...............  4..............  352............  Notch 4.
Phase 2........................  0.389..........  5..............  304............  Notch 5.
----------------------------------------------------------------------------------------------------------------
                                                Phase Transition
----------------------------------------------------------------------------------------------------------------
                                 ...............  6..............  144............  Notch 6.
                                 ...............  7..............  111............  Notch 7.
Phase 3........................  0.231..........  8..............  600............  Notch 8.
----------------------------------------------------------------------------------------------------------------
\1\ See paragraph (d) of this section for alternate pre-test provisions.
\2\ Operate at normal idle for modes A and B if not equipped with multiple idle settings.
3 Operate at normal idle if not equipped with a dynamic brake.

                        Table 2 to Sec.   1033.520.--Switch Locomotive Ramped Modal Cycle
----------------------------------------------------------------------------------------------------------------
                                    Weighting                        Time in mode
         RMC test phase               factor          RMC mode        (seconds)             Notch setting
----------------------------------------------------------------------------------------------------------------
Pre-test idle..................  NA.............  NA.............  600 to 900.....  Lowest idle setting.\1\
Phase 1........................  ...............  A..............  600............  Low Idle.\2\
(Idle test)....................  0.598..........  B..............  600............  Normal Idle.
----------------------------------------------------------------------------------------------------------------
                                                Phase Transition
----------------------------------------------------------------------------------------------------------------
                                 ...............  1..............  868............  Notch 1.
                                 ...............  2..............  861............  Notch 2.
                                 ...............  3..............  406............  Notch 3.
                                 ...............  4..............  252............  Notch 4.
Phase 2........................  0.377..........  5..............  252............  Notch 5.
----------------------------------------------------------------------------------------------------------------
                                                Phase Transition
----------------------------------------------------------------------------------------------------------------
                                 ...............  6..............  1080...........  Notch 6.
                                 ...............  7..............  144............  Notch 7.
Phase 3........................  0.025..........  8..............  576............  Notch 8.
----------------------------------------------------------------------------------------------------------------
\1\ See paragraph (d) of this section for alternate pre-test provisions.
\2\ Operate at normal idle for modes A and B if not equipped with multiple idle settings.

    (f) Calculate your cycle-weighted brake-specific emission rates as
follows:
    (1) For each test phase j:
    (i) Calculate emission rates (Eij) for each pollutant i
as the total mass emissions divided by the total time in the phase.
    (ii) Calculate average power (Pj) as the total work
divided by the total time in the phase.
    (2) For each pollutant, calculate your cycle-weighted brake-
specific emission rate using the following equation, where
wj is the weighting factor for phase j:
[GRAPHIC] [TIFF OMITTED] TR06MY08.010

Sec.  1033.525  Smoke testing.

    This section describes the equipment and procedures for testing for
smoke emissions when is required.
    (a) This section specifies how to measure smoke emissions using a
full-flow, open path light extinction smokemeter. A light extinction
meter consists of a built-in light beam that traverses the exhaust
smoke plume that issues from exhaust the duct. The light beam must be
at right angles to the axis of the plume. Align the light beam to go
through the plume along the hydraulic diameter (defined in 1065.1001)
of the exhaust stack. Where it is difficult to align the beam to have a
path length equal to the hydraulic diameter (such as a long narrow
rectangular duct), you may align the beam to have a different path
length and correct it to be equivalent to a path length equal to the
hydraulic diameter. The light extinction meter must meet the
requirements of paragraph (b) of this section and the following
requirements:

    (1) Use an incandescent light source with a color temperature range
of 2800K to 3250K, or a light source with a spectral peak between 550
and 570 nanometers.
    (2) Collimate the light beam to a nominal diameter of 3 centimeters
and an angle of divergence within a 6 degree included angle.
    (3) Use a photocell or photodiode light detector. If the light
source is an incandescent lamp, use a detector that has a spectral
response similar to the photopic curve of the human eye (a maximum
response in the range of 550 to 570 nanometers, to less than four
percent of that maximum response below 430 nanometers and above 680
nanometers).
    (4) Attach a collimating tube to the detector with apertures equal
to the beam diameter to restrict the viewing angle of the detector to
within a 16 degree included angle.
    (5) Amplify the detector signal corresponding to the amount of
light.
    (6) You may use an air curtain across the light source and detector
window assemblies to minimize deposition of smoke particles on those
surfaces, provided that it does not measurably affect the opacity of
the plume.
    (7) Minimize distance from the optical centerline to the exhaust
outlet; in no case may it be more than 3.0 meters. The maximum
allowable distance of unducted space upstream of the optical centerline
is 0.5 meters. Center the full flow of the exhaust stream between the
source and detector apertures (or windows and lenses) and on the axis
of the light beam.
    (8) You may use light extinction meters employing substantially
identical measurement principles and producing substantially equivalent
results, but which employ other electronic and optical techniques.
    (b) All smokemeters must meet the following specifications:
    (1) A full-scale deflection response time of 0.5 second or less.
    (2) You may attenuate signal responses with frequencies higher than
10 Hz with a separate low-pass electronic filter with the following
performance characteristics:
    (i) Three decibel point: 10 Hz.
    (ii) Insertion loss: 0.0  0.5 dB.
    (iii) Selectivity: 12 dB down at 40 Hz minimum.
    (iv) Attenuation: 27 dB down at 40 Hz minimum.
    (c) Perform the smoke test by continuously recording smokemeter
response over the entire locomotive test cycle in percent opacity to
within one percent resolution and also simultaneously record operator
demand set point (e.g., notch position). Compare the recorded opacities
to the smoke standards applicable to your locomotive.
    (d) You may use a partial flow sampling smokemeter if you correct
for the path length of your exhaust plume. If you use a partial flow
sampling meter, follow the instrument manufacturer's installation,
calibration, operation, and maintenance procedures.

Sec.  1033.530  Duty cycles and calculations.

    This section describes how to apply the duty cycle to measured
emission rates to calculate cycle-weighted average emission rates.
    (a) Standard duty cycles and calculations. Tables 1 and 2 of this
section show the duty cycle to use to calculate cycle-weighted average
emission rates for locomotives equipped with two idle settings, eight
propulsion notches, and at least one dynamic brake notch and tested
using the Locomotive Test Cycle. Use the appropriate weighting factors
for your locomotive application and calculate cycle-weighted average
emissions as specified in 40 CFR part 1065, subpart G.

