table 3 of § 1039.102, then all the 2012 model year engines you install must be certified to the Option #2 standards of Table 3 of § 1039.102.

(ii) If you produce equipment using 2008 through 2011 model year engines with some engines certified to Option #1 standards of Table 3 of § 1039.102 and some engines certified to Tier 3 standards under Option #2 standards of Table 3 of § 1039.102, calculate the minimum number of 2012 model year engines you must install that are certified to the Option #2 standards of Table 3 of § 1039.102 from the following equation:

Code of Federal Regulations

Minimum number = [(T-O1−F)/(T−F)−0.05] × P

Where:

T = The total number of 2008-2010 model year engines at or above 37 kW and below 56 kW that you use in equipment you produce.

O1 = The number of engines from the 2008-2010 model years certified under Option #1 of Table 3 of § 1039.102 that you use in equipment you produce.

F = The number of 2008-2010 model year engines at or above 37 kW and below 56 kW that you use in equipment you produce under the flexibility provisions of § 1039.625.

P = The total number of 2012 model year engines at or above 37 kW and below 56 kW that you use in equipment you produce.

(2) As needed for the calculation required by this paragraph (f), keep records of all equipment you produce using 2008-2012 model year engines at or above 37 kW and below 56 kW. If you fail to keep these records, you may not use any 2012 model year engines certified to Option #1 standards in your equipment.

(3) If you fail to comply with the provisions of this paragraph (f), then using 2012 model year engines certified under Option #1 of Table 3 of § 1039.102 (or certified to less stringent standards) in such equipment violates the prohibitions in § 1068.101(a)(1).

(g) Alternate FEL caps. You may certify a limited number of engines from your U.S.-directed production volume to the FEL caps in Table 1 of this section instead of the otherwise applicable FEL caps in § 1039.101(d)(1), § 1039.102(e), or § 1039.102(g)(2), subject to the following provisions:

(1) The provisions of this paragraph (g) apply during the model years shown in Table 1 of this section. During this period, the number of engines certified to the FEL caps in Table 1 of this section must not exceed 20 percent in any single model year in each power category. The sum of percentages over the four-year period must not exceed a total of 40 percent in each power category. If you certify an engine under an alternate FEL cap in this paragraph (g) for any pollutant, count it toward the allowed percentage of engines certified to the alternate FEL caps.

(2) If your engine is not certified to transient emission standards under the provisions of § 1039.102(a)(1)(iii), you must adjust your FEL upward by a temporary compliance adjustment factor (TCAF) before calculating your negative emission credits under § 1039.705, as follows:

(i) The temporary compliance adjustment factor for NOX is 1.1.

(ii) The temporary compliance adjustment factor for PM is 1.5.

(iii) The adjusted FEL (FELadj) for calculating emission credits is determined from the steady-state FEL (FELss) using the following equation:

Code of Federal Regulations

FELadj = (FELss) × (TCAF)

(iv) The unadjusted FEL (FELss) applies for all purposes other than credit calculation.

(3) These alternate FEL caps may not be used for phase-in engines.

(4) Do not apply TCAFs to gaseous emissions for phase-out engines that you certify to the same numerical standards (and FELs if the engines are certified using ABT) for gaseous pollutants as you certified under the Tier 3 requirements of 40 CFR part 89.

Table 1 of § 1039.104 —Alternate FEL Caps

Maximum engine power	PM FEL cap, g/kW-hr	Model years for thealternate PM FEL cap	NOX FEL cap, g/kW-hr	Model years for the alternate NOX FEL cap
19 ≤ kW < 56	0.30	1 2012-2015
56 ≤ kW < 130 2	0.30	2012-2015	3.8	3 2012-2015
130 ≤ kW ≤ 560	0.20	2011-2014	3.8	4 2011-2014
kW > 560 5	0.10	2015-2018	3.5	2015-2018
1 For manufacturers certifying engines under Option #1 of Table 3 of § 1039.102 , these alternate FEL caps apply to all 19-56 kW engines for model years from 2013 through 2016 instead of in the years indicated in this table. For manufacturers certifying engines under Option #2 of Table 3 of § 1039.102 , these alternate FEL caps do not apply to 19-37 kW engines except in model years 2013 to 2015.
2 For engines below 75 kW, the FEL caps are 0.40 g/kW-hr for PM emissions and 4.4 g/kW-hr for NOX emissions.
3 For manufacturers certifying engines in this power category using a percentage phase-in/phase-out approach instead of the alternate NOX standards of § 1039.102(e)(1) , the alternate NOX FEL cap in the table applies only in the 2014-2015 model years if certifying under § 1039.102(d)(1) , and only in the 2015 model year if certifying under (1039.102(d)(2).
4 For manufacturers certifying engines in this power category using the percentage phase-in/phase-out approach instead of the alternate NOX standard of § 1039.102(e)(2) , the alternate NOX FEL cap in the table applies only for the 2014 model year.
5 For engines above 560 kW, the provision for alternate NOX FEL caps is limited to generator-set engines. For example, if you produce 1,000 generator-set engines above 560 kW in 2015, up to 200 of them may be certified to the alternate NOX FEL caps.

(5) You may certify engines under this paragraph (g) without regard to whether or not the engine family's FEL is at or below the otherwise applicable FEL cap. For example, a 200 kW engine certified to the NOX NMHC standard of § 1039.102(e)(3) with an FEL equal to the FEL cap of 2.8 g/kW-hr may be certified under this paragraph (g) and count toward the sales limit specified in paragraph (g)(1) of this section.

(h) Delayed compliance with labeling requirements. Before the 2011 model year, you may omit the dates of manufacture from the emission control information label as specified in § 1039.135(c)(6) if you keep those records and provide them to us upon request.

Code of Federal Regulations

[69 FR 39213, June 29, 2004, as amended at 70 FR 40462, July 13, 2005; 72 FR 53130, Sept. 18, 2007; 75 FR 22988, Apr. 30, 2010; 75 FR 68461, Nov. 8, 2010]