(b) The pre-compliance reports due in 2008 and succeeding years
must provide an update of the progress in each of these areas and
include actual values where available.
    (c) The pre-compliance reporting requirements of this section do
not apply to refineries that only produce products exempt from the
requirements of this subpart per Sec.  80.1235(b).

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

    (a) Beginning with earliest applicable date specified in Sec.
80.1347(a)(2), any refiner for each of its refineries, and any importer
for the gasoline it imports, shall submit to EPA an Annual Gasoline
Benzene Report that contains the information required in this section,
and such other information as EPA may require for each applicable
averaging period.
    (b) The Annual Gasoline Benzene Report shall contain 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)(i) The annual average benzene concentration, per Sec.  80.1238.
    (ii) The maximum average benzene concentration per Sec.
80.1240(b).
    (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 per Sec.  80.1240.
    (11) The number of banked benzene credits.
    (12) Projected credit generation through compliance year 2015.
    (13) Projected credit use through compliance year 2015.
    (c) EPA may require submission of additional information to verify
compliance with the requirements of this subpart.
    (d) The report required by paragraph (a) of this section shall be--
    (1) Submitted on forms and following procedures specified by the
Administrator.
    (2) Submitted to EPA by the last day of February each year for the
prior calendar year averaging period.
    (3) Signed and certified as correct by the owner or a responsible
corporate officer of the refiner or importer.

Attest Engagements

Sec.  80.1356  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:
    (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 that 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. Take the following steps
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 statement from the company representative
identifying 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 the 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 this number with the report to EPA.
    (4) Obtain a statement from the refiner or importer 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 these figures 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 these
figures 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 credits as
follows:
    (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.  80.1358  What acts are prohibited under the gasoline benzene
program?

    No person shall--
    (a)(1) Produce or import gasoline subject to this subpart that does
not comply with the applicable benzene standards under Sec.  80.1230.
    (2) Fail to meet any other requirements of this subpart.
    (b) Cause another person to commit an act in violation of paragraph
(a) of this section.

Sec.  80.1359  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 standards of this subpart shall be
determined based on the benzene concentration of the gasoline, measured
using the methodologies specified in Sec.  80.46(e), and other
allowable adjustments. 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 standards, 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.  80.1360  Who is liable for violations under the gasoline benzene
program?

    (a) The following persons are liable for violations of prohibited
acts:
    (1) Any refiner or importer that violates Sec.  80.1358(a) is
liable for the violation.
    (2) Any person that causes another party to violate Sec.
80.1358(a) is liable for a violation of Sec.  80.1358(b).
    (3) Any parent corporation is liable for any violations of this
subpart that are committed by any of its wholly-owned subsidiaries.
    (4) 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
a facility that is owned by the joint owners, or a facility that is
committed by the joint venture operation or any of the joint owners of
the facility.
    (b) Any person who violates Sec.  80.1358 is liable for the
violation.

Sec.  80.1361  What penalties apply under the gasoline benzene program?

    (a) Any person liable for a violation under Sec.  80.1360 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.  80.1358(a) and (b) for a
violation of the applicable benzene standards or causing another person
to violate the requirements 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.  80.1360(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.  80.1360(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.  80.1363  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.
    (6) 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 specified in Sec. Sec.
80.1280 and 80.1285 to establish a baseline of the volume of gasoline
that was produced at the refinery and imported into the United States
during the applicable years.
    (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.  80.1358; and
    (vi) The independent audit requirements in this section and in
Sec.  80.1356.
    (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(f)(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, Sec.  80.1356, and other applicable attest
engagement provisions, and must be submitted to the Administrator of
EPA for the prior annual compliance period within the time period
required under Sec.  80.130. 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 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 Sec.  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 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 80.1363 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

0
11a. The authority citation for part 85 continues to read as follows:

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

Subpart P--[Amended]

0
11b. 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

0
12. The authority citation for part 86 continues to read as follows:

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

Subpart H--[Amended]

0
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]

0
14. Section 86.1803-01 is amended by revising the definition of
``Banking'' and adding the definition for ``Fleet average cold
temperature NMHC standard'' in alphabetical order 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.
* * * * *

0
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.