      Table 1 to Sec.   1033.530.--Standard Duty Cycle Weighting Factors for Calculating Emission Rates for
                                     Locomotives With Multiple Idle Settings
----------------------------------------------------------------------------------------------------------------
                                                                                Line-haul
                                                                            Line-haul    weighting      Switch
               Notch setting                           Test mode            weighting   factors (no   weighting
                                                                             factors      dynamic      factors
                                                                                brake)
----------------------------------------------------------------------------------------------------------------
Low Idle...................................  A...........................        0.190        0.190        0.299
Normal Idle................................  B...........................        0.190        0.315        0.299
Dynamic Brake..............................  C...........................        0.125        (\1\)        0.000
Notch 1....................................  1...........................        0.065        0.065        0.124
Notch 2....................................  2...........................        0.065        0.065        0.123
Notch 3....................................  3...........................        0.052        0.052        0.058
Notch 4....................................  4...........................        0.044        0.044        0.036
Notch 5....................................  5...........................        0.038        0.038        0.036
Notch 6....................................  6...........................        0.039        0.039        0.015
Notch 7....................................  7...........................        0.030        0.030        0.002
Notch 8....................................  8...........................        0.162        0.162        0.008
----------------------------------------------------------------------------------------------------------------
\1\ Not applicable.

      Table 2 to Sec.   1033.530.--Standard Duty Cycle Weighting Factors for Calculating Emission Rates for
                                     Locomotives With a Single Idle Setting
----------------------------------------------------------------------------------------------------------------
                                                                                Line-haul
               Notch setting                           Test mode            Line-haul   (no dynamic     Switch
                                                                                brake)
----------------------------------------------------------------------------------------------------------------
Normal Idle................................  A...........................        0.380        0.505        0.598
Dynamic Brake..............................  C...........................        0.125        (\1\)        0.000
Notch 1....................................  1...........................        0.065        0.065        0.124
Notch 2....................................  2...........................        0.065        0.065        0.123
Notch 3....................................  3...........................        0.052        0.052        0.058
Notch 4....................................  4...........................        0.044        0.044        0.036
Notch 5....................................  5...........................        0.038        0.038        0.036
Notch 6....................................  6...........................        0.039        0.039        0.015

Notch 7....................................  7...........................        0.030        0.030        0.002
Notch 8....................................  8...........................        0.162        0.162        0.008
----------------------------------------------------------------------------------------------------------------
\1\ Not applicable.

    (b) Idle and dynamic brake notches. The test procedures generally
require you to measure emissions at two idle settings and one dynamic
brake, as follows:
    (1) If your locomotive is equipped with two idle settings and one
or more dynamic brake settings, measure emissions at both idle settings
and the worst case dynamic brake setting, and weight the emissions as
specified in the applicable table of this section. Where it is not
obvious which dynamic brake setting represents worst case, do one of
the following:
    (i) You may measure emissions and power at each dynamic brake point
and average them together.
    (ii) You may measure emissions and power at the dynamic brake point
with the lowest power.
    (2) If your locomotive is equipped with two idle settings and is
not equipped with dynamic brake, use a normal idle weighting factor of
0.315 for the line-haul cycle. If your locomotive is equipped with only
one idle setting and no dynamic brake, use an idle weighting factor of
0.505 for the line-haul cycle.
    (c) Nonstandard notches or no notches. If your locomotive is
equipped with more or less than 8 propulsion notches, recommend an
alternate test cycle based on the in-use locomotive configuration.
Unless you have data demonstrating that your locomotive will be
operated differently from conventional locomotives, recommend weighting
factors that are consistent with the power weightings of the specified
duty cycle. For example, the average load factor for your recommended
cycle (cycle-weighted power divided by rated power) should be
equivalent to those of conventional locomotives. We may also allow the
use of the standard power levels shown in Table 3 to this section for
nonstandard locomotive testing subject to our prior approval. This
paragraph (c) does not allow engines to be tested without consideration
of the actual notches that will be used.

 Table 3 to Sec.   1033.530.--Standard Notch Power Levels Expressed as a
                        Percentage of Rated Power
------------------------------------------------------------------------
                                                                Percent
------------------------------------------------------------------------
Normal Idle..................................................       0.00
Dynamic Brake................................................       0.00
Notch 1......................................................       4.50
Notch 2......................................................      11.50
Notch 3......................................................      23.50
Notch 4......................................................      35.00
Notch 5......................................................      48.50
Notch 6......................................................      64.00
Notch 7......................................................      85.00
Notch 8......................................................     100.00
------------------------------------------------------------------------

