entity, are disqualified as small refiners, except this shall not apply
in the case of a merger between two previously approved small refiners.
If disqualification occurs, the refiner shall notify EPA in writing no
later than 20 days following this disqualifying event.
    (ii) Except as provided under paragraph (b)(1)(iii) of this
section, any refiner whose status changes under this paragraph (b)
shall meet the applicable standards of Sec.  80.1230 within a period of
up to 30 months of the disqualifying event for all of its refineries.
However, such period shall not extend beyond December 31, 2014.
    (iii) A refiner may apply to EPA for an additional six months to
comply with the standards of Sec.  80.1230 if more than 30 months will
be required for the necessary engineering, permitting, construction,
and start-up work to be completed. Such applications must include
detailed technical information supporting the need for additional time.
EPA will base its decision to approve additional time on the
information provided by the refiner and on other relevant information.
In no case will EPA extend the compliance date beyond December 31,
2014.
    (iv) During the period of time of up to 30 months provided under
paragraph (b)(1)(ii) of this section, and any extension provided under
paragraph (b)(1)(iii) of this section, the refiner may not generate
gasoline benzene credits under Sec.  80.1275 or Sec.  80.1290.
    (2) An approved small refiner per Sec.  80.1340 may elect to meet
the requirements of Sec.  80.1230 applicable to non-small refiners by
notifying EPA in writing no later than November 15 prior to the year
that the change will occur. Any refiner whose status changes under this
paragraph (b)(2) shall meet the requirements for non-small refiners
under Sec.  80.1230 beginning with the first averaging period
subsequent to the status change.

Sec.  80.1340  How does a refiner obtain approval as a small refiner?

    (a) Applications for small refiner status must be submitted to EPA
by December 31, 2007.
    (b) Applications for small refiner status must be sent to: U.S.
EPA, Attn: MSAT2 Benzene (6406J), 1200 Pennsylvania Ave., NW.,
Washington, DC 20460. For commercial delivery: U.S. EPA Attn: MSAT2
Benzene (6406J), 501 3rd Street, NW., Washington, DC 20001.
    (c) The small refiner status application must contain the following
information for the company seeking small refiner status, and for all
subsidiary companies, all parent companies, all subsidiaries of the
parent companies, and all joint venture partners:
    (1) Employees. (i) A listing of the names and addresses of each
location where any employee worked during the 12 months preceding
January 1, 2006;
    (ii) The average number of employees at each location based upon
the number of employees for each pay period for the 12 months preceding
January 1, 2006; and
    (iii) The type of business activities carried out at each location.
    (iv) In the case of a refiner that reactivates a refinery that it
previously owned and operated and that was shut down or non-operational
between January 1, 2005, and January 1, 2006, include the following:
    (A) A listing of the name and address of each location where any
employee of the refiner worked since the refiner acquired or
reactivated the refinery;
    (B) The average number of employees at any such reactivated
refinery during each calendar year since the refiner reactivated the
refinery; and
    (C) The type of business activities carried out at each location.
    (vi) For joint ventures, the total number of employees includes the
combined employee count of all corporate entities in the venture.
    (vii) For government-owned refiners, the total employee count
includes all government employees.
    (2) Crude oil capacity. (i) The total corporate crude oil capacity
of each refinery as reported to the Energy Information Administration
(EIA) of the U.S. Department of Energy (DOE), for the period January 1,
2005, through December 31, 2005.
    (ii) The information submitted to EIA is presumed to be correct. In
cases where a company disagrees with this information, the company may
petition EPA with appropriate data to correct the record when the
company submits its application for small refiner status.
    (3) The type of business activity carried out at each location.
    (4) For each refinery, an indication of the small refiner option(s)
intended to be utilized at the refinery.
    (5) A letter signed by the president, chief operating or chief
executive officer of the company, or his/her designee, stating that the
information contained in the application is true to the best of his/her
knowledge, and that the company owned the refinery as of January 1,
2006.
    (6) Name, address, phone number, facsimile number, and E-mail
address of a corporate contact person.
    (d) Approval of a small refiner status application will be based on
all information submitted under paragraph (c) of this section and any
other relevant information.
    (e) EPA will notify a refiner of approval or disapproval of small
refiner status by letter.
    (1) If approved, all refineries of the refiner may defer meeting
the standard specified in Sec.  80.1230 until the annual averaging
period beginning January 1, 2015.
    (2) If disapproved, all refineries of the refiner must meet the
standard specified in Sec.  80.1230 beginning with the annual averaging
period beginning January 1, 2011.
    (f) If EPA finds that a refiner provided false or inaccurate
information on its application for small refiner status, upon notice
from EPA, the refiner's small refiner status will be void ab initio.
    (g) Prior to January 1, 2014, and upon notification to EPA, an
approved small refiner per this section may withdraw its status as a
small refiner. Effective on January 1 of the year following such
notification, the small refiner will become subject to the standards at
Sec.  80.1230.

Sec.  80.1342  What compliance options are available to small refiners
under this subpart?

    (a) A refiner that has been approved as a small refiner under Sec.
80.1340 may--
    (1) Defer meeting the standard specified in section Sec.  80.1230
until the annual averaging period January 1, 2015; or
    (2) Meet the standard specified in Sec.  80.1230 beginning January
1 of any of

the following annual averaging periods: 2007, 2008, 2009, 2010, 2011,
2012, 2013, and 2014.
    (b) The provisions of paragraph (a) of this section shall apply
separately for each of an approved small refiner's refineries.

Sec.  80.1344  What provisions are available to a large refiner that
acquires one or more of a small refiner's refineries?

    (a) In the case of a refiner without approved small refiner status
that acquires a refinery from an approved small refiner per Sec.
80.1340, the small refiner provisions of the gasoline benzene program
of this subpart may continue to apply to the acquired refinery for a
period of up to 30 months from the date of acquisition of the refinery.
In no case shall this period extend beyond December 31, 2014.
    (b) A refiner may apply to EPA for up to an additional six months
to comply with the standards of Sec.  80.1230 for the acquired refinery
if more than 30 months would be required for the necessary engineering,
permitting, construction, and start-up work to be completed. Such
applications must include detailed technical information supporting the
need for additional time. EPA will base a decision to approve
additional time on information provided by the refiner and on other
relevant information. In no case shall this period extend beyond
December 31, 2014.
    (c) A refiner that acquires a refinery from an approved small
refiner per Sec.  80.1340 shall notify EPA in writing no later than 20
days following the acquisition.

Sampling, Testing and Retention Requirements

Sec.  80.1347  What are the sampling and testing requirements for
refiners and importers?

    (a) Sample and test each batch of gasoline. Refiners and importers
shall collect a representative sample from each batch of gasoline
produced or imported. Each sample shall be tested in accordance the
methodology specified at Sec.  80.46(e) to determine its benzene
concentration for compliance with the requirements of this subpart.
    (b) Batch numbering. The batch numbering convention of Sec.
80.365(b)(2) shall apply to batches of conventional gasoline.
    (c) The requirements of this section apply to any refiner or
importer subject to the requirements of this subpart, including those
generating early credits per Sec.  80.1275, all non-small refiners and
importers beginning January 1, 2011, and small refiners beginning
January 1, 2015.

Sec.  80.1348  What gasoline sample retention requirements apply to
refiners and importers?

    The gasoline sample retention requirements specified in subpart H
of this part for the gasoline sulfur provisions apply for the purpose
of complying with the requirements of this subpart, except that in
addition to including the sulfur test result as provided by Sec.
80.335(a)(4)(ii), the refiner, importer, or independent laboratory
shall also include with the retained sample the test result for benzene
as conducted pursuant to Sec.  80.46(e).

Recordkeeping and Reporting Requirements

Sec.  80.1350  What records must be kept?

    (a) General requirements. The recordkeeping requirements specified
in Sec.  80.74 and Sec.  80.104, as applicable, apply for the purpose
of complying with the requirements of this subpart, however, duplicate
records are not required.
    (b) Additional records that refiners and importers shall keep.
Beginning January 1, 2007, any refiner for each of its refineries, and
any importer for the gasoline it imports, shall keep records that
include the following information (including any supporting
calculations as applicable):
    (1) Its compliance benzene value per Sec.  80.1240, and the
calculations used to obtain that value.
    (2) Its benzene baseline value, per Sec.  80.1280, if the refinery
or importer submitted a benzene baseline application to EPA per Sec.
80.1285;
    (3) The number of early benzene credits generated under Sec.
80.1275, separately by year of generation;
    (4) The number of early benzene credits obtained, separately by
generating refinery and year of generation;
    (5) The number of valid credits in possession of the refinery or
importer at the beginning of each averaging period, separately by
generating facility and year of generation;
    (6) The number of standard credits generated by the refinery or
importer under Sec.  80.1290, separately by transferor (if applicable),
and by year of generation;
    (7) The number of credits used, separately by generating facility
and year of generation;
    (8) If any credits were obtained from, or transferred to, other
parties, for each other party, its name, its EPA refinery or importer
registration number, and the number of credits obtained from, or
transferred to, the other party;
    (9) The number of credits that expired at the end of the averaging
period, separately by generating facility and year of generation;
    (10) The number of credits that will be carried over into the
subsequent averaging period, separately by generating facility and year
of generation;
    (11) Contracts or other commercial documents that establish each
transfer of credits from the transferor to the transferee; and
    (12) A copy of all reports submitted to EPA under Sec. Sec.
80.1352 and 80.1354, however, duplicate records are not required.
    (c) Length of time records shall be kept. The records required by
this section shall be kept for five years from the end of the annual
averaging period during which they were created, or seven years for
records pertaining to credits traded to a small refiner in accordance
with Sec.  80.1295(d)(3), except where longer record retention is
required elsewhere in this subpart.
    (d) Make records available to EPA. On request by EPA, the records
specified in this section shall be provided to the Administrator. For
records that are electronically generated or maintained, the equipment
and software necessary to read the records shall be made available, or
upon approval by EPA, electronic records shall be converted to paper
documents which shall be provided to the Administrator.

Sec.  80.1352  What are the pre-compliance reporting requirements for
the gasoline benzene program?

    (a) Except as provided in paragraph (c) of this section, a refiner
for each of its refineries shall submit the following information to
EPA beginning June 1, 2008, and annually thereafter through June 1,
2011, or through June 1, 2015, for small refiners:
    (1) Changes to the information submitted in the company's
registration;
    (2) Changes to the information submitted for any refinery or import
facility registration;
    (3) Gasoline production. (i) An estimate of the average daily
volume (in gallons) of gasoline produced at each refinery. This
estimate shall include RFG, RBOB, conventional gasoline and
conventional gasoline blendstock that becomes finished gasoline solely
upon the addition of oxygenate but shall exclude gasoline exempted
pursuant to Sec.  80.1235;
    (ii) These volume estimates must be provided for the periods of
June 1, 2007, through December 31, 2007, and calendar years 2008, 2009
and 2010.
    (4) Benzene concentration. An estimate of the average gasoline
benzene

concentration corresponding to the time periods specified in paragraph
(a)(3) of this section.
    (5) ABT Participation. If the refinery is expecting to participate
in the credit trading program under Sec.  80.1275 and/or Sec.  80.1290,
the actual or estimated, as applicable, numbers of early credits and
standard credits expected to be generated and/or used each year through
2015.
    (6) Information on any project schedule by quarter of known or
projected completion date by the stage of the project, for example,
following the five project phases described in EPA's June 2002 Highway
Diesel Progress Review report (EPA420-R-02-016, http://www.epa.gov/otaq/regs/hd2007/420r02016.pdf
): Strategic planning, Planning and

front-end engineering, Detailed engineering and permitting, Procurement
and Construction, and Commissioning and startup;
    (7) Basic information regarding the selected technology pathway for
compliance (e.g., precursor re-routing or other technologies, revamp
vs. grassroots, etc.);
    (8) Whether capital commitments have been made or are projected to
be made.
    (b) The pre-compliance reports due in 2008 and succeeding years
must provide an update of the progress in each of these areas and
actual values where available.
    (c) The pre-compliance reporting requirements of this section do
not apply to refineries exempted under the provisions of Sec.
80.1230(c)(1).

Sec.  80.1354  What are the reporting requirements for the gasoline
benzene program?

    (a) Beginning with the 2011 annual averaging period, or the 2015
annual averaging period for small refiners, and continuing for each
averaging period thereafter, every refiner, for each of its refineries,
and every importer shall submit to EPA the information required in this
section, and such other information as EPA may require.
    (b) Beginning with the 2007 annual averaging period for refiners
generating early credits pursuant to Sec.  80.1275 or Sec.  80.1290(b)
for approved small refiners, every refiner for each of its refineries
shall submit to EPA the information required in this section, and such
other information as EPA may require.
    (c) Refiner and importer annual reports. Any refiner, for each of
its refineries, and any importer for the gasoline it imports, shall
submit a Gasoline Benzene Report containing the following information:
    (1) Benzene volume percent and volume of any RFG, RBOB, and
conventional gasoline, separately by batch, produced by the refinery or
imported, and the sum of the volumes and the volume-weighted benzene
concentration, in volume percent;
    (2) The annual average benzene concentration, per Sec.  80.1240,
Sec.  80.1275 or Sec.  80.1290, as applicable;
    (3) Any benzene deficit from the previous reporting period, per
Sec.  80.1230(b);
    (4) The number of banked benzene credits from the previous
reporting period;
    (5) The number of benzene credits generated under Sec.  80.1275, if
applicable;
    (6) The number of benzene credits generated under Sec.  80.1290, if
applicable;
    (7) The number of benzene credits transferred to the refinery or
importer, per Sec.  80.1295(c), and the cost of the credits, if
applicable;
    (8) The number of benzene credits transferred from the refinery or
importer, per Sec.  80.1295(c), and the price of the credits, if
applicable;
    (9) The number of benzene credits terminated or expired;
    (10) The compliance benzene value specified in Sec.  80.1240;
    (11) The number of banked benzene credits;
    (12) Projected credit generation through compliance year 2015; and
    (13) Projected credit use through compliance year 2015.
    (d) EPA may require submission of additional information to verify
compliance with the requirements of this subpart.
    (e) The report required by paragraph (a) of this section shall be:
    (1) Submitted on forms and following procedures specified by the
Administrator of EPA;
    (2) Submitted to EPA by the last day of February each year for the
prior calendar year averaging period; and
    (3) Signed and certified as correct by the owner or a responsible
corporate officer of the refiner or importer.