0
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 that 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 (the upper bound of the temperatue test
range) and 68 [deg]F (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 and the CO standard applicable at 68 [deg]F. The guideline for
NMHC emission congruity across the intermediate temperature range is
the linear interpolation between the NMHC FEL pass limit (e.g. 0.3499
g/mi for a 0.3 g/mi FEL) applicable at 20 [deg]F and the Tier 2 NMOG
standard to which the vehicle was certified at 68 [deg]F, 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 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 FEL pass limit, the vehicle will be presumed
to have a defeat device unless the manufacturer provides evidence to
EPA's satisfaction that the cause of the test result in question is not
due to a defeat device.
    (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 pass limit the
Administrator may investigate the vehicle design for the presence of a
defeat device under paragraph (d) of this section.
    (d) The following provisions apply 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 Test Procedure or Supplemental Federal Test
Procedure (FTP or SFTP) when the vehicle is operated under conditions
that 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 must
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 must provide an explanation to 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 [deg]F. For diesel vehicles, the
engineering evaluation must also include particulate emissions.

0
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) must
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 must submit an engineering evaluation
indicating that common calibration approaches are utilized at high
altitudes. Any deviation from low altitude emission control practices
must be included in the auxiliary emission control device (AECD)
descriptions submitted at certification. Any AECD specific to high
altitude must 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.

0
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
100% compliance with the LDV/LLDT evaporative emissions standards in
Table S09-2 of Sec.  86.1811-09(e) until 2016. (The hardship relief may
be extended one additional model year--two 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
100% compliance with the HLDT/MDPV evaporative emissions standards in
Table S09-2 of Sec.  86.1811-09(e) until 2016. (The hardship relief may
be extended one additional model year--two 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--two 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--two model
years total.)
* * * * *

0
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                diurnal+hot     diurnal+hot
                                               soak            soak
------------------------------------------------------------------------
LDVs....................................            0.50            0.65
LLDTs...................................            0.65            0.85
HLDTs...................................            0.90            1.15
MDPVs...................................            1.00            1.25
------------------------------------------------------------------------

    (iii) For multi-fueled vehicles operating on non-gasoline fuel,
manufacturers must comply with the phase-in requirements in Table S09-3
of this paragraph for the evaporative emission requirements specified
in Table S09-2 of this section. Phase-in schedules are grouped together
for LDV/LLDTs and HLDT/MDPVs. These requirements specify the minimum
percentage of the manufacturer's LDV/LLDT/HLDT/MDPV 50-State sales, by
model year, that must meet the requirements for their full useful
lives. Table S09-3 follows:

 Table S09-3.--Phase-In Percentages for Light-Duty Diurnal Plus Hot Soak
  Evaporative Emission Standards: Non-Gasoline Portion of Multi-Fueled
                                Vehicles
------------------------------------------------------------------------
                                                          Percentage of
                                                          vehicles that
                                                            must meet
                      Model year                           evaporative
                                                            emission
                                                          requirements
------------------------------------------------------------------------
2012..................................................                30
2013..................................................                60
2014 and subsequent...................................               100
------------------------------------------------------------------------

    (2) through (6) [Reserved]. For guidance see Sec.  86.1811-04.
    (7) In cases where vehicles are certified to evaporative emission
standards in Tables S09-1 and S09-2 of this section, the Administrator
may accept evaporative emissions data for low altitude testing in
accordance with California test conditions and test procedures (in lieu
of the evaporative emission test condition and test procedure
requirements of subpart B of this part).
    (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, as
shown in Table S09-4. For example, evaporative families first certified
to the LDV/LLDT standards in Table S09-1 in the 2011 model year must
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, as shown in Table S09-5. For example, evaporative
families first certified to the HLDT/MDPV standards in Table S09-1 in
the 2012 model year must 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).