    (d) Optional Ramped Modal Cycle Testing. Tables 1 and 2 of Sec.
1033.520 show the weighting factors to use to calculate cycle-weighted
average emission rates for the applicable locomotive ramped modal
cycle. Use the weighting factors for the ramped modal cycle for your
locomotive application and calculate cycle-weighted average emissions
as specified in 40 CFR part 1065, subpart G.
    (e) Automated Start-Stop. For locomotive equipped with features
that shut the engine off after prolonged periods of idle, multiply the
measured idle mass emission rate over the idle portion of the
applicable test cycles by a factor equal to one minus the estimated
fraction reduction in idling time that will result in use from the
shutdown feature. Do not apply this factor to the weighted idle power.
Application of this adjustment is subject to our approval. This
paragraph (e) does not apply if the locomotive is (or will be) covered
by a separate certificates for idle control.
    (f) Multi-engine locomotives. This paragraph (f) applies for
locomotives using multiple engines where all engines are identical in
all material respects. In cases where we allow engine dynamometer
testing, you may test a single engine consistent with good engineering
judgment, as long as you test it at the operating points at which the
engines will operate when installed in the locomotive (excluding
stopping and starting). Weigh the results to reflect the power demand/
power-sharing of the in-use configuration for each notch setting.
    (g) Representative test cycles for freshly manufactured
locomotives. As specified in this paragraph (g), manufacturers may be
required to use an alternate test cycle for freshly manufactured Tier 3
and later locomotives.
    (1) If you determine that you are adding design features that will
make the expected average in-use duty cycle for any of your freshly
manufactured locomotive engine families significantly different from
the otherwise applicable test cycle (including weighting factors), you
must notify us and recommend an alternate test cycle that represents
the expected average in-use duty cycle. You should also obtain
preliminary approval before you begin collecting data to support an
alternate test cycle. We will specify whether to use the default duty
cycle, your recommended cycle, or a different cycle, depending on which
cycle we believe best represents expected in-use operation.
    (2) The provisions of this paragraph (g) apply differently for
different types of locomotives, as follows:
    (i) For Tier 4 and later line-haul locomotives, use the cycle
required by (g)(1) of this section to show compliance with the line-
haul cycle standards.
    (ii) For Tier 3 and later switch locomotives, use the cycle
required by (g)(1) of this section to show compliance with the switch
cycle standards.
    (iii) For Tier 3 line-haul locomotives, if we specify an alternate
cycle, use it to show compliance with the line-haul cycle standards. If
you include the locomotives in the ABT program of subpart H of this
part, calculate line-haul cycle credits (positive or negative) using
the alternate cycle and the line-haul cycle standards. Your locomotive
is deemed to also generate an equal amount of switch cycle credits.
    (3) For all locomotives certified using an alternate cycle, include
a description of the cycle in the owners manual such that the
locomotive can be remanufactured using the same cycle.
    (4) For example, if your freshly manufactured line-haul locomotives
are equipped with load control features that

modify how the locomotive will operate when it is in a consist, and
such features will cause the locomotives to operate differently from
the otherwise applicable line-haul cycle, we may require you to certify
using an alternate cycle.
    (5) See paragraph (h) of this section for cycle-changing design
features that also result in energy savings.
    (h) Calculation adjustments for energy-saving design features. The
provisions of this paragraph (h) apply for locomotives equipped with
energy-saving locomotive design features. They do not apply for
features that only improve the engine's brake-specific fuel
consumption.
    (1) Manufacturers/remanufacturers choosing to adjust emissions
under this paragraph (h) must do all of the following for
certification:
    (i) Describe the energy-saving features in your application for
certification.
    (ii) Describe in your installation instruction and/or maintenance
instructions all steps necessary to utilize the energy-saving features.
    (2) If your design feature will also affect the locomotive's duty
cycle, you must comply with the requirements of paragraph (g) of this
section.
    (3) Calculate energy the savings as described in this paragraph
(h)(3).
    (i) Estimate the expected mean in-use fuel consumption rate (on a
BTU per ton-mile basis) with and without the energy saving design
feature, consistent with the specifications of paragraph (h)(4) of this
section. The energy savings is the ratio of fuel consumed from a
locomotive operating with the new feature to fuel consumed from a
locomotive operating without the feature under identical conditions.
Include an estimate of the 80 percent confidence interval for your
estimate of the mean, and other statistical parameters we specify.
    (ii) Your estimate must be based on in-use operating data,
consistent with good engineering judgment. Where we have previously
certified your design feature under this paragraph (h), we may require
you to update your analysis based on all new data that are available.
You must obtain preliminary approval before you begin collecting
operational data for this purpose.
    (iii) We may allow you to consider the effects of your design
feature separately for different route types, regions, or railroads. We
may require that you certify these different locomotives in different
engine families and may restrict their use to the specified
applications.
    (iv) Design your test plan so that the operation of the locomotives
with and without is as similar as possible in all material aspects
(other than the design feature being evaluated). Correct all data for
any relevant differences, consistent with good engineering judgment.
    (v) Do not include any brake-specific energy savings in your
calculated values. If it is not possible to exclude such effects from
your data gathering, you must correct for these effects, consistent
with good engineering judgment.
    (4) Calculate adjustment factors as described in this paragraph
(h)(4). If the energy savings will apply broadly, calculate and apply
the adjustment on a cycle-weighted basis. Otherwise, calculate and
apply the adjustment separately for each notch. To apply the
adjustment, multiply the emissions (either cycle-weighted or notch-
specific, as applicable) by the adjustment. Use the lower bound of the
80 percent confidence interval of the estimate of the mean as your
estimated energy savings rate. We may cap your energy savings rate for
this paragraph (h)(4) at 80 percent of the estimate of the mean.
Calculate the emission adjustment factors as:

AF = 1.000--(energy savings rate)

Sec.  1033.535  Adjusting emission levels to account for infrequently
regenerating aftertreatment devices.

    This section describes how to adjust emission results from
locomotives using aftertreatment technology with infrequent
regeneration events that occur during testing. See paragraph (e) of
this section for how to adjust ramped modal testing. See paragraph (f)
of this section for how to adjust discrete-mode testing. For this
section, ``regeneration'' means an intended event during which emission
levels change while the system restores aftertreatment performance. For
example, hydrocarbon emissions may increase temporarily while oxidizing
accumulated particulate matter in a trap. Also for this section,
``infrequent'' refers to regeneration events that are expected to occur
on average less than once per sample period.
    (a) Developing adjustment factors. Develop an upward adjustment
factor and a downward adjustment factor for each pollutant based on
measured emission data and observed regeneration frequency. Adjustment
factors should generally apply to an entire engine family, but you may
develop separate adjustment factors for different configurations within
an engine family. If you use adjustment factors for certification, you
must identify the frequency factor, F, from paragraph (b) of this
section in your application for certification and use the adjustment
factors in all testing for that engine family. You may use carryover or
carry-across data to establish adjustment factors for an engine family,
as described in Sec.  1033.235, consistent with good engineering
judgment. All adjustment factors for regeneration are additive.
Determine adjustment factors separately for different test segments as
described in paragraphs (e) and (f) of this section. You may use either
of the following different approaches for locomotives that use
aftertreatment with infrequent regeneration events:
    (1) You may disregard this section if you determine that
regeneration does not significantly affect emission levels for an
engine family (or configuration) or if it is not practical to identify
when regeneration occurs. If you do not use adjustment factors under
this section, your locomotives must meet emission standards for all
testing, without regard to regeneration.
    (2) You may ask us to approve an alternate methodology to account
for regeneration events. We will generally limit approval to cases in
which your locomotives use aftertreatment technology with extremely
infrequent regeneration and you are unable to apply the provisions of
this section.
    (b) Calculating average emission factors. Calculate the average
emission factor (EFA) based on the following equation:

EFA = (F)(EFH) + (1-F)(EFL)

Where:

F = the frequency of the regeneration event during normal in-use
operation, expressed in terms of the fraction of equivalent tests
during which the regeneration occurs. You may determine F from in-
use operating data or running replicate tests. For example, if you
observe that the regeneration occurs 125 times during 1000 MW-hrs of
operation, and your locomotive typically accumulates 1 MW-hr per
test, F would be (125) / (1000) x (1) = 0.125.
EFH = measured emissions from a test segment in which the
regeneration occurs.
EFL = measured emissions from a test segment in which the
regeneration does not occur.