Attest Engagements

Sec.  80.1375  What are the attest engagement requirements for gasoline
benzene compliance?

    In addition to the requirements for attest engagements that apply
to refiners and importers under Sec. Sec.  80.125 through 80.130,
80.410, and 80.1030, the attest engagements for refiners and importers
must include the following procedures and requirements each year.
    (a) EPA early credit generation baseline years' reports.
    (1) Obtain and read a copy of the refinery's or importer's annual
reports and batch reports filed with EPA for 2004 and 2005 which
contain gasoline benzene and gasoline volume information.
    (2) Agree the yearly volumes of gasoline and benzene concentration,
in volume percent and benzene gallons, reported to EPA in the reports
specified in paragraph (a)(1) of this section with the inventory
reconciliation analysis under Sec.  80.128.
    (3) Verify that the information in the refinery's or importer's
batch reports filed with EPA under Sec. Sec.  80.75 and 80.105, and any
laboratory test results, agree with the information contained in the
reports specified in paragraph (a)(1) of this section.
    (4) Calculate the average benzene concentration for all of the
refinery's or importer's gasoline volume over 2004 and 2005 and verify
that those values agree with the values reported to EPA per Sec.
80.1285.
    (b) Baseline for early credit generation. For the first attest
reporting period following approval of a benzene baseline:
    (1) Obtain the EPA benzene baseline approval letter for the
refinery to determine the refinery's applicable benzene baseline under
Sec.  80.1285.
    (2) Obtain a written representation from the company representative
stating the benzene value used as the refinery's baseline and agree
that number to paragraph (b)(1) of this section and to the reports to
EPA.
    (c) Early credit generation. The following procedures shall be
completed for a refinery or importer that generates early benzene
credits per Sec.  80.1275:
    (1) Obtain the baseline benzene concentration and gasoline volume
from paragraph (a)(4) of this section.
    (2) Obtain the annual benzene report per Sec.  80.1354.
    (3) If the benzene value under paragraph (c)(2) of this section is
at least 10 percent less than value in paragraph (c)(1) of this
section, compute and report as a finding the difference according to
Sec.  80.1275.
    (4) Compute and report as a finding the total number of benzene
credits generated by multiplying the value calculated in paragraph
(c)(3) of this section by the volume of gasoline listed in the report
specified in paragraph (c)(2) of this section, and agree this number
with the number reported to EPA.
    (d) Standard credit generation. The following procedures shall be
completed for a refinery or importer that generates benzene credits per
Sec.  80.1290:

    (1) Obtain the annual average benzene value from the annual benzene
report per Sec.  80.1285.
    (2) If the annual average benzene value under paragraph (d)(1) of
this section is less than 0.62 percent by volume, compute and report as
a finding the difference according to Sec.  80.1290.
    (3) Compute and report as a finding the total number of benzene
credits generated by multiplying the value calculated in paragraph
(d)(2) of this section by the volume of gasoline listed in the report
specified in paragraph (d)(1) of this section, and agree this number
with the number reported to EPA.
    (e) Credits required. The following attest procedures shall be
completed for refineries and importers:
    (1) Obtain the annual average benzene concentration and volume from
the annual benzene report per Sec.  80.1285.
    (2) If the value in paragraph (e)(1) of this section is greater
than 0.62 percent by volume, compute and report as a finding the
difference between 0.62 percent by volume and the value in paragraph
(e)(1) of this section.
    (3) Compute and report as a finding the total benzene credits
required by multiplying the value in paragraph (e)(2) of this section
times the volume of gasoline in paragraph (e)(1) of this section, and
agree with the report to EPA.
    (4) Obtain the refiner's or importer's representation as to the
portion of the deficit under paragraph (e)(3) of this section that was
resolved with credits, or that was carried forward as a deficit under
Sec.  80.1230(b), and agree with the report to EPA.
    (f) Credit purchases and sales. The following attest procedures
shall be completed for a refinery or importer that is a transferor or
transferee of credits during an averaging period:
    (1) Obtain contracts or other documents for all credits transferred
to another refinery or importer during the year being reviewed; compute
and report as a finding the number and year of creation of credits
represented in these documents as being transferred; and agree with the
report to EPA.
    (2) Obtain contracts or other documents for all credits received
during the year being reviewed; compute and report as a finding the
number and year of creation of credits represented in these documents
as being received; and agree with the report to EPA.
    (g) Credit reconciliation. The following attest procedures shall be
completed each year credits were in the refiner's or importer's
possession at any time during the year:
    (1) Obtain the credits remaining or the credit deficit from the
previous year from the refiner's or importer's report to EPA for the
previous year.

    (2) Compute and report as a finding the net credits remaining at
the conclusion of the year being reviewed by totaling:
    (i) Credits remaining from the previous year; plus
    (ii) Credits generated under paragraphs (c) and (d) of this
section; plus
    (iii) Credits purchased under paragraph (f) of this section; minus
    (iv) Credits sold under paragraph (f) of this section; minus
    (v) Credits used under paragraphs (e) of this section; minus
    (vi) Credits expired; minus
    (vii) Credit deficit from the previous year.
    (3) Agree the credits remaining or the credit deficit at the
conclusion of the year being reviewed with the report to EPA.
    (4) If the refinery or importer had a credit deficit for both the
previous year and the year being reviewed, report this fact as a
finding.

Violations and Penalties

Sec.  80.1400  What acts are prohibited under the gasoline benzene
program?

    No person shall:
    (a) Averaging violation. Produce or import gasoline subject to this
subpart that does not comply with the applicable benzene average
standard requirement under Sec.  80.1230.
    (b) Causing an averaging violation. Cause another person to commit
an act in violation of paragraph (a) of this section.
    (c) Fail to meet the recordkeeping and reporting requirements, or
any other requirements of this subpart.

Sec.  80.1405  What evidence may be used to determine compliance with
the prohibitions and requirements of this subpart and liability for
violations of this subpart?

    (a) Compliance with the benzene standard of this subpart shall be
determined based on the benzene concentration of the gasoline, measured
using the methodologies specified in Sec.  80.46(e). Any evidence or
information, including the exclusive use of such evidence or
information, may be used to establish the benzene concentration of the
gasoline if the evidence or information is relevant to whether the
benzene concentration of the gasoline would have been in compliance
with the standard if the appropriate sampling and testing methodologies
had been correctly performed. Such evidence may be obtained from any
source or location and may include, but is not limited to, test results
using methods other than those specified in Sec.  80.46(e), business
records and commercial documents.
    (b) Determinations of compliance with the requirements of this
subpart other than the benzene standard, and determinations of
liability for any violation of this subpart, may be based on
information from any source or location. Such information may include,
but is not limited to, business records and commercial documents.

Sec.  80.1410  Who is liable for violations under the gasoline benzene
program?

    (a) Persons liable for violations of prohibited acts.
    (1) Averaging violation. Any refiner or importer that violates
Sec.  80.1400(a) is liable for a violation of Sec.  80.1400(a).
    (2) Causing an averaging violation. Any person that causes another
party to violate Sec.  80.1400(a) is liable for a violation of Sec.
80.1400(b).
    (3) Parent corporation liability. Any parent corporation is liable
for any violations of this subpart that are committed by any of its
wholly-owned subsidiaries.
    (4) Joint venture and joint owner liability. Each partner to a
joint venture, or each owner of a facility owned by two or more owners,
is jointly and severally liable for any violation of this subpart that
occurs at the joint venture facility or facility that is owned by the
joint owners, or that is committed by the joint venture operation or
any of the joint owners of the facility.
    (b) Persons liable for failure to meet other provisions of this
subpart.
    (1) Any person that fails to meet a provision of this subpart not
addressed in paragraph (a) of this section is liable for a violation of
that provision.
    (2) Any person that caused another person to fail to meet a
requirement of this subpart not addressed in paragraph (a) of this
section, is liable for causing a violation of that provision.

Sec.  80.1415  What penalties apply under the gasoline benzene program?

    (a) Any person liable for a violation under Sec.  80.1410 is
subject to civil penalties as specified in sections 205 and 211(d) of
the Clean Air Act for every day of each such violation and the amount
of economic benefit or savings resulting from each violation.
    (b) Any person liable under Sec.  80.1400(a) for a violation of the
applicable benzene average standard or causing another person to
violate the requirement during any averaging period, is subject to a
separate day of violation for each and every day in the averaging
period. Any person liable

under Sec.  80.1410(b) for a failure to fulfill any requirement of
credit generation, transfer, use, banking, or deficit carry-forward
correction is subject to a separate violation for each and every day in
the averaging period in which invalid credits are generated, banked,
transferred or used.
    (c) Any person liable under Sec.  80.1410(b) for failure to meet,
or causing a failure to meet, a provision of this subpart is liable for
a separate day of violation for each and every day such provision
remains unfulfilled.

Foreign Refiners

Sec.  80.1420  What are the additional requirements under this subpart
for gasoline produced at foreign refineries?

    (a) Definitions. (1) A foreign refinery is a refinery that is
located outside the United States, the Commonwealth of Puerto Rico, the
Virgin Islands, Guam, American Samoa, and the Commonwealth of the
Northern Mariana Islands (collectively referred to in this section as
``the United States'').
    (2) A foreign refiner is a person that meets the definition of
refiner under Sec.  80.2(i) for a foreign refinery.
    (3) Benzene-FRGAS means gasoline produced at a foreign refinery
that has been assigned an individual refinery benzene baseline under
Sec.  80.1285, has been approved as a small refiner under Sec.
80.1340, or has been granted temporary relief under Sec.  80.1335, and
that is imported into the United States.
    (4) Non-Benzene-FRGAS means
    (i) Gasoline meeting any of the conditions specified in paragraph
(a)(3) of this section that is not imported into the United States.
    (ii) Gasoline meeting any of the conditions specified in paragraph
(a)(3) of this section during a year when the foreign refiner has opted
to not participate in the Benzene-FRGAS program under paragraph (c)(3)
of this section.
    (iii) Gasoline produced at a foreign refinery that has not been
assigned an individual refinery benzene baseline under Sec.  80.1285,
or that has not been approved as a small refiner under Sec.  80.1340,
or that has not been granted temporary relief under Sec.  80.1335.
    (5) Certified Benzene-FRGAS means Benzene-FRGAS the foreign refiner
intends to include in the foreign refinery's benzene compliance
calculations under Sec.  80.1240 or credit calculations under Sec.
80.1275 and does include in these calculations when reported to EPA.
    (7) Non-Certified Benzene-FRGAS means Benzene-FRGAS that is not
Certified Benzene-FRGAS.
    (b) Baseline for early credits. For any foreign refiner to obtain
approval under the benzene foreign refiner program of this subpart for
any refinery in order to generate early credits under Sec.  80.1275, it
must apply for approval under the applicable provisions of this
subpart.
    (1) The refiner shall follow the procedures, applicable to volume
baselines in Sec. Sec.  80.91 through 80.93 to establish the volume of
gasoline that was produced at the refinery and imported into the United
States during the applicable years for purposes of establishing a
baseline under Sec.  80.1280 for applicable fuels produced for use in
the United States.
    (2) In making determinations for foreign refinery baselines EPA
will consider all information supplied by a foreign refiner, and in
addition may rely on any and all appropriate assumptions necessary to
make such determinations.
    (3) Where a foreign refiner submits a petition that is incomplete
or inadequate to establish an accurate baseline, and the refiner fails
to correct this deficiency after a request for more information, EPA
will not assign an individual refinery baseline.
    (c) General requirements for Benzene-FRGAS foreign refiners. A
foreign refiner of a refinery that is approved under the benzene
foreign refiner program of this subpart must designate each batch of
gasoline produced at the foreign refinery that is exported to the
United States as either Certified Benzene-FRGAS or as Non-Certified
Benzene-FRGAS, except as provided in paragraph (c)(3) of this section.
    (1) In the case of Certified Benzene-FRGAS, the foreign refiner
must meet all requirements that apply to refiners under this subpart.
    (2) In the case of Non-Certified Benzene-FRGAS, the foreign refiner
shall meet all the following requirements:
    (i) The designation requirements in this section;
    (ii) The recordkeeping requirements in this section and in Sec.
80.1350;
    (iii) The reporting requirements in this section and in Sec. Sec.
80.1352 and 80.1354;
    (iv) The product transfer document requirements in this section;
    (v) The prohibitions in this section and in Sec.  80.1400; and
    (vi) The independent audit requirements in this section and in
Sec.  80.1375.
    (3)(i) Any foreign refiner that generates early benzene credits
under Sec.  80.1275 shall designate all Benzene-FRGAS as Certified
Benzene-FRGAS for any year that such credits are generated.
    (ii) Any foreign refiner that has been approved to produce gasoline
subject to the benzene foreign refiner program for a foreign refinery
under this subpart may elect to classify no gasoline imported into the
United States as Benzene-FRGAS provided the foreign refiner notifies
EPA of the election no later than November 1 preceding the beginning of
the next compliance period.
    (iii) An election under paragraph (c)(3)(ii) of this section shall
be for a 12 month compliance period and apply to all gasoline that is
produced by the foreign refinery that is imported into the United
States, and shall remain in effect for each succeeding year unless and
until the foreign refiner notifies EPA of the termination of the
election. The change in election shall take effect at the beginning of
the next annual compliance period.
    (d) Designation, product transfer documents, and foreign refiner
certification. (1) Any foreign refiner of a foreign refinery that has
been approved by EPA to produce gasoline subject to the benzene foreign
refiner program must designate each batch of Benzene-FRGAS as such at
the time the gasoline is produced, unless the refiner has elected to
classify no gasoline exported to the United States as Benzene-FRGAS
under paragraph (c)(3) of this section.
    (2) On each occasion when any person transfers custody or title to
any Benzene-FRGAS prior to its being imported into the United States,
it must include the following information as part of the product
transfer document information:
    (i) Designation of the gasoline as Certified Benzene-FRGAS or as
Non-Certified Benzene-FRGAS; and
    (ii) The name and EPA refinery registration number of the refinery
where the Benzene-FRGAS was produced.
    (3) On each occasion when Benzene-FRGAS is loaded onto a vessel or
other transportation mode for transport to the United States, the
foreign refiner shall prepare a certification for each batch of the
Benzene-FRGAS that meets the following requirements.
    (i) The certification shall include the report of the independent
third party under paragraph (f) of this section, and the following
additional information:
    (A) The name and EPA registration number of the refinery that
produced the Benzene-FRGAS;
    (B) The identification of the gasoline as Certified Benzene-FRGAS
or Non-Certified Benzene-FRGAS;
    (C) The volume of Benzene-FRGAS being transported, in gallons;