    Table S09-4.--Schedule for In-Use LDV/LLDT Diurnal Plus Hot Soak
                     Evaporative Emission Standards
------------------------------------------------------------------------
           Model Year of Introduction              2009    2010    2011
------------------------------------------------------------------------
Models Years That Tier 2 Standards Apply to In-     2009    2010    2011
 use Vehicles...................................
                                                    2010    2011    2012
                                                    2011    2012    2013
------------------------------------------------------------------------

    Table S09-5--Schedule For In-Use HLDT/MDPV Diurnal Plus Hot Soak
                     Evaporative Emission Standards
------------------------------------------------------------------------
         Model Year of Introduction 2010           2010    2011    2012
------------------------------------------------------------------------
Models Years That Tier 2 Standards Apply to In-     2010    2011    2012
 use Vehicles...................................
                                                    2011    2012    2013
                                                    2012    2013    2014
------------------------------------------------------------------------

0
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. Cold temperature
CO exhaust emission standards apply over a useful life of 50,000 miles
or 5 years (whichever occurs first) as follows:
    (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 the following table:

    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) & MDPVs (>8,500-10,000                 0.5
 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 the applicable standard. 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. 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 alternate 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
alternate 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 alternate phase-in schedule will be acceptable
if it satisfies the following conditions (where API = Anticipated
Phase-In percentage for the referenced model year):
    LDV/LLDTs:

(6xAPI2008) + (5xAPI2009) +
(4xAPI2010) + (3xAPI2011) +
(2xAPI2012) + (1xAPI2013) [gteqt] 500%, and
(6xAPI2008) + (5xAPI2009) +
(4xAPI2010) [gteqt] 100%

    HLDT/MDPVs:

(6xAPI2010) + (5xAPI2011) +
(4xAPI2012) + (3xAPI2013) +
(2xAPI2014) + (1xAPI2015) [gteqt] 500%, and
(6xAPI2010) + (5xAPI2011) +
(4xAPI2012) [gteqt] 100%,
     or

(6xAPI2010) + (5xAPI2011) +
(4xAPI2012) + (3xAPI2013) +
(2xAPI2014) + (1xAPI2015) [gteqt] 600%

    (ii)(A) For LDV/LLDTs, if the sum of products in paragraph
(g)(4)(i) of this section is greater than or equal to 500%, which is
the sum of products from the primary phase-in schedule (4x25% + 3x50% +
2x75% + 1x100% = 500%), then the alternate 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. For example, a
phase-in schedule for LDV/LLDTs of 5/10/10/45/80/100 that begins in
2008 would calculate as (6x5%) + (5x10%) + (4x10%) = 120% and would be
acceptable for 2008-2010. The full phase-in would calculate as (6x5%) +
(5x10%) + (4x10%) + (3x45%) + (2x80%) + (1x100%) = 515% and would be
acceptable for 2008-2013.
    (B) For HLDT/MDPVs, if the sum of products in paragraph (g)(4)(i)
of this section is greater than or equal to 500%, which is the sum of
products from the primary phase-in schedule (4x25% + 3x50% + 2x75% +
1x100% = 500%), then the alternate 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 2012 and earlier for HLDT/MDPVs. Alternately, if the sum of
products is greater than or equal to 600%, then the alternate phase-in
schedule is acceptable, except as prohibited in paragraphs (g)(4)(i)
and (iii) of this section. If the sum of products is greater than or
equal to 600%, then there are no requirements on the sum of products
for model years 2012 and earlier.
    (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 alternate
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 0.1 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.
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.
    (h) 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 Standards 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
----------------------------------------------------------------------------------------------------------------

0
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 temperature CO emission standards. At the manufacturer's
option and using procedures approved by the Administrator, a separate
DF may be calculated exclusively using cold temperature CO test data to
determine compliance with cold temperature 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 temperature NMHC emission standards, the 68-86
[deg]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.
* * * * *

0
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 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.
* * * * *

0
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 manufacturer
must select the vehicle expected to emit the highest NMHC emissions at
20 [deg]F on candidate in-use vehicles 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 temperature 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 temperature CO vehicle and the worst-case cold
temperature NMHC vehicle.