    (c) Applying adjustment factors. Apply adjustment factors based on
whether regeneration occurs during the test run. You must be able to
identify regeneration in a way that is readily apparent during all
testing.
    (1) If regeneration does not occur during a test segment, add an
upward adjustment factor to the measured emission rate. Determine the
upward adjustment factor (UAF) using the following equation:

UAF = EFA-EFL

    (2) If regeneration occurs or starts to occur during a test
segment, subtract a downward adjustment factor from the measured
emission rate. Determine the downward adjustment factor (DAF) using the
following equation:

DAF = EFH-EFA

    (d) Sample calculation. If EFL is 0.10 g/bhp-hr, EFH is 0.50 g/
bhp-hr, and F is 0.10 (the regeneration occurs once for each ten
tests), then:

EFA = (0.10)(0.50 g/ bhp-hr) + (1.00-0.10)(0.10 g/ bhp-hr) = 0.14 g/
bhp-hr.
UAF = 0.14 g/ bhp-hr-0.10 g/ bhp-hr = 0.04 g/ bhp-hr.
DAF = 0.50 g/ bhp-hr-0.14 g/ bhp-hr = 0.36 g/ bhp-hr

    (e) Ramped modal testing. Develop separate adjustment factors for
each test phase. If a regeneration has started but has not been
completed when you reach the end of a test phase, use good engineering
judgment to reduce your downward adjustments to be proportional to the
emission impact that occurred in the test phases.
    (f) Discrete-mode testing. Develop separate adjustment factors for
each test mode. If a regeneration has started but has not been
completed when you reach the end of the sampling time for a test mode
extend the sampling period for that mode until the regeneration is
completed.

Subpart G--Special Compliance Provisions

Sec.  1033.601  General compliance provisions.

    Locomotive manufacturer/remanufacturers, as well as owners and
operators of locomotives subject to the requirements of this part, and
all other persons, must observe the provisions of this part, the
requirements and prohibitions in 40 CFR part 1068, and the provisions
of the Clean Air Act. The provisions of 40 CFR part 1068 apply for
locomotives as specified in that part, except as otherwise specified in
this section.
    (a) Meaning of manufacturer. When used in 40 CFR part 1068, the
term ``manufacturer'' means manufacturer and/or remanufacturer.
    (b) Engine rebuilding. The provisions of 40 CFR 1068.120 do not
apply when remanufacturing locomotives under a certificate of
conformity issued under this part.
    (c) Exemptions. (1) The exemption provisions of 40 CFR 1068.240
(i.e., exemptions for replacement engines) do not apply for domestic or
imported locomotives. (Note: You may introduce into commerce freshly
manufactured replacement engines under this part, provided the
locomotives into which they are installed are covered by a certificate
of conformity.
    (2) The exemption provisions of 40 CFR 1068.250 and 1068.255 (i.e.,
exemptions for hardship relief) do not apply for domestic or imported
locomotives. See Sec.  1033.620 for provisions related to hardship
relief.
    (3) The exemption provisions of 40 CFR 1068.260 (i.e., exemptions
for delegated assembly) do not apply for domestic or imported
locomotives, except as specified in Sec.  1033.630.
    (4) The provisions for importing engines and equipment under the
identical configuration exemption of 40 CFR 1068.315(i) do not apply
for locomotives.
    (5) The provisions for importing engines and equipment under the
ancient engine exemption of 40 CFR 1068.315(j) do not apply for
locomotives.
    (d) SEAs, defect reporting, and recall. The provisions of 40 CFR
part 1068, subpart E (i.e., SEA provisions) do not apply for
locomotives. Except as noted in this paragraph (d), the provisions of
40 CFR part 1068, subpart F, apply to certificate holders for
locomotives as specified for manufacturers in that part.
    (1) When there are multiple persons meeting the definition of
manufacturer or remanufacturer, each person meeting the definition of
manufacturer or remanufacturer must comply with the requirements of 40
CFR part 1068, subpart F, as needed so that the certificate holder can
fulfill its obligations under those subparts.
    (2) The defect investigation requirements of 40 CFR 1068.501(a)(5),
(b)(1) and (b)(2) do not apply for locomotives. Instead, use good
engineering judgment to investigate emission-related defects consistent
with normal locomotive industry practice for investigating defects. You
are not required to track parts shipments as indicators of possible
defects.
    (e) Introduction into commerce. The placement of a new locomotive
or new locomotive engine back into service following remanufacturing is
a violation of 40 CFR 1068.101(a)(1), unless it has a valid certificate
of conformity for its model year and the required label.

Sec.  1033.610  Small railroad provisions.