    (D) In the case of Certified Benzene-FRGAS:
    (1) The benzene content as determined under paragraph (f) of this
section, and the applicable designations stated in paragraph (d)(2)(i)
of this section; and
    (2) A declaration that the Benzene-FRGAS is being included in the
applicable compliance calculations required by EPA under this subpart.
    (ii) The certification shall be made part of the product transfer
documents for the Benzene-FRGAS.
    (e) Transfers of Benzene-FRGAS to non-United States markets. The
foreign refiner is responsible to ensure that all gasoline classified
as Benzene-FRGAS is imported into the United States. A foreign refiner
may remove the Benzene-FRGAS classification, and the gasoline need not
be imported into the United States, but only if:
    (1) The foreign refiner excludes:
    (i) The volume of gasoline from the refinery's compliance report
under Sec.  80.1354; and
    (ii) In the case of Certified Benzene-FRGAS, the volume of the
gasoline from the compliance report under Sec.  80.1354.
    (2) The foreign refiner obtains sufficient evidence in the form of
documentation that the gasoline was not imported into the United
States.
    (f) Load port independent sampling, testing and refinery
identification. (1) On each occasion that Benzene-FRGAS is loaded onto
a vessel for transport to the United States a foreign refiner shall
have an independent third party:
    (i) Inspect the vessel prior to loading and determine the volume of
any tank bottoms;
    (ii) Determine the volume of Benzene-FRGAS loaded onto the vessel
(exclusive of any tank bottoms before loading);
    (iii) Obtain the EPA-assigned registration number of the foreign
refinery;
    (iv) Determine the name and country of registration of the vessel
used to transport the Benzene-FRGAS to the United States; and
    (v) Determine the date and time the vessel departs the port serving
the foreign refinery.
    (2) On each occasion that Certified Benzene-FRGAS is loaded onto a
vessel for transport to the United States a foreign refiner shall have
an independent third party:
    (i) Collect a representative sample of the Certified Benzene-FRGAS
from each vessel compartment subsequent to loading on the vessel and
prior to departure of the vessel from the port serving the foreign
refinery;
    (ii) Determine the benzene content value for each compartment using
the methodology as specified in Sec.  80.46(e) by one of the following:
    (A) The third party analyzing each sample; or
    (B) The third party observing the foreign refiner analyze the
sample;
    (iii) Review original documents that reflect movement and storage
of the Certified Benzene-FRGAS from the refinery to the load port, and
from this review determine:
    (A) The refinery at which the Benzene-FRGAS was produced; and
    (B) That the Benzene-FRGAS remained segregated from:
    (1) Non-Benzene-FRGAS and Non-Certified Benzene-FRGAS; and
    (2) Other Certified Benzene-FRGAS produced at a different refinery.
    (3) The independent third party shall submit a report:
    (i) To the foreign refiner containing the information required
under paragraphs (f)(1) and (f)(2) of this section, to accompany the
product transfer documents for the vessel; and
    (ii) To the Administrator containing the information required under
paragraphs (f)(1) and (f)(2) of this section, within thirty days
following the date of the independent third party's inspection. This
report shall include a description of the method used to determine the
identity of the refinery at which the gasoline was produced, assurance
that the gasoline remained segregated as specified in paragraph (n)(1)
of this section, and a description of the gasoline's movement and
storage between production at the source refinery and vessel loading.
    (4) The independent third party must:
    (i) Be approved in advance by EPA, based on a demonstration of
ability to perform the procedures required in this paragraph (f);
    (ii) Be independent under the criteria specified in Sec.
80.65(e)(2)(iii); and
    (iii) Sign a commitment that contains the provisions specified in
paragraph (i) of this section with regard to activities, facilities and
documents relevant to compliance with the requirements of this
paragraph (f).
    (g) Comparison of load port and port of entry testing. (1)(i) Any
foreign refiner and any United States importer of Certified Benzene-
FRGAS shall compare the results from the load port testing under
paragraph (f) of this section, with the port of entry testing as
reported under paragraph (o) of this section, for the volume of
gasoline and the benzene content value; except as specified in
paragraph (g)(1)(ii) of this section.
    (ii) Where a vessel transporting Certified Benzene-FRGAS off loads
this gasoline at more than one United States port of entry, and the
conditions of paragraph (g)(2)(i) of this section are met at the first
United States port of entry, the requirements of paragraph (g)(2) of
this section do not apply at subsequent ports of entry if the United
States importer obtains a certification from the vessel owner that
meets the requirements of paragraph(s) of this section, that the vessel
has not loaded any gasoline or blendstock between the first United
States port of entry and the subsequent port of entry.
    (2)(i) The requirements of this paragraph (g)(2) apply if--
    (A) The temperature-corrected volumes determined at the port of
entry and at the load port differ by more than one percent; or
    (B) The benzene content value determined at the port of entry is
higher than the benzene content value determined at the load port, and
the amount of this difference is greater than the reproducibility
amount specified for the port of entry test result by the American
Society of Testing and Materials (ASTM) for the test method specified
at Sec.  80.46(e).
    (ii) The United States importer and the foreign refiner shall treat
the gasoline as Non-Certified Benzene-FRGAS, and the foreign refiner
shall exclude the gasoline volume from its gasoline volumes
calculations and benzene standard designations under this subpart.
    (h) Attest requirements. Refiners, for each annual compliance
period, must arrange to have an attest engagement performed of the
underlying documentation that forms the basis of any report required
under this subpart. The attest engagement must comply with the
procedures and requirements that apply to refiners under Sec. Sec.
80.125 through 80.130, or other applicable attest engagement
provisions, and must be submitted to the Administrator of EPA by August
31 of each year for the prior annual compliance period. The following
additional procedures shall be carried out for any foreign refiner of
Benzene-FRGAS.
    (1) The inventory reconciliation analysis under Sec.  80.128(b) and
the tender analysis under Sec.  80.128(c) shall include Non-Benzene-
FRGAS.
    (2) Obtain separate listings of all tenders of Certified Benzene-
FRGAS and of Non-Certified Benzene-FRGAS, and obtain separate listings
of Certified Benzene-FRGAS based on whether it is small refiner
gasoline, gasoline produced through the use of credits, or other
applicable designation under this subpart. Agree the total volume of
tenders from the listings to the gasoline inventory reconciliation
analysis in Sec.  80.128(b), and to the volumes

determined by the third party under paragraph (f)(1) of this section.
    (3) For each tender under paragraph (h)(2) of this section, where
the gasoline is loaded onto a marine vessel, report as a finding the
name and country of registration of each vessel, and the volumes of
Benzene-FRGAS loaded onto each vessel.
    (4) Select a sample from the list of vessels identified in
paragraph (h)(3) of this section used to transport Certified Benzene-
FRGAS, in accordance with the guidelines in Sec.  80.127, and for each
vessel selected perform the following:
    (i) Obtain the report of the independent third party, under
paragraph (f) of this section, and of the United States importer under
paragraph (o) of this section.
    (A) Agree the information in these reports with regard to vessel
identification, gasoline volumes and benzene content test results.
    (B) Identify, and report as a finding, each occasion the load port
and port of entry benzene content and volume results differ by more
than the amounts allowed in paragraph (g) of this section, and
determine whether the foreign refiner adjusted its refinery
calculations as required in paragraph (g) of this section.
    (ii) Obtain the documents used by the independent third party to
determine transportation and storage of the Certified Benzene-FRGAS
from the refinery to the load port, under paragraph (f) of this
section. Obtain tank activity records for any storage tank where the
Certified Benzene-FRGAS is stored, and pipeline activity records for
any pipeline used to transport the Certified Benzene-FRGAS, prior to
being loaded onto the vessel. Use these records to determine whether
the Certified Benzene-FRGAS was produced at the refinery that is the
subject of the attest engagement, and whether the Certified Benzene-
FRGAS was mixed with any Non-Certified Benzene-FRGAS, Non-Benzene-
FRGAS, or any Certified Benzene-FRGAS produced at a different refinery.
    (5) Select a sample from the list of vessels identified in
paragraph (h)(3) of this section used to transport Certified and Non-
Certified Benzene-FRGAS, in accordance with the guidelines in Sec.
80.127, and for each vessel selected perform the following:
    (i) Obtain a commercial document of general circulation that lists
vessel arrivals and departures, and that includes the port and date of
departure of the vessel, and the port of entry and date of arrival of
the vessel.
    (ii) Agree the vessel's departure and arrival locations and dates
from the independent third party and United States importer reports to
the information contained in the commercial document.
    (6) Obtain separate listings of all tenders of Non-Benzene-FRGAS,
and perform the following:
    (i) Agree the total volume and benzene content of tenders from the
listings to the gasoline inventory reconciliation analysis in Sec.
80.128(b).
    (ii) Obtain a separate listing of the tenders under this paragraph
(h)(6) where the gasoline is loaded onto a marine vessel. Select a
sample from this listing in accordance with the guidelines in Sec.
80.127, and obtain a commercial document of general circulation that
lists vessel arrivals and departures, and that includes the port and
date of departure and the ports and dates where the gasoline was off
loaded for the selected vessels. Determine and report as a finding the
country where the gasoline was off loaded for each vessel selected.
    (7) In order to complete the requirements of this paragraph (h) an
auditor shall:
    (i) Be independent of the foreign refiner;
    (ii) Be licensed as a Certified Public Accountant in the United
States and a citizen of the United States, or be approved in advance by
EPA based on a demonstration of ability to perform the procedures
required in Sec. Sec.  80.125 through 80.130 and this paragraph (h);
and
    (iii) Sign a commitment that contains the provisions specified in
paragraph (i) of this section with regard to activities and documents
relevant to compliance with the requirements of Sec. Sec.  80.125
through 80.130 and this paragraph (h).
    (i) Foreign refiner commitments. Any foreign refiner shall commit
to and comply with the provisions contained in this paragraph (i) as a
condition to being approved for as a foreign refiner under this
subpart.
    (1) Any United States Environmental Protection Agency inspector or
auditor must be given full, complete and immediate access to conduct
inspections and audits of the foreign refinery.
    (i) Inspections and audits may be either announced in advance by
EPA, or unannounced.
    (ii) Access will be provided to any location where:
    (A) Gasoline is produced;
    (B) Documents related to refinery operations are kept;
    (C) Gasoline or blendstock samples are tested or stored; and
    (D) Benzene-FRGAS is stored or transported between the foreign
refinery and the United States, including storage tanks, vessels and
pipelines.
    (iii) Inspections and audits may be by EPA employees or contractors
to EPA.
    (iv) Any documents requested that are related to matters covered by
inspections and audits must be provided to an EPA inspector or auditor
on request.
    (v) Inspections and audits by EPA may include review and copying of
any documents related to:
    (A) Refinery baseline establishment, if applicable, including the
volume and benzene content of gasoline; transfers of title or custody
of any gasoline or blendstocks whether Benzene-FRGAS or Non-Benzene-
FRGAS, produced at the foreign refinery during the period January 1,
2004 through December 31, 2005, and any work papers related to refinery
baseline establishment;
    (B) The volume and benzene content of Benzene-FRGAS;
    (C) The proper classification of gasoline as being Benzene-FRGAS or
as not being Benzene-FRGAS, or as Certified Benzene-FRGAS or as Non-
Certified Benzene-FRGAS, and all other relevant designations under this
subpart;
    (D) Transfers of title or custody to Benzene-FRGAS;
    (E) Sampling and testing of Benzene-FRGAS;
    (F) Work performed and reports prepared by independent third
parties and by independent auditors under the requirements of this
section, including work papers; and
    (G) Reports prepared for submission to EPA, and any work papers
related to such reports.
    (vi) Inspections and audits by EPA may include taking samples of
gasoline, gasoline additives or blendstock, and interviewing employees.
    (vii) Any employee of the foreign refiner must be made available
for interview by the EPA inspector or auditor, on request, within a
reasonable time period.
    (viii) English language translations of any documents must be
provided to an EPA inspector or auditor, on request, within 10 working
days.
    (ix) English language interpreters must be provided to accompany
EPA inspectors and auditors, on request.
    (2) An agent for service of process located in the District of
Columbia shall be named, and service on this agent constitutes service
on the foreign refiner or any employee of the foreign refiner for any
action by EPA or otherwise by the United States related to the
requirements of this subpart.
    (3) The forum for any civil or criminal enforcement action related
to the