0
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. The
manufacturer must test one EDV in each durability group 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 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).
* * * * *

0
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.
* * * * *

0
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) The following conditions apply to all certificates:
    (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 are not to be covered by
the certificate.
    (4) For incomplete light-duty trucks and incomplete heavy-duty
vehicles, a certificate covers only those new motor vehicles that, 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 is
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. 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. 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.
    (i) Failure to meet the fleet average NOX requirements
of 0.07g/mi, 0.3 g/mi or 0.2 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).
    (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. 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. 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.
    (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).
    (d) through (i) [Reserved]. For guidance see Sec.  86.1848-01.

0
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 temperature NMHC standards. For determining
compliance with full useful life cold temperature NMHC emission
standards, the 68-86 [deg]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 test results are
equivalent or superior.
    (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 across all altitudes for in-use operation, the manufacturer
must 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. 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 must 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 0.1 grams/mile. 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 0.1 grams/mile:

Fleet average cold temperature NMHC exhaust emissions (grams/mile) =
[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 (grams/mile).

    (n) Certification compliance and enforcement requirements for cold
temperature NMHC standards. (1) Compliance and enforcement requirements
are provided in Sec.  86.1864-10 and 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 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 must also
include their credit balances or deficits.
    (iii) If a manufacturer fails to meet the corporate average cold
temperature NMHC standard for two consecutive years, the vehicles
causing the corporate average exceedence will be considered not covered
by the certificate of conformity (see paragraph (o)(8) of this
section). 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
reaching a number of vehicles equal to the calculated number of
noncomplying vehicles as determined above. 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) Requirements for the cold temperature NMHC averaging, banking
and trading (ABT) program. (1) Manufacturers must average the cold
temperature NMHC emissions of their vehicles and comply with the cold
temperature NMHC fleet average corporate standard. Manufacturers may
generate credits during and after the phase-in period. Manufacturers
may generate credits prior to the phase-in periods as described in
paragraph (o)(5) of this section. A manufacturer whose cold temperature
NMHC fleet average emissions exceed the applicable standard 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
applicable standard must complete the calculation in paragraph (o)(4)
of this section 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 is enforceable 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 0.1 grams/mile:

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 grams/mile for LDV/LLDTs or 0.5
grams/mile 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.
Total Number of Vehicles Sold = Total 50-State sales based on the
point of first sale.