    In general, the provisions of this part apply for all locomotives,
including those owned by Class II and Class III railroads. This section
describes how these provisions apply for railroads meeting the
definition of ``small railroad'' in Sec.  1033.901. (Note: The term
``small railroad'' excludes all Class II railroads and some Class III
railroads, such as those owned by large parent companies.)
    (a) Locomotives become subject to the provisions of this part when
they become ``new'' as defined in Sec.  1033.901. Under that
definition, a locomotive is ``new'' when first assembled, and generally
becomes ``new'' again when remanufactured. As an exception to this
general concept, locomotives that are owned and operated by railroads
meeting the definition of ``small railroad'' in Sec.  1033.901 do not
become ``new'' when remanufactured, unless they were previously
certified to EPA emission standards. Certificate holders may require
written confirmation from the owner/operator that the locomotive
qualifies as a locomotive that is owned and operated by a small
railroad. Such written confirmation to a certificate holder is deemed
to also be a submission to EPA and is thus subject to the reporting
requirements of 40 CFR 1068.101.
    (b) The provisions of subpart I of this part apply to all owners
and operators of locomotives subject to this part 1033. However, the
regulations of that subpart specify some provisions that apply only for
Class I freight railroads, and others that apply differently to Class I
freight railroads and other railroads.
    (c) We may exempt new locomotives that are owned or operated by
small railroads from the prohibition against remanufacturing a
locomotive without a certificate of conformity as specified in this
paragraph (c). This exemption is only available in cases where no
certified remanufacturing system is available for the locomotive. For
example, it is possible that no remanufacturer will certify a system
for very old locomotive models that comprise a tiny fraction of the
fleet and that are remanufactured infrequently. We will grant the
exemption in all cases in which no remanufacturing system has been
certified for the applicable engine family and model year. We may also
grant an exemption where we determine that a certified system is
unavailable. We may consider the issue of excessive costs in
determining the availability of certified systems. If we grant this
exemption for a previously certified locomotive, you are required to
return the locomotive to its previously certified configuration. Send
your request for such exemptions to the Designated Compliance Officer.
    (d) Non-Class I railroads that do not meet the definition of
``small railroad'' in Sec.  1033.901 may ask that their remanufactured
locomotives be excluded from the definition of ``new'' in Sec.
1033.901 in cases where no certified remanufacturing system is
available for

the locomotive. We will grant the exemption in all cases in which no
remanufacturing system has been certified for the applicable engine
family and model year. If we grant this exemption for a previously
certified locomotive, you are required to return the locomotive to its
previously certified configuration. Send your request for such
exemptions to the Designated Compliance Officer.

Sec.  1033.615  Voluntarily subjecting locomotives to the standards of
this part.

    The provisions of this section specify the cases in which an owner
or manufacturer of a locomotive or similar piece of equipment can
subject it to the standards and requirements of this part. Once the
locomotive or equipment becomes subject to the locomotive standards and
requirements of this part, it remains subject to the standards and
requirements of this part for the remainder of its service life.
    (a) Equipment excluded from the definition of ``locomotive''. (1)
Manufacturers/remanufacturers of equipment that is excluded from the
definition of ``locomotive'' because of its total power, but would
otherwise meet the definition of locomotive may ask to have it
considered to be a locomotive. To do this, submit an application for
certification as specified in subpart C of this part, explaining why it
should be considered to be a locomotive. If we approve your request, it
will be deemed to be a locomotive for the remainder of its service
life.
    (2) In unusual circumstances, we may deem other equipment to be
locomotives (at the request of the owner or manufacturer/
remanufacturer) where such equipment does not conform completely to the
definition of locomotive, but is functionally equivalent to a
locomotive.
    (b) Locomotives excluded from the definition of ``new''. Owners of
remanufactured locomotives excluded from the definition of ``new'' in
Sec.  1033.901 under paragraph (2) of that definition may choose to
upgrade their locomotives to subject their locomotives to the standards
and requirements of this part by complying with the specifications of a
certified remanufacturing system, including the labeling specifications
of Sec.  1033.135.

Sec.  1033.620  Hardship provisions for manufacturers and
remanufacturers.

    (a) If you qualify for the economic hardship provisions specified
in 40 CFR 1068.245, we may approve a period of delayed compliance for
up to one model year total.
    (b) The provisions of this paragraph (b) are intended to address
problems that could occur near the date on which more stringent
emission standards become effective, such as the transition from the
Tier 2 standards to the Tier 3 standards for line-haul locomotives on
January 1, 2012.
    (1) In appropriate extreme and unusual circumstances that are
clearly outside the control of the manufacturer and could not have been
avoided by the exercise of prudence, diligence, and due care, we may
permit you, for a brief period, to introduce into commerce locomotives
which do not comply with the applicable emission standards if all of
the following conditions apply:
    (i) You cannot reasonably manufacture the locomotives in such a
manner that they would be able to comply with the applicable standards.
    (ii) The manufacture of the locomotives was substantially completed
prior to the applicability date of the standards from which you seek
the relief. For example, you may not request relief for a locomotive
that has been ordered, but for which you will not begin the assembly
process prior to the applicability date of the standards. On the other
hand, we would generally consider completion of the underframe weldment
to be a substantial part of the manufacturing process.
    (iii) Manufacture of the locomotives was previously scheduled to be
completed at such a point in time that locomotives would have been
included in the previous model year, such that they would have been
subject to less stringent standards, and that such schedule was
feasible under normal conditions.
    (iv) You demonstrate that the locomotives comply with the less
stringent standards that applied to the previous model year's
production described in paragraph (b)(1)(iii) of this section, as
prescribed by subpart C of this part (i.e., that the locomotives are
identical to locomotives certified in the previous model year).
    (v) You exercised prudent planning, were not able to avoid the
violation, and have taken all reasonable steps to minimize the extent
of the nonconformity.
    (vi) We approve your request before you introduce the locomotives
into commerce.
    (2) You must notify us as soon as you become aware of the extreme
or unusual circumstances.
    (3)(i) Include locomotives for which we grant relief under this
section in the engine family for which they were originally intended to
be included.
    (ii) Where the locomotives are to be included in an engine family
that was certified to an FEL above the applicable standard, you must
reserve credits to cover the locomotives covered by this allowance and
include the required information for these locomotives in the end-of-
year report required by subpart H of this part.
    (c) In granting relief under this section, we may also set other
conditions as appropriate, such as requiring payment of fees to negate
an economic gain that such relief would otherwise provide.

Sec.  1033.625  Special certification provisions for non-locomotive-
specific engines.