provisions of this section for violations of the Clean Air Act or
regulations promulgated thereunder shall be governed by the Clean Air
Act, including the EPA administrative forum where allowed under the
Clean Air Act.
    (4) United States substantive and procedural laws shall apply to
any civil or criminal enforcement action against the foreign refiner or
any employee of the foreign refiner related to the provisions of this
section.
    (5) Submitting a petition for participation in the benzene foreign
refiner program or producing and exporting gasoline under any such
program, and all other actions to comply with the requirements of this
subpart relating to participation in any benzene foreign refiner
program, or to establish an individual refinery gasoline benzene
baseline under this subpart constitute actions or activities covered by
and within the meaning of the provisions of 28 U.S.C. 1605(a)(2), but
solely with respect to actions instituted against the foreign refiner,
its agents and employees in any court or other tribunal in the United
States for conduct that violates the requirements applicable to the
foreign refiner under this subpart, including conduct that violates the
False Statements Accountability Act of 1996 (18 U.S.C. 1001) and
section 113(c)(2) of the Clean Air Act (42 U.S.C. 7413).
    (6) The foreign refiner, or its agents or employees, will not seek
to detain or to impose civil or criminal remedies against EPA
inspectors or auditors, whether EPA employees or EPA contractors, for
actions performed within the scope of EPA employment related to the
provisions of this section.
    (7) The commitment required by this paragraph (i) shall be signed
by the owner or president of the foreign refiner business.
    (8) In any case where Benzene-FRGAS produced at a foreign refinery
is stored or transported by another company between the refinery and
the vessel that transports the Benzene-FRGAS to the United States, the
foreign refiner shall obtain from each such other company a commitment
that meets the requirements specified in paragraphs (i)(1) through (7)
of this section, and these commitments shall be included in the foreign
refiner's petition to participate in any benzene foreign refiner
program.
    (j) Sovereign immunity. By submitting a petition for participation
in any benzene foreign refiner program under this subpart (and
baseline, if applicable) under this section, or by producing and
exporting gasoline to the United States under any such program, the
foreign refiner, and its agents and employees, without exception,
become subject to the full operation of the administrative and judicial
enforcement powers and provisions of the United States without
limitation based on sovereign immunity, with respect to actions
instituted against the foreign refiner, its agents and employees in any
court or other tribunal in the United States for conduct that violates
the requirements applicable to the foreign refiner under this subpart,
including conduct that violates the False Statements Accountability Act
of 1996 (18 U.S.C. 1001) and section 113(c)(2) of the Clean Air Act (42
U.S.C. 7413).
    (k) Bond posting. Any foreign refiner shall meet the requirements
of this paragraph (k) as a condition to approval as benzene foreign
refiner under this subpart.
    (1) The foreign refiner shall post a bond of the amount calculated
using the following equation:

Bond = G x $ 0.01

Where:

Bond = amount of the bond in U.S. dollars
G = the largest volume of gasoline produced at the foreign refinery and
exported to the United States, in gallons, during a single calendar
year among the most recent of the following calendar years, up to a
maximum of five calendar years: the calendar year immediately preceding
the date the refinery's baseline petition is submitted, the calendar
year the baseline petition is submitted, and each succeeding calendar
year.

    (2) Bonds shall be posted by:
    (i) Paying the amount of the bond to the Treasurer of the United
States;
    (ii) Obtaining a bond in the proper amount from a third party
surety agent that is payable to satisfy United States administrative or
judicial judgments against the foreign refiner, provided EPA agrees in
advance as to the third party and the nature of the surety agreement;
or
    (iii) An alternative commitment that results in assets of an
appropriate liquidity and value being readily available to the United
States, provided EPA agrees in advance as to the alternative
commitment.
    (3) Bonds posted under this paragraph (k) shall--
    (i) Be used to satisfy any judicial judgment that results from an
administrative or judicial enforcement action for conduct in violation
of this subpart, including where such conduct violates the False
Statements Accountability Act of 1996 (18 U.S.C. 1001) and section
113(c)(2) of the Clean Air Act (42 U.S.C. 7413);
    (ii) Be provided by a corporate surety that is listed in the United
States Department of Treasury Circular 570 ``Companies Holding
Certificates of Authority as Acceptable Sureties on Federal Bonds'';
and
    (iii) Include a commitment that the bond will remain in effect for
at least five years following the end of latest annual reporting period
that the foreign refiner produces gasoline pursuant to the requirements
of this subpart.
    (4) On any occasion a foreign refiner bond is used to satisfy any
judgment, the foreign refiner shall increase the bond to cover the
amount used within 90 days of the date the bond is used.
    (5) If the bond amount for a foreign refiner increases, the foreign
refiner shall increase the bond to cover the shortfall within 90 days
of the date the bond amount changes. If the bond amount decreases, the
foreign refiner may reduce the amount of the bond beginning 90 days
after the date the bond amount changes.
    (l) [Reserved]
    (m) English language reports. Any report or other document
submitted to EPA by a foreign refiner shall be in English language, or
shall include an English language translation.
    (n) Prohibitions. (1) No person may combine Certified Benzene-FRGAS
with any Non-Certified Benzene-FRGAS or Non-Benzene-FRGAS, and no
person may combine Certified Benzene-FRGAS with any Certified Benzene-
FRGAS produced at a different refinery, until the importer has met all
the requirements of paragraph (o) of this section, except as provided
in paragraph (e) of this section.
    (2) No foreign refiner or other person may cause another person to
commit an action prohibited in paragraph (n)(1) of this section, or
that otherwise violates the requirements of this section.
    (o) United States importer requirements. Any United States importer
shall meet the following requirements:
    (1) Each batch of imported gasoline shall be classified by the
importer as being Benzene-FRGAS or as Non-Benzene-FRGAS, and each batch
classified as Benzene-FRGAS shall be further classified as Certified
Benzene-FRGAS or as Non-Certified Benzene-FRGAS.
    (2) Gasoline shall be classified as Certified Benzene-FRGAS or as
Non-Certified Benzene-FRGAS according to the designation by the foreign
refiner if this designation is supported by product transfer documents
prepared by the foreign refiner as required in paragraph

(d) of this section, unless the gasoline is classified as Non-Certified
Benzene-FRGAS under paragraph (g) of this section. Additionally, the
importer shall comply with all requirements of this subpart applicable
to importers.
    (3) For each gasoline batch classified as Benzene-FRGAS, any United
States importer shall perform the following procedures.
    (i) In the case of both Certified and Non-Certified Benzene-FRGAS,
have an independent third party:
    (A) Determine the volume of gasoline in the vessel;
    (B) Use the foreign refiner's Benzene-FRGAS certification to
determine the name and EPA-assigned registration number of the foreign
refinery that produced the Benzene-FRGAS;
    (C) Determine the name and country of registration of the vessel
used to transport the Benzene-FRGAS to the United States; and
    (D) Determine the date and time the vessel arrives at the United
States port of entry.
    (ii) In the case of Certified Benzene-FRGAS, have an independent
third party:
    (A) Collect a representative sample from each vessel compartment
subsequent to the vessel's arrival at the United States port of entry
and prior to off loading any gasoline from the vessel;
    (B) Obtain the compartment samples; and
    (C) Determine the benzene content value of each compartment sample
using the methodology specified at 80.46(e) by the third party
analyzing the sample or by the third party observing the importer
analyze the sample.
    (4) Any importer shall submit reports within 30 days following the
date any vessel transporting Benzene-FRGAS arrives at the United States
port of entry:
    (i) To the Administrator containing the information determined
under paragraph (o)(3) of this section; and
    (ii) To the foreign refiner containing the information determined
under paragraph (o)(3)(ii) of this section, and including
identification of the port at which the product was offloaded.
    (5) Any United States importer shall meet all other requirements of
this subpart, for any imported gasoline that is not classified as
Certified Benzene-FRGAS under paragraph (o)(2) of this section.
    (p) Truck imports of Certified Benzene-FRGAS produced at a foreign
refinery. (1) Any refiner whose Certified Benzene-FRGAS is transported
into the United States by truck may petition EPA to use alternative
procedures to meet the following requirements:
    (i) Certification under paragraph (d)(5) of this section;
    (ii) Load port and port of entry sampling and testing under
paragraphs (f) and (g) of this section;
    (iii) Attest under paragraph (h) of this section; and
    (iv) Importer testing under paragraph (o)(3) of this section.
    (2) These alternative procedures must ensure Certified Benzene-
FRGAS remains segregated from Non-Certified Benzene-FRGAS and from Non-
Benzene-FRGAS until it is imported into the United States. The petition
will be evaluated based on whether it adequately addresses the
following:
    (i) Provisions for monitoring pipeline shipments, if applicable,
from the refinery, that ensure segregation of Certified Benzene-FRGAS
from that refinery from all other gasoline;
    (ii) Contracts with any terminals and/or pipelines that receive
and/or transport Certified Benzene-FRGAS, that prohibit the commingling
of Certified Benzene-FRGAS with any of the following:
    (A) Other Certified Benzene-FRGAS from other refineries.
    (B) All Non-Certified Benzene-FRGAS.
    (C) All Non-Benzene-FRGAS;
    (iii) Procedures for obtaining and reviewing truck loading records
and United States import documents for Certified Benzene-FRGAS to
ensure that such gasoline is only loaded into trucks making deliveries
to the United States;
    (iv) Attest procedures to be conducted annually by an independent
third party that review loading records and import documents based on
volume reconciliation, or other criteria, to confirm that all Certified
Benzene-FRGAS remains segregated throughout the distribution system and
is only loaded into trucks for import into the United States.
    (3) The petition required by this section must be submitted to EPA
along with the application for temporary refiner relief individual
refinery benzene standard under this subpart.
    (q) Withdrawal or suspension of foreign refiner status. EPA may
withdraw or suspend a foreign refiner's benzene baseline or standard
approval for a foreign refinery where--
    (1) A foreign refiner fails to meet any requirement of this
section;
    (2) A foreign government fails to allow EPA inspections as provided
in paragraph (i)(1) of this section;
    (3) A foreign refiner asserts a claim of, or a right to claim,
sovereign immunity in an action to enforce the requirements in this
subpart; or
    (4) A foreign refiner fails to pay a civil or criminal penalty that
is not satisfied using the foreign refiner bond specified in paragraph
(k) of this section.
    (r) Early use of a foreign refiner benzene baseline. (1) A foreign
refiner may begin using an individual refinery benzene baseline under
this subpart before EPA has approved the baseline, provided that:
    (i) A baseline petition has been submitted as required in paragraph
(b) of this section;
    (ii) EPA has made a provisional finding that the baseline petition
is complete;
    (iii) The foreign refiner has made the commitments required in
paragraph (i) of this section;
    (iv) The persons that will meet the independent third party and
independent attest requirements for the foreign refinery have made the
commitments required in paragraphs (f)(3)(iii) and (h)(7)(iii) of this
section; and
    (v) The foreign refiner has met the bond requirements of paragraph
(k) of this section.
    (2) In any case where a foreign refiner uses an individual refinery
baseline before final approval under paragraph (r)(1) of this section,
and the foreign refinery baseline values that ultimately are approved
by EPA are more stringent than the early baseline values used by the
foreign refiner, the foreign refiner shall recalculate its compliance,
ab initio, using the baseline values approved by the EPA, and the
foreign refiner shall be liable for any resulting violation of the
requirements of this subpart.
    (s) Additional requirements for petitions, reports and
certificates. Any petition for approval to produce gasoline subject to
the benzene foreign refiner program, any alternative procedures under
paragraph (p) of this section, any report or other submission required
by paragraph (c), (f)(2), or (i) of this section, and any certification
under paragraph (d)(3) of this section shall be--
    (1) Submitted in accordance with procedures specified by the
Administrator, including use of any forms that may be specified by the
Administrator.
    (2) Be signed by the president or owner of the foreign refiner
company, or by that person's immediate designee, and shall contain the
following declaration:

    I hereby certify: (1) That I have actual authority to sign on
behalf of and to bind [insert name of foreign refiner] with regard
to all statements contained herein; (2) that I am aware that the
information contained herein is being Certified, or submitted to the
United States Environmental Protection Agency, under the
requirements of 40 CFR part 80, subpart L, and that the information
is

[[Continued on page 15953]]

]

[[pp. 15953-15963]] Control of Hazardous Air Pollutants From Mobile Sources

[[Continued from page 15952]]

material for determining compliance under these regulations; and (3)
that I have read and understand the information being Certified or
submitted, and this information is true, complete and correct to the
best of my knowledge and belief after I have taken reasonable and
appropriate steps to verify the accuracy thereof. I affirm that I
have read and understand the provisions of 40 CFR part 80, subpart
L, including 40 CFR 80.1420 apply to [insert name of foreign
refiner]. Pursuant to Clean Air Act section 113(c) and 18 U.S.C.
1001, the penalty for furnishing false, incomplete or misleading
information in this certification or submission is a fine of up to
$10,000 U.S., and/or imprisonment for up to five years.