    (5) The following provisions apply for early banking:
    (i) Manufacturers may certify LDV/LLDTs to the cold temperature
NMHC exhaust standards in Sec.  86.1811-10(g)(2) for model years 2008-
2009 to bank credits for use in the 2010 and later model years.
Manufacturers may certify HLDT/MDPVs to the cold temperature NMHC
exhaust standards in Sec.  86.1811-10(g)(2) for model years 2010-2011
to bank credits for use in the 2012 and later model years.
    (ii) This process is referred to as ``early banking'' and the
resultant credits are referred to as ``early credits.'' To bank early
credits, a manufacturer must comply with all exhaust emission standards
and requirements applicable to LDV/LLDTs and/or HLDT/MDPVs. To generate
early credits, a manufacturer must separately compute the sales-
weighted cold temperature NMHC average of the LDV/LLDTs and HLDT/MDPVs
it certifies to the exhaust requirements and separately compute credits
using the calculations in paragraph (o)(4) of this section. Early HLDT/
MDPV credits may not be applied to LDV/LLDTs before the 2010 model
year. Early LDV/LLDT credits may not be applied to HLDT/ MDPV before
the 2012 model year.
    (6) NMHC credits are not subject to any discount or expiration date
except as required under the deficit carryforward provisions of
paragraph (o)(8) of this section. There is no discounting of unused
credits. NMHC credits have unlimited lives, subject to the limitations
of paragraph (o)(2) of this section.
    (7) Credits may be used as follows:
    (i) Credits generated and calculated according to the method in
paragraph (o)(4) of this section may be used only to offset deficits
accrued with respect to the standard in Sec.  86.1811-10(g)(2). Credits
may be banked and used in a future model year in which a manufacturer's
average cold temperature NMHC level exceeds the applicable standard.
Credits may be exchanged between the LDT/LLDT and HLDT/MDPV fleets of a
given manufacturer. Credits may also be traded to another manufacturer
according to the provisions in paragraph (o)(9) of this section. Before
trading or carrying over credits to the next model year, a manufacturer
must apply available credits to offset any credit deficit, where the
deadline to offset that credit deficit has not yet passed.
    (ii) The use of credits shall not be permitted to address Selective
Enforcement Auditing or in-use testing failures. The enforcement of the
averaging standard occurs through the vehicle's certificate of
conformity. A manufacturer's certificate of conformity is conditioned
upon compliance with the averaging provisions. The certificate will be
void ab initio if a manufacturer fails to meet the corporate average
standard and does not obtain appropriate credits to cover its
shortfalls in that model year or in the subsequent model year (see
deficit carryforward provision in paragraph (o)(8) of this section).
Manufacturers must track their certification levels and sales unless
they produce only vehicles certified to cold temperature NMHC levels
below the standard and do not plan to bank credits.
    (8) The following provisions apply if debits are accrued:
    (i) If a manufacturer calculates that it has negative credits (also
called ``debits'' or a ``credit deficit'') for a given model year, it
may carry that deficit forward into the next model year. Such a carry-
forward may only occur after the manufacturer exhausts any supply of
banked credits. At the end of that next model year, the deficit must be
covered with an appropriate number of credits that the manufacturer
generates or purchases. Any remaining deficit is subject to an
enforcement action, as described in this paragraph (o)(8).
Manufacturers are not permitted to have a credit deficit for two
consecutive years.
    (ii) If debits are not offset within the specified time period, the
number of vehicles not meeting the fleet average cold temperature NMHC
standards (and therefore not covered by the certificate) must be
calculated by dividing the total amount of debits for the model year by
the fleet average cold temperature NMHC standard applicable for the
model year in which the debits were first incurred.
    (iii) EPA will determine the number of vehicles for which the
condition on the certificate was not satisfied by designating vehicles
in those test groups with the highest certification cold temperature
NMHC emission values first and continuing until reaching a number of
vehicles equal to the calculated number of noncomplying vehicles as
determined above. If this calculation determines that only a portion of
vehicles in a test group contribute to the debit situation, then EPA
will designate actual vehicles in that test group as not covered by the
certificate, starting with the last vehicle produced and counting
backwards.