    You may certify freshly manufactured or remanufactured locomotives
using non-locomotive-specific engines (as defined in (1033.901) using
the normal certification procedures of this part. Locomotives certified
in that way are generally treated the same as other locomotives, except
where specified otherwise. The provisions of this section provide for
design certification to the locomotive standards in this part for
locomotives using engines included in engine families certified under
40 CFR part 1039 (or part 89) in limited circumstances.
    (a) Remanufactured or freshly manufactured switch locomotives
powered by non-locomotive-specific engines may be certified by design
without the test data required by 1033.235 if all of the following are
true:
    (1) Before being installed in the locomotive, the engines were
covered by a certificate of conformity issued under 40 CFR Part 1039
(or part 89) that is effective for the calendar year in which the
manufacture or remanufacture occurs. You may use engines certified
during the previous year if it is subject to the same standards. You
may not make any modifications to the engines unless we approve them.
    (2) The engines were certified to standards that are numerically
lower than the applicable locomotive standards of this part.
    (3) More engines are reasonably projected to be sold and used under
the certificate for non-locomotive use than for use in locomotives.
    (4) The number of such locomotives certified under this section
does not exceed 30 in any three-year period. We may waive this sales
limit for locomotive models that have previously demonstrated
compliance with the locomotive standards of Sec.  1033.101 in-use.
    (5) We approved the application as specified in paragraph (d) of
this section.

    (b) To certify your locomotives by design under this section,
submit your application as specified in Sec.  1033.205, except include
the following instead of the locomotive test data otherwise required:
    (1) A description of the engines to be used, including the name of
the engine manufacturer and engine family identifier for the engines.
    (2) A brief engineering analysis describing how the engine's
emission controls will function when installed in the locomotive
throughout the locomotive's useful life.
    (3) The emission data submitted under 40 CFR part 1039 (or part
89).
    (c) Locomotives certified under this section are subject to all of
the same requirements of this part unless specified otherwise in this
section. The engines used in such locomotives are not considered to be
included in the otherwise applicable engines family of 40 CFR part 1039
(or part 89).
    (d) We will approve or deny the application as specified in subpart
C of this part. For example, we will deny your application for
certification by design under this section in any case where we have
evidence that your locomotives will not conform to the requirements of
this part throughout their useful lives.

Sec.  1033.630  Staged-assembly and delegated assembly exemptions.

    (a) Staged assembly. You may ask us to provide a temporary
exemption to allow you to complete production of your engines and
locomotives at different facilities, as long as you maintain control of
the engines until they are in their certified configuration. We may
require you to take specific steps to ensure that such locomotives are
in their certified configuration before reaching the ultimate
purchaser. You may request an exemption under this paragraph (a) in
your application for certification, or in a separate submission. If you
include your request in your application, your exemption is approved
when we grant your certificate. Note that no exemption is needed to
ship an engine that has been assembled in its certified configuration,
is properly labeled, and will not require an aftertreatment device to
be attached when installed in the locomotive.
    (b) Delegated assembly. This paragraph (b) applies where the engine
manufacturer/remanufacturer does not complete assembly of the
locomotives and the engine is shipped after being manufactured or
remanufactured (partially or completely). The provisions of this
paragraph (b) apply differently depending on who holds the certificate
of conformity and the state of the engine when it is shipped. You may
request an exemption under this paragraph (b) in your application for
certification, or in a separate submission. If you include your request
in your application, your exemption is approved when we grant your
certificate. A manufacturer/remanufacturer may request an exemption
under 40 CFR 1068.260 instead of under this section.
    (1) In cases where an engine has been assembled in its certified
configuration, properly labeled, and will not require an aftertreatment
device to be attached when installed in the locomotive, no exemption is
needed to ship the engine. You do not need an exemption to ship engines
without specific components if they are not emission-related components
identified in Appendix I of 40 CFR part 1068.
    (2) In cases where an engine has been properly labeled by the
certificate holder and assembled in its certified configuration except
that it does not yet have a required aftertreatment device, an
exemption is required to ship the engine. You may ask for this
exemption if you do all of the following:
    (i) You note on the Engine Emission Control Information label that
the locomotive must include the aftertreatment device to be covered by
the certificate.
    (ii) You make clear in your emission-related installation
instructions that installation of the aftertreatment device is required
for the locomotive to be covered by the certificate.
    (3) In cases where an engine will be shipped to the certificate
holder in an uncertified configuration, an exemption is required to
ship the engine. You may ask for this exemption under 40 CFR 1068.262.
    (c) Other exemptions. In unusual circumstances, you may ask us to
provide an exemption for an assembly process that is not covered by the
provisions of paragraphs (a) and (b) of this section. We will make the
exemption conditional based on you complying with requirements that we
determine are necessary to ensure that the locomotives are assembled in
their certified configuration before being placed (back) into service.

Sec.  1033.640  Provisions for repowered and refurbished locomotives.

    (a) The provisions of this section apply for locomotives that are
produced from an existing locomotive so that the new locomotive
contains both previously used parts and parts that have never been used
before.
    (1) Repowered locomotives are used locomotives in which a freshly
manufactured propulsion engine is installed. As described in this
section, a repowered locomotive is deemed to be either remanufactured
or freshly manufactured, depending on the total amount of unused parts
on the locomotive. It may also be deemed to be a refurbished
locomotive.
    (2) Refurbished locomotives are locomotives that contain more
unused parts than previously used parts. As described in this section,
a locomotive containing more unused parts than previously used parts
may be deemed to be either remanufactured or freshly manufactured,
depending on the total amount of unused parts on the locomotive. Note
that Sec.  1033.101 defines refurbishment of a pre-1973 locomotive to
be an upgrade of the locomotive.
    (b) A single existing locomotive cannot be divided into parts and
combined with new parts to create more than one remanufactured
locomotive. However, any number of locomotives can be divided into
parts and combined with new parts to create more than one
remanufactured locomotive, provide the number of locomotives created
(remanufactured and freshly manufactured) does not exceed the number of
locomotives that were disassembled.
    (c) You may determine the relative amount of previously used parts
consistent with the specifications of the Federal Railroad
Administration. Otherwise, determine the relative amount of previously
used parts as follows:
    (1) Identify the parts in the fully assembled locomotive that have
been previously used and those that have never been used before.
    (2) Weight the unused parts and previously used parts by the dollar
value of the parts. For example, a single part valued at $1200 would
count the same as six parts valued at $200 each. Group parts by system
where possible (such as counting the engine as one part) if either all
the parts in that system are used or all the parts in that system are
unused. Calculate the used part values using dollar values from the
same year as the new parts.
    (3) Sum the values of the unused parts. Also sum the values of the
previously used parts. The relative fraction of used parts is the total
value of previously used parts divided by the combined value of the
unused parts and previously used parts.
    (c) If the weighted fraction of the locomotive that is comprised of
previously used parts is greater than or equal to 25 percent, then the
locomotive is considered to be a remanufactured locomotive and retains
its original date