PART 85--CONTROL OF AIR POLLUTION FROM MOBILE SOURCES

    10. The authority citation for part 85 continues to read as
follows:

    Authority: 42 U.S.C. 7401-7671q.

Subpart P--[Amended]

    11. Section 85.1515 is amended by adding paragraphs (c)(2)(vii),
(c)(2)(viii), and (c)(8) to read as follows.

Sec.  85.1515  Emission standards and test procedures applicable to
imported nonconforming motor vehicles and motor vehicle engines.

* * * * *
    (c) * * *
    (2) * * *
    (vii) Nonconforming LDV/LLDTs originally manufactured in OP years
2009 and later must meet the evaporative emission standards in Table
S09-1 in 40 CFR 86.1811-09(e). However, LDV/LLDTs originally
manufactured in OP years 2009 and 2010 and imported by ICIs who qualify
as small volume manufacturers as defined in 40 CFR 86.1838-01 are
exempt from the LDV/LLDT evaporative emission standards in Table S09-1
in 40 CFR 86.1811-09(e), but must comply with the Tier 2 evaporative
emission standards in Table S04-3 in 40 CFR 86.1811-04(e).
    (viii) Nonconforming HLDTs and MDPVs originally manufactured in OP
years 2010 and later must meet the evaporative emission standards in
Table S09-1 in 40 CFR 86.1811-09(e). However, HLDTs and MDPVs
originally manufactured in OP years 2010 and 2011 and imported by ICIs,
who qualify as small volume manufacturers as defined in 40 CFR 86.1838-
01, are exempt from the HLDTs and MDPVs evaporative emission standards
in Table S09-1 in 40 CFR 86.1811-09(e), but must comply with the Tier 2
evaporative emission standards in Table S04-3 in 40 CFR 86.1811-04(e).
* * * * *
    (8)(i) Nonconforming LDV/LLDTs originally manufactured in OP years
2010 and later must meet the cold temperature NHMC emission standards
in Table S10-1 in 40 CFR 86.1811-10(g).
    (ii) Nonconforming HLDTs and MDPVs originally manufactured in OP
years 2012 and later must meet the cold temperature NHMC emission
standards in Table S10-1 in 40 CFR 86.1811-10(g).
    (iii) ICIs, which qualify as small volume manufacturers, are exempt
from the cold temperature NMHC phase-in intermediate percentage
requirements described in 40 CFR 86.1811-10(g)(3). See 40 CFR 86.1811-
04(k)(5)(vi) and (vii).
    (iv) As an alternative to the requirements of paragraphs (c)(8)(i)
and (ii) of this section, ICIs may elect to meet a cold temperature
NMHC family emission level below the cold temperature NMHC fleet
average standards specified in Table S10-1 of 40 CFR 86.1811-10 and
bank or sell credits as permitted in 40 CFR 86.1864-10. An ICI may not
meet a higher cold temperature NMHC family emission level than the
fleet average standards in Table S10-1 of 40 CFR 86.1811-10 as
specified in paragraphs (c)(8)(i) and (ii) of this section, unless it
demonstrates to the Administrator at the time of certification that it
has obtained appropriate and sufficient NMHC credits from another
manufacturer, or has generated them in a previous model year or in the
current model year and not traded them to another manufacturer or used
them to address other vehicles as permitted in 40 CFR 86.1864-10.
    (v) Where an ICI desires to obtain a certificate of conformity
using a higher cold temperature NMHC family emission level than
specified in paragraphs (c)(8)(i) and (ii) of this section, but does
not have sufficient credits to cover vehicles imported under such
certificate, the Administrator may issue such certificate if the ICI
has also obtained a certificate of conformity for vehicles certified
using a cold temperature NMHC family emission level lower than that
required under paragraphs (c)(8)(i) and (ii) of this section. The ICI
may then import vehicles to the higher cold temperature NMHC family
emission level only to the extent that it has generated sufficient
credits from vehicles certified to a family emission level lower than
the cold temperature NMHC fleet average standard during the same model
year.
    (vi) ICIs using cold temperature NMHC family emission levels higher
than the cold temperature NMHC fleet average standards specified in
paragraphs (c)(8)(i) and (ii) of this section must monitor their
imports so that they do not import more vehicles certified to such
family emission levels than their available credits can cover. ICIs
must not have a credit deficit at the end of a model year and are not
permitted to use the deficit carryforward provisions provided in 40 CFR
86.1864-10.
    (vii) The Administrator may condition the certificates of
conformity issued to ICIs as necessary to ensure that vehicles subject
to this paragraph (c)(8) comply with the applicable cold temperature
NMHC fleet average standard for each model year.
* * * * *

PART 86--CONTROL OF EMISSIONS FROM NEW AND IN-USE HIGHWAY VEHICLES
AND ENGINES

    12. The authority citation for part 86 continues to read as
follows:

    Authority: 42 U.S.C. 7401-7671q.

Subpart H--[Amended]

    13. Section 86.701-94 is amended by revising paragraph (a) to read
as follows:

Sec.  86.701-94  General applicability.

    (a) The provisions of this subpart apply to: 1994 through 2003
model year Otto-cycle and diesel light-duty vehicles; 1994 through 2003
model year Otto-cycle and diesel light-duty trucks; and 1994 and later
model year Otto-cycle and diesel heavy-duty engines; and 2001 and later
model year Otto-cycle heavy-duty vehicles and engines certified under
the provisions of subpart S of this part. The provisions of subpart B
of this part apply to this subpart. The provisions of Sec.  86.1811-
04(a)(5) and (p) apply to 2004 and later model year light-duty
vehicles, light-duty trucks, and medium duty passenger vehicles.
* * * * *

Subpart S--[Amended]

    14. Section 86.1803-01 is amended by revising the definition of
``Banking'' and adding the definition for ``Fleet average cold
temperature NMHC standard'' to read as follows:

Sec.  86.1803-01  Definitions.

* * * * *
    Banking means one of the following:
    (1) The retention of NOX emission credits for complete
heavy-duty vehicles by the manufacturer generating the emission
credits, for use in future model year certification programs as
permitted by regulation.

    (2) The retention of cold temperature non-methane hydrocarbon
(NMHC) emission credits for light-duty vehicles, light-duty trucks, and
medium-duty passenger vehicles by the manufacturer generating the
emission credits, for use in future model year certification programs
as permitted by regulation.
* * * * *
    Fleet average cold temperature NMHC standard means, for light-duty
vehicles, light-duty trucks and medium-duty passenger vehicles, an NMHC
cold temperature standard imposed over an individual manufacturer's
total 50-State U.S. sales (or a fraction of total U.S. sales during
phase-in years), as ``U.S. sales'' is defined to include all national
sales, including points-of-first sale in California, of a given model
year. Manufacturers determine their compliance with such a standard by
averaging, on a sales-weighted basis, the individual NMHC ``Family
Emission Limits'' (FEL--as defined in this subpart) to which light-duty
vehicles, light-duty trucks and medium-duty passenger vehicles were
certified and sold for that model year.
* * * * *
    15. Section 86.1805-04 is amended by adding paragraph (g) to read
as follows:

Sec.  86.1805-04  Useful life.

* * * * *
    (g) Where cold temperature NMHC standards are applicable, the
useful life requirement for compliance with the cold temperature NMHC
standard only is as follows:
    (1) For LDV/LLDTs, 10 years or 120,000 miles, whichever occurs
first.
    (2) For HLDT/MDPVs, 11 years or 120,000 miles, whichever occurs
first.
    16. A new Sec.  86.1809-10 is added to Subpart S to read as
follows:

Sec.  86.1809-10  Prohibition of defeat devices.

    (a) No new light-duty vehicle, light-duty truck, medium-duty
passenger vehicle, or complete heavy-duty vehicle shall be equipped
with a defeat device.
    (b) The Administrator may test or require testing on any vehicle at
a designated location, using driving cycles and conditions which may
reasonably be expected to be encountered in normal operation and use,
for the purposes of investigating a potential defeat device.
    (c) For cold temperature CO and cold temperature NMHC emission
control, the Administrator will use a guideline to determine the
appropriateness of the CO and NMHC emission control at ambient
temperatures between 25 [deg]F (4 [deg]C) (the upper bound of the cold
test range) and 68 [deg]F (20 [deg]C) (the lower bound of the FTP
range). The guideline for CO emission congruity across the intermediate
temperature range is the linear interpolation between the CO standard
applicable at 25 [deg]F (4 [deg]C) and the CO standard applicable at 68
[deg]F (20 [deg]C). The guideline for NMHC emission congruity across
the intermediate temperature range is the linear interpolation between
the NMHC FEL applicable at 25 [deg]F (4 [deg]C) and the Tier 2 NMOG
standard to which the vehicle was certified at 68 [deg]F (20 [deg]C),
where the intermediate temperature NMHC level is rounded to the nearest
hundredth for comparison to the interpolated line. For vehicles that
exceed this CO emissions guideline or this NMHC emissions guideline
upon intermediate temperature cold testing:
    (1) If the CO emission level is greater than the 20 [deg]F (7
[deg]C) emission standard, the vehicle will automatically be considered
to be equipped with a defeat device without further investigation. If
the intermediate temperature NMHC emission level, rounded to the
nearest hundredth, is greater than the 20 [deg]F (7 [deg]C) FEL, the
vehicle will automatically be considered to be equipped with a defeat
device without further investigation.
    (2) If the CO emission level does not exceed the 20 [deg]F emission
standard, the Administrator may investigate the vehicle design for the
presence of a defeat device under paragraph (d) of this section. If the
intermediate temperature NMHC emission level, rounded to the nearest
hundredth, does not exceed the 20 [deg]F FEL, the Administrator may
investigate the vehicle design for the presence of a defeat device
under paragraph (d) of this section.
    (d) For vehicle designs designated by the Administrator to be
investigated for possible defeat devices:
    (1) The manufacturer must show to the satisfaction of the
Administrator that the vehicle design does not incorporate strategies
that unnecessarily reduce emission control effectiveness exhibited
during the Federal or Supplemental Federal emissions test procedures
(FTP or SFTP) when the vehicle is operated under conditions which may
reasonably be expected to be encountered in normal operation and use.
    (2) The following information requirements apply:
    (i) Upon request by the Administrator, the manufacturer will
provide an explanation containing detailed information regarding test
programs, engineering evaluations, design specifications, calibrations,
on-board computer algorithms, and design strategies incorporated for
operation both during and outside of the Federal emission test
procedure.
    (ii) For purposes of investigations of possible cold temperature CO
or cold temperature NMHC defeat devices under this paragraph (d), the
manufacturer shall provide an explanation which must show, to the
satisfaction of the Administrator, that CO emissions and NMHC emissions
are reasonably controlled in reference to the linear guideline across
the intermediate temperature range.
    (e) For each test group of Tier 2 LDV/LLDTs and HLDT/MDPVs and
interim non-Tier 2 LDV/LLDTs and HLDT/MDPVs the manufacturer must
submit, with the Part II certification application, an engineering
evaluation demonstrating to the satisfaction of the Administrator that
a discontinuity in emissions of non-methane organic gases, carbon
monoxide, oxides of nitrogen and formaldehyde measured on the Federal
Test Procedure (subpart B of this part) does not occur in the
temperature range of 20 to 86 degrees F. For diesel vehicles, the
engineering evaluation must also include particulate emissions.
    17. A new Sec.  86.1810-09 is added to Subpart S to read as
follows:

Sec.  86.1810-09  General standards; increase in emissions; unsafe
condition; waivers.

    Section 86.1810-09 includes text that specifies requirements that
differ from Sec.  86.1810-01. Where a paragraph in Sec.  86.1810-01 is
identical and applicable to Sec.  86.1810-09, this may be indicated by
specifying the corresponding paragraph and the statement ``[Reserved].
For guidance see Sec.  86.1810-01.'' Where a corresponding paragraph of
Sec.  86.1810-01 is not applicable, this is indicated by the statement
``[Reserved].'' This section applies to model year 2009 and later
light-duty vehicles and light-duty trucks fueled by gasoline, diesel,
methanol, ethanol, natural gas and liquefied petroleum gas fuels. This
section also applies to MDPVs and complete heavy-duty vehicles
certified according to the provisions of this subpart. Multi-fueled
vehicles (including dual-fueled and flexible-fueled vehicles) shall
comply with all requirements established for each consumed fuel (or
blend of fuels in the case of flexible fueled vehicles). The standards
of this subpart apply to both certification and in-use vehicles unless
otherwise indicated. This section also applies to hybrid electric
vehicles and zero emission vehicles. Unless otherwise specified,
requirements and provisions of this subpart applicable to methanol
fueled vehicles are also applicable to Tier 2 and interim non-Tier 2
ethanol fueled vehicles.

    (a) through (e) [Reserved]. For guidance see Sec.  86.1810-01.
    (f) Altitude requirements. (1) All emission standards apply at low
altitude conditions and at high altitude conditions, except for
supplemental exhaust emission standards, cold temperature NMHC emission
standards, and the evaporative emission standards as described in Sec.
86.1811-09(e). Supplemental exhaust emission standards, as described in
Sec.  86.1811-04(f), apply only at low altitude conditions. Cold
temperature NMHC emission standards, as described in Sec.  86.1811-
10(g), apply only at low altitude conditions. Tier 2 evaporative
emission standards apply at high altitude conditions as specified in
Sec.  86.1810-01(f) and (j), and Sec.  86.1811-04(e).
    (2) For vehicles that comply with the cold temperature NMHC
standards, manufacturers shall submit an engineering evaluation
indicating that common calibration approaches are utilized at high
altitudes. Any deviation from low altitude emission control practices
shall be included in the auxiliary emission control device (AECD)
descriptions submitted at certification. Any AECD specific to high
altitude shall require engineering emission data for EPA evaluation to
quantify any emission impact and validity of the AECD.
    (g) through (p) [Reserved]. For guidance see Sec.  86.1810-01.
    18. Section 86.1811-04 is amended by adding paragraphs (k)(5)(iv)
through (vii) and (q)(1)(vi) through (ix) to read as follows:

Sec.  86.1811-04  Emission standards for light-duty vehicles, light-
duty trucks and medium-duty passenger vehicles.

