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 §89.602-96), and this part. Compliance with regulations under this subpart does not relieve any person or entity from compliance with other applicable provisions of the Clean Air Act.

(b) Regulations prescribing further procedures for the importation of nonroad engines and nonroad vehicles and equipment into the customs territory of the United States, as defined in 19 U.S.C. 1202, are set forth in U.S. Bureau of Customs regulations.

(c) For the purposes of this subpart, the term "nonroad engine" includes all nonroad engines incorporated into nonroad equipment or nonroad vehicles at the time they are imported or offered for import into the United States.

§ 89.602-96 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the current date is within the effective period as specified on the certificate of conformity, and which has not been withdrawn, superseded, voided, suspended, revoked, or otherwise rendered invalid.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 §89.605-96 or § 89.609-96. Day one of the hold period is the first working day (see definition below) after the Manufacturers Operations Division of EPA receives a complete and valid application for final admission.

Independent commercial importer (ICI). An importer who is not an original en

gine 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 § 89.605–96 or § 89.609-96.

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 § 89.123-96.

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

(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 § 89.611-96 of this subpart. For a nonroad engine imported pursuant to § 89.605-96, 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 §89.60596; or

(2) The nonroad engine is modified and emission tested in accordance with the provisions of § 89.609-96 and the ICI has complied with all other requirements of § 89.609–96; or

(3) The nonroad engine is exempted or excluded under § 89.611-96.

(d) The ICI must submit to the Manufacturers Operations 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 §89.605-96 or § 89.60996. In addition, the ICI must submit to the Manufacturers Operations Division a copy of all approved production changes implemented pursuant to § 89.605-96 or subpart B of this part. Documentation submitted pursuant to

this paragraph must be provided to the Manufacturers Operations Division within 10 working days of approval of the certification application (or production change) by the Certification Division of EPA.

§ 89.604-96 Conditional admission.

(a) A nonroad engine offered for importation under $89.605-96 or § 89.609-96 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 §89.605-96 or §89.609–96. 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 §89.605-96 or $89.609-96); 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

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under §89.605-96 or §89.609-96. The period of conditional admission may not exceed 120 days. Nonroad engines imported under $89.605-96 or $89.609-96 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 §89.605-96 or § 89.60996, 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 § 89.605-96 or § 89.609–96, 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 $89.609-96 as of the transfer date. The transferee ICI must comply with all the requirements of $89.603-96, § 89.604-96, and either §89.605-96 or § 89.609-96, 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 Manufacturers Operations 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 §89.609-96 at

the time of assuming such responsibility. The ICI must comply with all the requirements of § 89.603-96, § 89.604-96, and either §89.605-96 or §89.609–96, 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 Manufacturers Operations Division of EPA within 10 working days of the assumption of that responsibility.

§ 89.605-96 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 § 89.604–96(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 (OEM) that the OEM 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 Manufacturers Operations Division of EPA notification by the ICI of any production changes already implemented by the OEM 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 ad

justable 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 both the Manufacturers Operations and Certification Divisions 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 § 89.610-96 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 § 89.605-96(c);

(10) An attestation by the ICI that all requirements of § 89.607-96 and §89.61096 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 $89.605-96(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 Manufacturers Operations 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 Manufacturers Operations 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/or 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.

§ 89.606-96 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 § 89.607-96, 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– 96; 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