    (iv)(A) If a manufacturer ceases production of LDV/LLDTs and HLDT/
MDPVs, the manufacturer continues to be responsible for offsetting any
debits outstanding within the required time period. Any failure to
offset the debits will be considered a violation of paragraph (o)(8)(i)
of this section and may subject the manufacturer to an enforcement
action for sale of vehicles not covered by a certificate, pursuant to
paragraphs (o)(8)(ii) and (iii) of this section.
    (B) If a manufacturer is purchased by, merges with, or otherwise
combines with another manufacturer, the controlling entity is
responsible for offsetting any debits outstanding within the required
time period. Any failure to offset the debits will be considered a
violation of paragraph (o)(8)(i) of this section and may subject the
manufacturer to an enforcement action for sale of vehicles not covered
by a certificate, pursuant to paragraphs (o)(8)(ii) and (iii) of this
section.
    (v) For purposes of calculating the statute of limitations, a
violation of the requirements of paragraph (o)(8)(i) of this section, a
failure to satisfy the conditions upon which a certificate(s) was
issued and hence a sale of vehicles not covered by the certificate, all
occur upon the expiration of the deadline for offsetting debits
specified in paragraph (o)(8)(i) of this section.
    (9) The following provisions apply to NMHC credit trading:
    (i) EPA may reject NMHC credit trades if the involved manufacturers
fail to submit the credit trade notification in the annual report. A
manufacturer may not sell credits that are not available for sale
pursuant to the provisions in paragraphs (o)(7)(i) of this section.
    (ii) In the event of a negative credit balance resulting from a
transaction that a manufacturer could not cover by the reporting
deadline for the model year in which the trade occurred, both the buyer
and seller are liable, except in cases involving fraud. EPA may void ab
initio the certificates of conformity of all engine families
participating in such a trade.
    (iii) A manufacturer may only trade credits that it has generated
pursuant to paragraph (o)(4) of this section or acquired from another
party.
    (p) Maintenance of records and submittal of information relevant to
compliance with fleet average cold temperature NMHC standards. (1)
Maintenance of records. (i) Manufacturers producing any light-duty
vehicles, light-duty trucks, or medium-duty passenger vehicles subject
to the provisions in this subpart must establish, maintain, and retain
all the following information in adequately organized records for each
model year:
    (A) Model year.
    (B) Applicable fleet average cold temperature NMHC standards.
    (C) Fleet average cold temperature NMHC value.
    (D) All values used in calculating the fleet average cold
temperature NMHC value.
    (ii) Manufacturers producing any light-duty vehicles, light-duty
trucks, or medium-duty passenger vehicles subject to the provisions in
this subpart must establish, maintain, and retain all the following
information in adequately organized records for each LDV/T or MDPV
subject to this subpart:
    (A) Model year.
    (B) Applicable fleet average cold temperature NMHC standard.
    (C) EPA test group.
    (D) Assembly plant.
    (E) Vehicle identification number.
    (F) Cold temperature NMHC FEL to which the LDV, LDT, or MDPV is
certified.
    (G) Information on the point of first sale, including the
purchaser, city, and state.
    (iii) Manufacturers must retain all required records for a period
of eight years from the due date for the annual report. Records may be
stored in any format and on any media, as long as manufacturers can
promptly send EPA organized, written records in English if we ask for
them. Manufacturers must keep records readily available as EPA may
review them at any time.
    (iv) The Administrator may require the manufacturer to retain
additional records or submit information not specifically required by
this section.
    (v) Pursuant to a request made by the Administrator, the
manufacturer must submit to the Administrator the information that the
manufacturer is required to retain.
    (vi) EPA may void ab initio a certificate of conformity for
vehicles certified to emission standards as set forth or otherwise
referenced in this subpart for which the manufacturer fails to retain
the records required in this section or to provide such information to
the Administrator upon request.
    (2) Reporting. (i) Each covered manufacturer must submit an annual
report. The annual report must contain for each applicable cold
temperature NMHC standard, the calculated fleet average cold
temperature NMHC value, all values required to calculate the cold
temperature NMHC emissions value, the number of credits generated or
debits incurred, all the values required to calculate the credits or
debits, the resulting balance of credits or debits, and sufficient
information to show compliance with all phase-in or alternate phase-in
requirements.
    (ii) For each applicable fleet average cold temperature NMHC
standard, the annual report must also include documentation on all
credit transactions the manufacturer has engaged in since those
included in the last report. Information for each transaction must
include all of the following:
    (A) Name of credit provider.
    (B) Name of credit recipient.
    (C) Date the trade occurred.
    (D) Quantity of credits traded.
    (E) Model year in which the credits were earned.
    (iii) Unless a manufacturer reports the data required by this
section in the annual production report required under Sec.  86.1844-
01(e), a manufacturer must submit an annual report for each model year
after production ends for all affected vehicles produced by the
manufacturer subject to the provisions of this subpart and no later
than May 1 of the calendar year following the given model year. Annual
reports must be submitted to: Director, Compliance and Innovative
Strategies Division, U.S. Environmental Protection Agency, 2000
Traverwood, Ann Arbor, Michigan 48105.
    (iv) Failure by a manufacturer to submit the annual report in the
specified time period for all vehicles subject to the provisions in
this section is a violation of section 203(a)(1) of the Clean Air Act
(42 U.S.C. 7522 (a)(1)) for each applicable vehicle produced by that
manufacturer.
    (v) If EPA or the manufacturer determines that a reporting error
occurred on an annual report previously submitted to EPA, the
manufacturer's credit or debit calculations will be recalculated. EPA
may void erroneous credits, unless traded, and will adjust erroneous
debits. In the case of traded erroneous credits, EPA must adjust the
selling manufacturer's credit balance to reflect the sale of such
credits and any resulting credit deficit.
    (3) Notice of opportunity for hearing. Any revoking of the
certificate under paragraph (p)(1)(vi) of this section will be made
only after EPA has offered the affected manufacturer an opportunity for
a hearing conducted in accordance with Sec.  86.614-84 for light-duty