* * * * *
    (k) * * *
    (5) * * *
    (iv) Vehicles produced by small volume manufacturers, as defined in
Sec.  86.1838-01, are exempt from the LDV/LLDT evaporative emissions
standards in Table S09-1 of Sec.  86.1811-09(e) for model years 2009
and 2010, but must comply with the Tier 2 evaporative emission
standards in Table S04-3 in paragraph (e)(1) of this section for model
years 2009 and 2010.
    (v) Vehicles produced by small volume manufacturers, as defined in
Sec.  86.1838-01, are exempt from the HLDT/MDPV evaporative emissions
standards in Table S09-1 of Sec.  86.1811-09(e) for model years 2010
and 2011, but must comply with the Tier 2 evaporative emission
standards in Table S04-3 in paragraph (e)(1) of this section for model
years 2010 and 2011.
    (vi) Small volume manufacturers, as defined in Sec.  86.1838-01,
are exempt from the LDV/LLDT cold temperature NMHC phase-in
requirements in Table S10-1 of Sec.  86.1811-10(g) for model years
2010, 2011, and 2012, but must comply with the 100% requirement for
2013 and later model years for cold temperature NMHC standards
    (vii) Small volume manufacturers, as defined in Sec.  86.1838-01,
are exempt from the HLDT/MDPV cold temperature NMHC phase-in
requirements in Table S10-1 of Sec.  86.1811-10(g) for model years
2012, 2013, and 2014, but must comply with the 100% requirement for
2015 and later model years for cold temperature NMHC standards.
* * * * *
    (q) * * *
    (1) * * *
    (vi) Defer compliance with the LDV/LLDT evaporative emissions
standards in Table S09-1 of Sec.  86.1811-09(e) until 2013, and defer
compliance with the LDV/LLDT evaporative emissions standards in Table
S09-2 of Sec.  86.1811-09(e) until 2014. (The hardship relief may be
extended one additional model year--2 model years total.)
    (vii) Defer compliance with the HLDT/MDPV evaporative emissions
standards in Table S09-1 of Sec.  86.1811-09(e) until 2014, and defer
compliance with the HLDT/MDPV evaporative emissions standards in Table
S09-2 of Sec.  86.1811-09(e) until 2015. (The hardship relief may be
extended one additional model year--2 model years total.)
    (viii) Defer 100% compliance with the LDV/LLDT cold temperature
NMHC standards in Table S10-X of Sec.  86.1811-10(g) until 2015. (The
hardship relief may be extended one additional model year--2 model
years total.)
    (ix) Defer 100% compliance with the HLDT/MDPV cold temperature NMHC
standards in Table S10-X of Sec.  86.1811-10(g) until 2017. (The
hardship relief may be extended one additional model year--2 model
years total.)
* * * * *
    19. A new Sec.  86.1811-09 is added to Subpart S to read as
follows:

Sec.  86.1811-09  Emission standards for light-duty vehicles, light-
duty trucks and medium-duty passenger vehicles.

    Section 86.1811-09 includes text that specifies requirements that
differ from Sec.  86.1811-04. Where a paragraph in Sec.  86.1811-04 is
identical and applicable to Sec.  86.1811-09, this may be indicated by
specifying the corresponding paragraph and the statement ``[Reserved].
For guidance see Sec.  86.1811-04.'' Where a corresponding paragraph of
Sec.  86.1811-04 is not applicable, this is indicated by the statement
``[Reserved].''
    (a) Applicability. (1) This section contains regulations
implementing emission standards for all LDVs, LDTs and MDPVs. This
section applies to 2009 and later model year LDVs, LDTs and MDPVs
fueled by gasoline, diesel, methanol, ethanol, natural gas and
liquefied petroleum gas fuels, except as noted. Additionally, this
section applies to hybrid electric vehicles (HEVs) and zero emission
vehicles (ZEVs). Unless otherwise specified, multi-fueled vehicles must
comply with all requirements established for each consumed fuel.
    (2) through (4) [Reserved]. For guidance see Sec.  86.1811-04.
    (5) The exhaust emission standards and evaporative emission
standards of this section apply equally to certification and in-use
LDVs, LDTs and MDPVs, unless otherwise specified. See paragraph (t) of
this section for interim evaporative emission in-use standards that are
different than the certification evaporative emission standards
specified in paragraph (e) of this section.
    (b) through (d) [Reserved]. For guidance see Sec.  86.1811-04.
    (e) Evaporative emission standards. Evaporative emissions from
gasoline-fueled, natural gas-fueled, liquefied petroleum gas-fueled,
ethanol-fueled and methanol-fueled vehicles must not exceed the
standards in this paragraph (e). The standards apply equally to
certification and in-use vehicles.
    (1) Diurnal-plus-hot soak evaporative hydrocarbon standards. (i)
Hydrocarbons for LDV/LLDTs, HLDTs and MDPVs that are gasoline-fueled,
dedicated natural gas-fueled, dedicated liquefied petroleum gas-fueled,
dedicated ethanol-fueled, dedicated methanol-fueled and multi-fueled
vehicles when operating on gasoline must not exceed the diurnal plus
hot soak standards shown in Table S09-1 for the full three diurnal test
sequence and for the supplemental two diurnal test sequence. The
standards apply equally to certification and in-use vehicles, except as
otherwise specified in paragraph (t) of this section. Table S09-1
follows:

                  Table S09-1.--Light-Duty Diurnal Plus Hot Soak Evaporative Emission Standards
                                                [Grams per test]
----------------------------------------------------------------------------------------------------------------
                                                                                Supplemental 2
                                                                                3 day            day
                         Vehicle category                           Model year      diurnal+hot     diurnal+hot
                                                                                soak            soak
----------------------------------------------------------------------------------------------------------------
LDVs............................................................            2009            0.50            0.65
LLDTs...........................................................            2009            0.65            0.85
HLDTs...........................................................            2010            0.90            1.15
MDPVs...........................................................            2010            1.00            1.25
----------------------------------------------------------------------------------------------------------------

    (ii) Hydrocarbons for LDV/LLDTs, HLDTs and MDPVs that are multi-
fueled vehicles operating on non-gasoline fuel must not exceed the
diurnal plus hot soak standards shown in Table S09-2 for the full three
diurnal test sequence and for the supplemental two diurnal test
sequence. The standards apply equally to certification and in-use
vehicles except as otherwise specified in paragraph (t) of this
section. Table S09-2 follows:

  Table S09-2.--Light-Duty Diurnal Plus Hot Soak Evaporative Emission Standards: Non-Gasoline Portion of Multi-
                                                 Fueled Vehicles
                                                [Grams per test]
----------------------------------------------------------------------------------------------------------------
                                                                                Supplemental 2
                                                                                3 day            day
                         Vehicle category                           Model year      diurnal+hot     diurnal+hot
                                                                                soak            soak
----------------------------------------------------------------------------------------------------------------
LDVs............................................................            2012            0.50            0.65
LLDTs...........................................................            2012            0.65            0.85
HLDTs...........................................................            2013            0.90            1.15
MDPVs...........................................................            2013            1.00            1.25
----------------------------------------------------------------------------------------------------------------

    (2) through (6) [Reserved]. For guidance see Sec.  86.1811-04.
    (f) through (s) [Reserved]. For guidance see Sec.  86.1811-04.
    (t) Evaporative emission in-use standards. (1) For LDVs and LLDTs
certified prior to the 2012 model year, the Tier 2 LDV/LLDT evaporative
emissions standards in Table S04-3 of Sec.  86.1811-04(e) shall apply
to in-use vehicles for only the first three model years after an
evaporative family is first certified to the LDV/LLDT evaporative
emission standards in Table S09-1 of paragraph (e) of this section. For
example, evaporative families first certified to the LDV/LLDT standards
in Table S09-1 in the 2011 model year shall meet the Tier 2 LDV/LLDT
evaporative emission standards (Table S04-3) in-use for 2011, 2012, and
2013 model year vehicles (applying Tier 2 standards in-use is limited
to the first three years after introduction of a vehicle).
    (2) For HLDTs and MDPVs certified prior to the 2013 model year, the
Tier 2 HLDT/MDPV evaporative emissions standards in Table S04-3 of
Sec.  86.1811-04(e) shall apply to in-use vehicles for only the first
three model years after an evaporative family is first certified to the
HLDT/MDPV evaporative emission standards in Table S09-1 of paragraph
(e) of this section. For example, evaporative families first certified
to the HLDT/MDPV standards in Table S09-1 in the 2012 model year shall
meet the Tier 2 HLDT/MDPV evaporative emission standards (Table S04-3)
in-use for 2012, 2013, and 2014 model year vehicles (applying Tier 2
standards in-use is limited to the first three years after introduction
of a vehicle).
    20. A new Sec.  86.1811-10 is added to Subpart S to read as
follows:

Sec.  86.1811-10  Emission standards for light-duty vehicles, light-
duty trucks and medium-duty passenger vehicles.

    Section 86.1811-10 includes text that specifies requirements that
differ from Sec.  86.1811-04 and Sec.  86.1811-09. Where a paragraph in
Sec.  86.1811-04 or Sec.  86.1811-09 is identical and applicable to
Sec.  86.1811-10, this may be indicated by specifying the corresponding
paragraph and the statement ``[Reserved]. For guidance see Sec.
86.1811-04'' or ``[Reserved]. For guidance see Sec.  86.1811-09.''
Where a corresponding paragraph of Sec.  86.1811-04 or Sec.  86.1811-09
is not applicable, this is indicated by the statement ``[Reserved].''
    (a) [Reserved]. For guidance see Sec.  86.1811-09.
    (b) through (d) [Reserved]. For guidance see Sec.  86.1811-04.
    (e) [Reserved]. For guidance see Sec.  86.1811-09.
    (f) [Reserved]. For guidance see Sec.  86.1811-04.
    (g) Cold temperature exhaust emission standards. (1) Cold
temperature CO standards. These cold temperature CO standards are
applicable only to gasoline fueled LDV/Ts and MDPVs. For the following
cold temperature CO exhaust emission standards, a useful life of 50,000
miles or 5 years (whichever occurs first) applies:
    (i) For LDVs and LDT1s, the standard is 10.0 grams per mile CO.
    (ii) For LDT2s, LDT3s and LDT4s, and MDPVs the standard is 12.5
grams per mile CO.
    (iii) These standards do not apply to interim non-Tier 2 MDPVs.
    (2) Cold temperature NMHC standards. Full useful life fleet average
cold temperature NMHC standards are applicable only to gasoline fueled
LDV/LLDTs and HLDT/MDPVs, and apply equally to certification and in-use
except as otherwise specified in paragraph (u) of this section for in-
use standards for applicable phase-in models. Testing with other fuels
such as E85, or testing on diesel vehicles, is not required. Multi-
fuel, bi-fuel or dual-fuel vehicles must comply with requirements using
gasoline only. For LDV/LLDTs, the useful life is 120,000 miles or 10
years, whichever comes first. For HLDT/MDPVs, the useful life is
120,000 miles or 11 years, whichever comes first. There is not an
intermediate

useful life standard for cold temperature NMHC standards.
    (i) The standards are shown in Table S10-1, which follows:

   Table S10-1.--Fleet Average Cold Temperature NMHC Full Useful Life
                       Exhaust Emission Standards
------------------------------------------------------------------------
                                                        Cold temperature
                                                           NMHC sales-
                Vehicle weight category                  weighted fleet
                                                        average standard
                                                          (grams/mile)
------------------------------------------------------------------------
LDVs & LLDTs (< = 6,000 lbs GVWR)......................               0.3
HLDTs (>6,000-8,500 lbs GVWR) &.......................               0.5
MDPVs (>8,500 10,000 lbs GVWR)........................  ................
------------------------------------------------------------------------

    (ii) The manufacturer must calculate its fleet average cold
temperature NMHC emission level(s) as described in Sec.  86.1864-10(m).
    (iii) During a phase-in year, the manufacturer must comply with the
fleet average standards for the required phase-in percentage for that
year as specified in paragraph (g)(3) of this section, or for the
alternate phase-in percentage as permitted under paragraph (g)(4) of
this section.
    (iv) For model years prior to 2010 (LDV/LLDTs) and 2012 (HLDT/
MDPVs), where the manufacturer desires to bank early NMHC credits as
permitted under Sec.  86.1864-10(o)(5), the manufacturer must achieve a
fleet average standard below 0.3 grams per mile for LDV/LLDTs and below
0.5 grams per mile for HLDT/MDPVs. Manufacturers must determine
compliance with the cold temperature NMHC fleet average standard
according to Sec.  86.1864-10(o).
    (3) Phase-in of the cold temperature NMHC standards. Except as
permitted in Sec.  86.1811-04(k)(5)(vi) and (vii) regarding small
volume manufacturers, manufacturers must comply with the phase-in
requirements in Tables S10-2 and S10-3 of this paragraph. Separate
phase-in schedules are provided for LDV/LLDTs and for HLDT/MDPVs. These
requirements specify the minimum percentage of the manufacturer's LDV/
LLDT and HLDT/MDPV 50-State sales, by model year, that must meet the
fleet average cold temperature NMHC standard for their full useful
lives. LDVs and LLDTs must be grouped together to determine compliance
with these phase-in requirements, and HLDTs and MDPVs must also be
grouped together to determine compliance with these phase-in
requirements. Tables S10-2 and S10-3 follow:

  Table S10-2.--Phase-in Percentages for LDV/LLDT Cold Temperature NMHC
                              Requirements
------------------------------------------------------------------------
                                                          Percentage of
                                                         LDV/LLDTs  that
                      Model year                            must meet
                                                           requirement
------------------------------------------------------------------------
2010..................................................                25
2011..................................................                50
2012..................................................                75
2013 and subsequent...................................               100
------------------------------------------------------------------------

 Table S10-3.--Phase-in Percentages for HLDT/MDPV Cold Temperature NMHC
                              Requirements
------------------------------------------------------------------------
                                                           Percentage of
                                                            HLDT/MDPVs
                       Model year                         that must meet
                                                            requirement
------------------------------------------------------------------------
2012....................................................              25
2013....................................................              50
2014....................................................              75
2015 and subsequent.....................................             100
------------------------------------------------------------------------

    (4) Alternate phase-in schedules for cold temperature NMHC
standards. (i) Manufacturers may apply for alternative phase-in
schedules that would still result in 100% phase-in by 2013 and 2015,
respectively, for LDV/LLDTs and HLDT/MDPVs. An alternate phase-in
schedule submitted by a manufacturer is subject to EPA approval. The
alternative phase-in will not be used to delay full implementation past
the last year of the primary phase-in schedule (2013 for LDV/LLDTs,
2015 for HLDT/MDPVs). An alternative phase-in schedule will be
acceptable if it satisfies the following equations:

LDV/LLDTs:

(6xAPI2008) + (5xAPI2009) +
(4xAPI2010) + (3xAPI2011) +
(2xAPI2012) + (1xAPI2013) >=500%

HLDT/MDPVs:

(6xAPI2010) + (5xAPI2011) +
(4xAPI2012) + (3xAPI2013) +
(2xAPI2014) + (1xAPI2015) >=500%

Where:

API = anticipated phase-in percentage for the referenced model year

    (ii) If the sum of products is greater than or equal to 500%, which
is the sum of products from the primary phase-in schedule (4 x 25% + 3
x 50% + 2 x 75% + 1 x 100% = 500%), then the alternative phase-in
schedule is acceptable, except as prohibited in paragraphs (g)(4)(i)
and (iii) of this section. In addition, manufacturers electing to use
an alternate phase-in schedule for compliance with the cold temperature
NMHC exhaust emission standards must ensure that the sum of products is
at least 100% for model years 2010 and earlier for LDV/LLDTs, and 2012
and earlier for HLDT/MDPVs. For example, a phase-in schedule for LDV/
LLDTs of 5/10/10/45/80/100 that begins in 2008 would calculate as (6 x
5%) + (5 x 10%) + (4 x 10%) = 120% and would be acceptable for 2008-
2010. The full phase-in would calculate as (6 x 5%) + (5 x 10%) + (4 x
10%) + (3 x 45%) + (2 x 80%) + (1 x 100%) = 515% and would be
acceptable for 2008-2013.
    (iii) Under an alternate phase-in schedule, the projected phase-in
percentage is not binding for a given model year, provided the sums of
the actual phase-in percentages that occur meet the appropriate total
sums as required in the equations of paragraph (g)(4)(i) of this
section, and provided that 100% actual compliance is reached for the
appropriate model year, either 2013 for LDV/LLDTs or 2015 for HLDT/
MDPVs.
    (5) Manufacturers must determine compliance with required phase-in
schedules as follows:
    (i) Manufacturers must submit information showing compliance with
all phase-in requirements of this section with their Part I
applications as required by Sec.  86.1844(d)(13).
    (ii) A manufacturer electing to use any alternate phase-in schedule
permitted under this section must provide in its Application for
Certification for the first year in which it intends to use such a
schedule, and in each succeeding year during the phase-in, the intended
phase-in percentages for that model year and the remaining phase-in
years along with the intended final sum of those percentages as
described in paragraph (g)(4)(i) of this section. This information may
be included with the information required under Sec.  86.1844-
01(d)(13). In its year end annual reports, as required under Sec.
86.1844-01(e)(4), the manufacturer must include sufficient information
so that the Administrator can verify compliance with the alternative
phase-in schedule established under paragraph (g)(4)(i) of this
section.
    (6)(i) Sales percentages for the purpose of determining compliance
with the phase-in of the cold temperature NMHC requirements must be
based upon projected 50-State sales of LDV/LLDTs and HLDT/MDPVs of the
applicable model year by the manufacturer to the point of first sale.
Such sales percentages must be rounded to the nearest one tenth of a
percent.
    (ii) Alternatively, the manufacturer may petition the Administrator
to allow actual volume produced for U.S. sales to be used in lieu of
projected U.S. sales for purposes of determining compliance

with the phase-in percentage requirements under this section. The
manufacturer must submit its petition within 30 days of the end of the
model year to the Compliance and Innovative Strategies Division. For
EPA to approve the use of actual volume produced for U.S. sales, the
manufacturer must establish to the satisfaction of the Administrator,
that actual production volume is functionally equivalent to actual
sales volume of LDV/LLDTs and HLDT/MDPVs sold in all 50 U.S. States.
    (f) through (s) [Reserved]. For guidance see Sec.  86.1811-04.
    (t) [Reserved]. For guidance see Sec.  86.1811-09.
    (u) Cold temperature NMHC exhaust emission in-use standards for
applicable phase-in models. An interim full useful life in-use
compliance standard is calculated by adding 0.1 g/mi to the FEL to
which each test group is newly certified, and applies to that test
group only for the model years shown in Tables S10-4 and S10-5.
Otherwise, the in-use standard is the certification standard from
paragraph (g)(2) of this section. The standards apply for purposes of
in-use testing only and does not apply to certification or Selective
Enforcement Auditing. Tables S10-4 and S10-5 follow:

                         Table S10-4.--In-Use Standard For Applicable Phase-In LDV/LLDTs
----------------------------------------------------------------------------------------------------------------
                Model year of introduction                    2008     2009     2010     2011     2012     2013
----------------------------------------------------------------------------------------------------------------
Models years that the interim in-use standard is available     2008     2009     2010     2011     2012     2013
                                                               2009     2010     2011     2012     2013     2014
                                                               2010     2011     2012     2013     2014
                                                               2011     2012     2013
----------------------------------------------------------------------------------------------------------------

                        Table S10-5.--In-Use Standards For Applicable Phase-In HLDT/MDPVs
----------------------------------------------------------------------------------------------------------------
                Model year of introduction                    2010     2011     2012     2013     2014     2015
----------------------------------------------------------------------------------------------------------------
Models years that the interim in-use standard is available     2010     2011     2012     2013     2014     2015
                                                               2011     2012     2013     2014     2015     2016
                                                               2012     2013     2014     2015     2016
                                                               2013     2014     2015
----------------------------------------------------------------------------------------------------------------

    21. Section 86.1823-01 is amended by revising paragraph
(a)(3)(i)(C) to read as follows:

Sec.  86.1823-01  Durability demonstration procedures for exhaust
emissions.

* * * * *
    (a) * * *
    (3) * * *
    (i) * * *
    (C) The DF calculated by these procedures will be used for
determining compliance with FTP exhaust emission standards, SFTP
exhaust emission standards, cold temperature NMHC emission standards,
and cold CO emission standards. At the manufacturer's option and using
procedures approved by the Administrator, a separate DF may be
calculated exclusively using cold CO test data to determine compliance
with cold CO emission standards. Similarly, at the manufacturer's
option and using procedures approved by the Administrator, a separate
DF may be calculated exclusively using cold temperature NMHC test data
to determine compliance with cold temperature NMHC emission standards.
For determining compliance with full useful life cold NMHC emission
standards, the 68-86 degree F 120,000 mile full useful life NMOG DF may
be used. Also at the manufacturer's option and using procedures
approved by the Administrator, a separate DF may be calculated
exclusively using US06 and/or air conditioning (SC03) test data to
determine compliance with the SFTP emission standards.
* * * * *
    22. Section 86.1827-01 is amended by revising paragraph (a)(5) to
read as follows:

Sec.  86.1827-01  Test group determination.

* * * * *
    (a) * * *
    (5) Subject to the same emission standards (or FEL in the case of
cold temperature NMHC standards), except that a manufacturer may
request to group vehicles into the same test group as vehicles subject
to more stringent standards, so long as all the vehicles within the
test group are certified to the most stringent standards applicable to
any vehicle within that test group. Light-duty trucks which are subject
to the same emission standards as light-duty vehicles with the
exception of the light-duty truck idle CO standard and/or total HC
standard may be included in the same test group.
* * * * *
    23. A new Sec.  86.1828-10 is added to Subpart S to read as
follows:

Sec.  86.1828-10  Emission data vehicle selection.

    Section 86.1828-10 includes text that specifies requirements that
differ from Sec.  86.1828-01. Where a paragraph in Sec.  86.1828-01 is
identical and applicable to Sec.  86.1828-10, this may be indicated by
specifying the corresponding paragraph and the statement ``[Reserved].
For guidance see Sec.  86.1828-01.'' Where a corresponding paragraph of
Sec.  86.1828-01 is not applicable, this is indicated by the statement
``[Reserved].''
    (a) through (f) [Reserved]. For guidance see Sec.  86.1828-01.
    (g) Cold temperature NMHC testing. For cold temperature NMHC
exhaust emission compliance for each durability group, the vehicle
expected to emit the highest NMHC emissions at 20 degrees F on
candidate in-use vehicles shall be selected from the test vehicles
specified in Sec.  86.1828-01(a). When the expected worst-case cold
temperature NMHC vehicle is also the expected worst-case cold CO
vehicle as selected in paragraph (c) of this section, then cold testing
is required only for that vehicle; otherwise, testing is required for
both the worst-case cold CO vehicle and the worst-case cold temperature
NMHC vehicle.
    24. Section 86.1829-01 is amended by revising paragraph (b)(3) to
read as follows:

Sec.  86.1829-01  Durability and emission testing requirements;
waivers.

* * * * *
    (b) * * *
    (3) Cold temperature CO and cold temperature NMHC Testing. One EDV
in each durability group shall be tested for cold temperature CO and
cold

temperature NMHC exhaust emission compliance in accordance with the
test procedures in subpart C of this part or with alternative
procedures requested by the manufacturer and approved in advance by the
Administrator. The selection of which EDV and test group within the
durability group will be tested for cold temperature CO and cold
temperature NMHC compliance will be determined under the provisions of
Sec.  86.1828-10(c) and (g).
* * * * *
    25. Section 86.1844-01 is amended by revising paragraph (d)(11) to
read as follows:

Sec.  86.1844-01  Information requirements: Application for
certification and submittal of information upon request.

* * * * *
    (d) * * *
    (11) A list of all auxiliary emission control devices (AECD)
installed on any applicable vehicles, including a justification for
each AECD, the parameters they sense and control, a detailed
justification of each AECD which results in a reduction in
effectiveness of the emission control system, and rationale for why the
AECD is not a defeat device as defined under Sec. Sec.  86.1809-01 and
86.1809-10. For any AECD uniquely used at high altitudes, EPA may
request engineering emission data to quantify any emission impact and
validity of the AECD. For any AECD uniquely used on multi-fuel vehicles
when operated on fuels other than gasoline, EPA may request engineering
emission data to quantify any emission impact and validity of the AECD.
* * * * *
    26. A new Sec.  86.1848-10 is added to Subpart S to read as
follows:

Sec.  86.1848-10  Certification.