of manufacture. Note, however, that if the weighted fraction of the
locomotive that is comprised of previously used parts is less than 50
percent, then the locomotive is also considered to be a refurbished
locomotive.
    (d) If the weighted fraction of the locomotive that is comprised of
previously used parts is less than 25 percent, then the locomotive is
deemed to be a freshly manufactured locomotive and the date of original
manufacture is the most recent date on which the locomotive was
assembled using less than 25 percent previously used parts. For
example:
    (1) If you produce a new locomotive that includes a used frame, but
all other parts are unused, then the locomotive would likely be
considered to be a freshly manufactured locomotive because the value of
the frame would likely be less than 25 percent of the total value of
the locomotive. Its date of original manufacture would be the date on
which you complete its assembly.
    (2) If you produce a new locomotive by replacing the engine in a
1990 locomotive with a freshly manufactured engine, but all other parts
are used, then the locomotive would likely be considered to be a
remanufactured locomotive and its date of original manufacture is the
date on which assembly was completed in 1990. (Note: such a locomotive
would also be considered to be a repowered locomotive.)
    (e) Locomotives containing used parts that are deemed to be freshly
manufactured locomotives are subject to the same provisions as all
other freshly manufactured locomotives. Other refurbished locomotives
are subject to the same provisions as other remanufactured locomotives,
with the following exceptions:
    (1) Switch locomotives. (i) Prior to January 1, 2015,
remanufactured Tier 0 switch locomotives that are deemed to be
refurbished are subject to the Tier 0 line-haul cycle and switch cycle
standards. Note that this differs from the requirements applicable to
other Tier 0 switch locomotives, which are not subject to the Tier 0
line-haul cycle standards.
    (ii) Beginning January 1, 2015, remanufactured Tier 3 and earlier
switch locomotives that are deemed to be refurbished are subject to the
Tier 3 switch standards.
    (2) Line-haul locomotives. Remanufactured line-haul locomotives
that are deemed to be refurbished are subject to the same standards as
freshly manufactured line-haul locomotives, except that line-haul
locomotives with rated power less than 3000 hp that are refurbished
before January 1, 2015 are subject to the same standards as refurbished
switch locomotives under paragraph (e)(1)(i) of this section. However,
line-haul locomotives less than 3000 hp may not generate emission
credits relative to the standards specified in paragraph (e)(1)(i) of
this section.
    (3) Labels for switch and line-haul locomotives. Remanufacturers
that refurbish a locomotive must add a secondary locomotive label that
includes the following:
    (i) The label heading: ``REFURBISHED LOCOMOTIVE EMISSION CONTROL
INFORMATION.''
    (ii) The statement identifying when the locomotive was refurbished
and what standards it is subject to, as follows: ``THIS LOCOMOTIVE WAS
REFURBISHED IN [year of refurbishment] AND MUST COMPLY WITH THE TIER
[applicable standard level] EACH TIME THAT IT IS REMANUFACTURED, EXCEPT
AS ALLOWED BY 40 CFR 1033.750.''.

Sec.  1033.645  Non-OEM component certification program.

    This section describes a voluntary program that allows you to get
EPA approval of components you manufacture for use during
remanufacturing.
    (a) Applicability. This section applies only for components
replaced during remanufacturing. It does not apply for other components
that are replaced during a locomotive's useful life.
    (1) The following components are eligible for approval under this
section:
    (i) Cylinder liners.
    (ii) Pistons.
    (iii) Piston rings.
    (iv) Heads.
    (v) Fuel injectors.
    (vi) Turbochargers.
    (vii) Aftercoolers and intercoolers.
    (2) Catalysts and electronic controls are not eligible for approval
under this section.
    (3) We may determine that other types of components can be
certified under this section, consistent with good engineering
judgment.
    (b) Approval. To obtain approval, submit your request to the
Designated Compliance Officer.
    (1) Include all of the following in your request:
    (i) A description of the component(s) for which you are requesting
approval.
    (ii) A list of all engine/locomotive models and engine families for
which your component would be used. You may exclude models that are not
subject to our standards or will otherwise not be remanufactured under
a certificate of conformity.
    (iii) A copy of the maintenance instructions for engines using your
component. You may reference the other certificate holder's maintenance
instructions in your instructions. For example, your instructions may
specify to follow the other certificate holder's instructions in
general, but list one or more exceptions to address the specific
maintenance needs of your component.
    (iv) An engineering analysis (including test data in some cases)
demonstrating to us that your component will not cause emissions to
increase. The analysis must address both low-hour and end-of-useful
life emissions. The amount of information required for this analysis is
less than is required to obtain a certificate of conformity under
subpart C of this part and will vary depending on the type of component
being certified.
    (v) The following statement signed by an authorized representative
of your company: We submit this request under 40 CFR 1033.645. All the
information in this report is true and accurate to the best of my
knowledge. I know of the penalties for violating the Clean Air Act and
the regulations. (Authorized Company Representative)
    (2) If we determine that there is reasonable technical basis to
believe that your component is sufficiently equivalent that it will not
increase emissions, we will approve your request and you will be a
certificate holder for your components with respect to actual emissions
performance for all locomotives that use those components (in
accordance with this section).
    (c) Liability. Being a certificate holder under this section means
that if in-use testing indicates that a certified locomotive using one
or more of your approved components does not comply with an applicable
emission standard, we will presume that you and other certificate
holders are liable for the noncompliance. However, we will not hold you
liable in cases where you convince us that your components did not
cause the noncompliance. Conversely, we will not hold other certificate
holders liable for noncompliance caused solely by your components. You
are also subject to the warranty and defect reporting requirements of
this part for your certified components. Other requirements of this
part apply as specified in Sec.  1033.1.
    (d) In-use testing. Locomotives containing your components must be
tested according to the provisions of this paragraph (d).
    (1) Except as specified in paragraph (d)(5) of this section, you
must test at least one locomotive if 250 locomotives