    Section 86.1848-10 includes text that specifies requirements that
differ from Sec.  86.1848-01. Where a paragraph in Sec.  86.1848-01 is
identical and applicable to Sec.  86.1848-10, this may be indicated by
specifying the corresponding paragraph and the statement ``[Reserved].
For guidance see Sec.  86.1848-01.'' Where a corresponding paragraph of
Sec.  86.1848-01 is not applicable, this is indicated by the statement
``[Reserved].''
    (a) through (b) [Reserved]. For guidance see Sec.  86.1848-01.
    (c) All certificates are conditional upon the following conditions
being met:
    (1) The manufacturer must supply all required information according
to the provisions of Sec. Sec.  86.1843-01 and 86.1844-01.
    (2) The manufacturer must comply with all certification and in-use
emission standards contained in subparts S and H of this part both
during and after model year production.
    (3) The manufacturer must comply with all implementation schedules
sales percentages as required in Sec.  86.1810 or elsewhere in this
part. Failure to meet a required implementation schedule sales
percentage will be considered to be a failure to satisfy a condition
upon which the certificate was issued and any vehicles or trucks sold
in violation of the implementation schedule shall not be covered by the
certificate.
    (4) For incomplete light-duty trucks and incomplete heavy-duty
vehicles, a certificate covers only those new motor vehicles which,
when completed by having the primary load-carrying device or container
attached, conform to the maximum curb weight and frontal area
limitations described in the application for certification as required
in Sec.  86.1844-01.
    (5) The manufacturer must meet the in-use testing and reporting
requirements contained in Sec. Sec.  86.1845-01, 86.1846-01, and
86.1847-01, as applicable. Failure to meet the in-use testing or
reporting requirements shall be considered a failure to satisfy a
condition upon which the certificate was issued. A vehicle or truck
will be considered to be covered by the certificate only if the
manufacturer fulfills this condition upon which the certificate was
issued.
    (6) Vehicles are covered by a certificate of conformity only if
they are in all material respects as described in the manufacturer's
application for certification (Part I and Part II).
    (7) For Tier 2 and interim non-Tier 2 vehicles, all certificates of
conformity issued are conditional upon compliance with all provisions
of Sec. Sec.  86.1811-04, 86.1860-04, 86.1861-04 and 86.1862-04 both
during and after model year production.
    (i) Failure to meet the fleet average NOX requirements
of 0.07g/mi, 0.30 g/mi or 0.20 g/mi, as applicable, will be considered
to be a failure to satisfy the terms and conditions upon which the
certificate(s) was (were) issued and the vehicles sold in violation of
the fleet average NOX standard will not be covered by the
certificate(s).
    (ii) Failure to comply fully with the prohibition against selling
credits that it has not generated or that are not available, as
specified in Sec.  86.1861-04, will be considered to be a failure to
satisfy the terms and conditions upon which the certificate(s) was
(were) issued and the vehicles sold in violation of this prohibition
will not be covered by the certificate(s).
    (iii) Failure to comply fully with the phase-in requirements of
Sec.  86.1811-04, will be considered to be a failure to satisfy the
terms and conditions upon which the certificate(s) was (were) issued
and the vehicles sold which do not comply with Tier 2 or interim non-
Tier 2 requirements, up to the number needed to comply, will not be
covered by the certificate(s).
    (iv) For paragraphs (c)(7)(i) through (iii) of this section:
    (A) The manufacturer must bear the burden of establishing to the
satisfaction of the Administrator that the terms and conditions upon
which the certificate(s) was (were) issued were satisfied.
    (B) For recall and warranty purposes, vehicles not covered by a
certificate of conformity will continue to be held to the standards
stated or referenced in the certificate that otherwise would have
applied to the vehicles.
    (8) For LDV/LLDTs and HLDT/MDPVs, all certificates of conformity
issued are conditional upon compliance with all provisions of
Sec. Sec.  86.1811-10 and 86.1864-10 both during and after model year
production.
    (i) Failure to meet the fleet average cold temperature NMHC
requirements will be considered a failure to satisfy the terms and
conditions upon which the certificate(s) was (were) issued and the
vehicles sold in violation of the fleet average NMHC standard will not
be covered by the certificate(s).
    (ii) Failure to comply fully with the prohibition against selling
credits that are not generated or that are not available, as specified
in Sec.  86.1864-10, will be considered a failure to satisfy the terms
and conditions upon which the certificate(s) was (were) issued and the
vehicles sold in violation of this prohibition will not be covered by
the certificate(s).
    (iii) Failure to comply fully with the phase-in requirements of
Sec.  86.1811-10 will be considered a failure to satisfy the terms and
conditions upon which the certificate(s) was (were) issued and the
vehicles sold that do not comply with cold temperature NMHC
requirements, up to the number needed to comply, will not be covered by
the certificate(s).
    (iv) For paragraphs (c)(8)(i) through (iii) of this section:
    (A) The manufacturer bears the burden of establishing to the
satisfaction of the Administrator that the terms and conditions upon
which the certificate(s) was (were) issued were satisfied.
    (B) For recall and warranty purposes, vehicles not covered by a
certificate of conformity will continue to be held to the standards
stated or referenced in the

certificate that otherwise would have applied to the vehicles.
    (d) through (i) [Reserved]. For guidance see Sec.  86.1848-01.
    27. A new Sec.  86.1864-10 is added to Subpart S to read as
follows:

Sec.  86.1864-10   How to comply with the fleet average cold
temperature NMHC standards.

    (a) Applicability. Cold temperature NMHC exhaust emission standards
apply to the following vehicles, subject to the phase-in requirements
in Sec.  86.1811-10(g)(3) and (4):
    (1) 2010 and later model year LDV/LLDTs.
    (2) 2012 and later model year HLDT/MDPVs.
    (3) Aftermarket conversion systems as defined in 40 CFR 85.502,
including conversion of MDPVs.
    (4) Vehicles imported by ICIs as defined in 40 CFR 85.1502.
    (b) Useful life requirements. Full useful life requirements for
cold temperature NMHC standards are defined in Sec.  86.1805-04(g).
There is not an intermediate useful life standard for cold temperature
NMHC standards.
    (c) Altitude. Altitude requirements for cold temperature NMHC
standards are provided in Sec.  86.1810-09(f).
    (d) Small volume manufacturer certification procedures.
Certification procedures for small volume manufacturers are provided in
Sec.  86.1838-01.
    (e) Cold temperature NMHC standards. Fleet average cold temperature
NMHC standards are provided in Sec.  86.1811-10(g)(2).
    (f) Phase-in. Phase-in of the cold temperature NMHC standards are
provided in Sec.  86.1811-10(g)(3) and (4).
    (g) Phase-in flexibilities for small volume manufacturers. Phase-in
flexibilities for small volume manufacturer compliance with the cold
temperature NMHC standards are provided in Sec.  86.1811-04(k)(5).
    (h) Hardship provisions for small volume manufacturers. Hardship
provisions for small volume manufacturers related to the cold
temperature NMHC standards are provided in Sec.  86.1811-04(q)(1).
    (i) In-use standards for applicable phase-in models. In-use cold
temperature NMHC standards for applicable phase-in models are provided
in Sec.  86.1811-10(u).
    (j) Durability procedures and method of determining deterioration
factors (DFs). The durability data vehicle selection procedures of
Sec.  86.1822-01 and the durability demonstration procedures of Sec.
86.1823-06 apply for cold NMHC standards. For determining compliance
with full useful life cold temperature NMHC emission standards, the 68-
86 degree F, 120,000 mile full useful life NMOG DF may be used.
    (k) Vehicle test procedure. (1) The test procedure for
demonstrating compliance with cold temperature NMHC standards is
contained in subpart C of this part. With prior EPA approval,
alternative testing procedures may be used, as specified in Sec.
86.106-96(a), provided cold temperature NMHC emissions do not decrease
as a result of an alternative testing procedure.
    (2) Testing of all LDVs, LDTs and MDPVs to determine compliance
with cold temperature NMHC exhaust emission standards set forth in this
section must be on a loaded vehicle weight (LVW) basis, as defined in
Sec.  86.1803-01.
    (3) Testing for the purpose of providing certification data is
required only at low altitude conditions and only for vehicles that can
operate on gasoline, except as requested in Sec. Sec.  86.1810-09(f)
and 86.1844-01(d)(11). If hardware and software emission control
strategies used during low altitude condition testing are not used
similarly in-use across all altitudes, the manufacturer will include a
statement in the application for certification, in accordance with
Sec. Sec.  86.1844-01(d)(11) and Sec.  86.1810-09(f), stating what the
different strategies are and why they are used. If hardware and
software emission control strategies used during testing with gasoline
are not used similarly with all fuels that can be used in multi-fuel
vehicles, the manufacturer will include a statement in the application
for certification, in accordance with Sec. Sec.  86.1844-01(d)(11) and
86.1810-09(f), stating what the different strategies are and why they
are used. For example, unless a manufacturer states otherwise, air
pumps used to control emissions on dedicated gasoline vehicles or
multi-fuel vehicles during low altitude conditions must also be used to
control emissions at high altitude conditions, and software used to
control emissions or closed loop operation must also operate similarly
at low and high altitude conditions and similarly when multi-fueled
vehicles are operated on gasoline and alternate fuels. These examples
are for illustrative purposes only; similar strategies would apply to
other currently used emission control technologies and/or emerging or
future technologies.
    (l) Emission data vehicle (EDV) selection. Provisions for selecting
the appropriate EDV for the cold temperature NMHC standards are
provided in Sec. Sec.  86.1828-10(g) and 86.1829-01(b)(3).
    (m) Calculating the fleet average cold temperature NMHC standard.
Manufacturers will compute separate sales-weighted fleet average cold
temperature NMHC emissions at the end of the model year for LDV/LLDTs
and HLDT/MDPVs, using actual sales, and certifying test groups to FELs,
as defined in Sec.  86.1803-01. The FEL becomes the standard for each
test group, and every test group can have a different FEL. The
certification resolution for the FEL will be one decimal point. LDVs
and LLDTs must be grouped together when calculating the fleet average,
and HLDTs and MDPVs must also be grouped together to determine the
fleet average. Manufacturers must compute the sales-weighted cold
temperature NMHC fleet averages using the following equation, rounded
to the nearest tenth:

Fleet average cold temperature NMHC exhaust emissions =

[Sigma](N x FEL) / Total number of vehicles sold of the applicable
weight category (i.e., either LDV + LLDTs, or HLDT + MDPVs)

Where:

N = The number of LDVs and LLDTs, or HLDTs and MDPVs, sold within the
applicable FEL, based on vehicles counted to the point of first sale.

FEL = Family Emission Limit.

    (n) Certification compliance and enforcement requirements for cold
temperature NMHC standards. (1) In addition to the compliance and
enforcement requirements provided throughout Sec.  86.1864-10,
additional conditions are included in the provisions of Sec.  86.1848-
10(c)(8).
    (2) The certificate issued for each test group requires all
vehicles within that test group to meet the emission standard or FEL to
which the vehicles were certified.
    (3) Each manufacturer must comply with the applicable cold
temperature NMHC fleet average standard on a sales-weighted average
basis, at the end of each model year, using the procedure described in
paragraph (m) of this section.
    (4) During a phase-in year, the manufacturer must comply with the
applicable cold temperature NMHC fleet average standard for the
required phase-in percentage for that year as specified in Sec.
86.1811-10(g)(3) or (4).
    (5) Manufacturers must compute separate cold temperature NMHC fleet
averages for LDV/LLDTs and HLDT/MDPVs. The sales-weighted cold
temperature NMHC fleet averages must be compared with the applicable
fleet average standard.

    (6) Each manufacturer must comply on an annual basis with the fleet
average standards as follows:
    (i) Manufacturers must report in their annual reports to the Agency
that they met the relevant corporate average standard by showing that
their sales-weighted average cold temperature NMHC emissions of LDV/
LLDTs and HLDT/MDPVs, as applicable, are at or below the applicable
fleet average standard;
    (ii) If the sales-weighted average is above the applicable fleet
average standard, manufacturers must obtain and apply sufficient NMHC
credits, as appropriate, and as permitted under paragraph (o)(8) of
this section. A manufacturer must show via the use of credits that they
have offset any exceedence of the corporate average standard.
Manufacturers shall also report their credit balances or deficits.
    (iii) If a manufacturer fails to meet the corporate average cold
temperature NMHC standard for two consecutive years, as required in
paragraph (o)(8) of this section, the vehicles causing the corporate
average exceedence will be considered not covered by the certificate of
conformity. A manufacturer will be subject to penalties on an
individual-vehicle basis for sale of vehicles not covered by a
certificate.
    (iv) EPA will review each manufacturer's sales to designate the
vehicles that caused the exceedence of the corporate average standard.
EPA will designate as nonconforming those vehicles in test groups with
the highest certification emission values first, continuing until a
number of vehicles equal to the calculated number of noncomplying
vehicles as determined above is reached. In a group where only a
portion of vehicles would be deemed nonconforming, EPA will determine
the actual nonconforming vehicles by counting backwards from the last
vehicle produced in that test group. Manufacturers will be liable for
penalties for each vehicle sold that is not covered by a certificate.
    (o) How does the cold temperature NMHC averaging, banking and
trading (ABT) program work? (1) Manufacturers shall average the cold
temperature NMHC emissions of their vehicles and comply with the cold
temperature NMHC fleet average corporate standard. Credits may be
generated during and after the phase-in period. Credits may also be
generated prior to the phase-in periods as described in paragraph (5)
of this section. A manufacturer whose cold temperature NMHC fleet
average emissions exceed the 0.3 g/mile standard for LDV/LLDTs, or 0.5
g/mi for HLDT/MDPVs, must complete the calculation in paragraph (o)(4)
of this section to determine the size of its NMHC credit deficit. A
manufacturer whose cold temperature NMHC fleet average emissions are
less than the 0.3 g/mile standard for LDV/LLDTs, or less than 0.5 g/mi
for HLDT/MDPVs, must complete the calculation in paragraph (o)(4) of
this section if it desires to generate NMHC credits.
    (2) There are no property rights associated with NMHC credits
generated under this subpart. Credits are a limited authorization to
emit the designated amount of emissions. Nothing in this part or any
other provision of law should be construed to limit EPA's authority to
terminate or limit this authorization through a rulemaking.
    (3) Each manufacturer must comply with the reporting and
recordkeeping requirements of paragraph (p) of this section for NMHC
credits, including early credits. The averaging, banking and trading
program shall be enforced through the certificate of conformity that
allows the manufacturer to introduce any regulated vehicles into
commerce.
    (4) Credits are earned on the last day of the model year.
Manufacturers must calculate, for a given model year, the number of
credits or debits it has generated according to the following equation,
rounded to the nearest tenth:

NMHC Credits or Debits = (Cold Temperature NMHC Standard-Manufacturer's
Sales-Weighted Fleet Average Cold Temperature NMHC Emissions) x (Total
Number of Vehicles Sold)

Where:

Cold Temperature NMHC Standard = 0.3 g/mi for LDV/LLDTs or 0.5 g/mi for
HLDT/MDPV, per Sec.  86.1811-10(g)(2).

Manufacturer's Sales-Weighted Fleet Average Cold Temperature NMHC
Emissions = average calculated according to paragraph (m) of this
section.