use your component under this section. You must test one additional
locomotive for the next additional 500 locomotives that use your
component under this section. After that, we may require you to test
one additional locomotive for each additional 1000 locomotives that use
your component under this section. These numbers apply across model
years. For example, if your component is used in 125 remanufactures per
year under this section, you must test one of the first 250
locomotives, one of the next 500 locomotives, and up to one every eight
years after that. Do not count locomotives that use your components but
are not covered by this section.
    (2) Except for the first locomotive you test for a specific
component under this section, locomotives tested under this paragraph
(d) must be past the half-way point of the useful life in terms of MW-
hrs. For the first locomotive you test, select a locomotive that has
operated between 25 and 50 percent of its useful life.
    (3) Unless we approve a different schedule, you must complete
testing and report the results to us within 180 days of the earliest
point at which you could complete the testing based on the hours of
operation accumulated by the locomotives. For example, if 250 or more
locomotives use your part under this section, and the first of these to
reach 25 percent of its useful life does so on March 1st of a given
year, you must complete testing of one of the first 250 locomotives and
report to us by August 28th of that year.
    (4) Unless we approve different test procedures, you must test the
locomotive according to the procedures specified in subpart F of this
part.
    (5) If any locomotives fail to meet all standards, we may require
you to test one additional locomotive for each locomotive that fails.
You may choose to accept that your part is causing an emission problem
rather than continuing testing. You may also test additional
locomotives at any time. We will consider failure rates, average
emission levels and the existence of any defects among other factors in
determining whether to pursue remedial action. We may order a recall
pursuant to 40 CFR part 1068 before you complete testing additional
locomotives.
    (6) You may ask us to allow you to rely on testing performed by
others instead of requiring you to perform testing. For example, if a
railroad tests a locomotive with your component as part of its testing
under Sec.  1033.810, you may ask to submit those test data as
fulfillment of your test obligations under this paragraph (d). If a
given test locomotive uses different components certified under this
section that were manufactured by different manufacturers (such as
rings from one manufacturer and cylinder liners from another
manufacturer), a single test of it may be counted towards both
manufacturers' test obligations. In unusual circumstances, you may also
ask us to grant you hardship relief from the testing requirements of
this paragraph (d). In determining whether to grant you relief, we will
consider all relevant factors including the extent of the financial
hardship to your company and whether the test data are available from
other sources, such as testing performed by a railroad.
    (e) Components certified under this section may be used when
remanufacturing Category 2 engines under 40 CFR part 1042.

Sec.  1033.650  Incidental use exemption for Canadian and Mexican
locomotives.

    You may ask us to exempt from the requirements and prohibitions of
this part locomotives that are operated primarily outside of the United
States and that enter the United States temporarily from Canada or
Mexico. We will approve this exemption only where we determine that the
locomotive's operation within the United States will not be extensive
and will be incidental to its primary operation. For example, we would
generally exempt locomotives that will not operate more than 25 miles
from the border and will operate in the United States less than 5
percent of their operating time. For existing operations, you must
request this exemption before January 1, 2011. In your request,
identify the locomotives for which you are requesting an exemption, and
describe their projected use in the United States. We may grant the
exemption broadly or limit the exemption to specific locomotives and/or
specific geographic areas. However, we will typically approve
exemptions for specific rail facilities rather than specific
locomotives. In unusual circumstances, such as cases in which new rail
facilities are created, we may approve requests submitted after January
1, 2011.

Sec.  1033.655  Special provisions for certain Tier 0/Tier 1
locomotives.

    (a) The provisions of this section apply only for the following
locomotives (and locomotives in the same engine families as these
locomotives):
    (1) Locomotives listed in Table 1 of this section originally
manufactured 1986-1994 by General Electric Company that have never been
equipped with separate loop aftercooling. The section also applies for
the equivalent passenger locomotives.

                       Table 1 to Sec.   1033.655
------------------------------------------------------------------------

------------------------------------------------------------------------
8-40C.....................................  P32ACDM
8-40B.....................................  P42DC
8-32B.....................................  8-40BPH
8-40CW....................................  P40DC
8-40BW....................................  8-32BWH
8-40CM....................................  C39-8
8-41CW....................................  B39-8E
8-44CW                                      ............................
------------------------------------------------------------------------

    (2) SD70MAC and SD70IAC locomotives originally manufactured 1996-
2000 by EMD.
    (b) Any certifying remanufacturer may request relief for the
locomotives covered by this section.
    (c) You may ask us to allow these locomotives to exceed otherwise
applicable line-haul cycle NOX standard for high ambient
temperatures and/or altitude because of limitations of the cooling
system. However, the NOX emissions may exceed the otherwise
applicable standard only to the extent necessary. Relief is limited to
the following conditions:
    (1) For General Electric locomotives, you may ask for relief for
ambient temperatures above 23 [deg]C and/or barometric pressure below
97.5 kPa (28.8 in. Hg). NOX emissions may not exceed 9.5 g/
bhp-hr over the line-haul cycle for any temperatures up to 105 [deg]F
and any altitude up to 7000 feet above sea level.
    (2) For EMD locomotives, you may ask for relief for ambient
temperatures above 30 [deg]C and/or barometric pressure below 97.5 kPa
(28.8 in. Hg). NOX emissions may not exceed 8.0 g/bhp-hr
over the line-haul cycle for any temperatures up to 105 [deg]F and any
altitude up to 7000 feet above sea level.
    (d) All other standards and requirements in this part apply as
specified.
    (e) To request this relief, submit to the Designated Compliance
Officer along with your application for certification an engineering
analysis showing how your emission controls operate for the following
conditions:
    (1) Temperatures 23-40 [deg]C at any altitude up to 7000 feet above
sea level.
    (2) Altitudes 1000-7000 feet above sea level for any temperature
from 15-40 [deg]C.

Subpart H--Averaging, Banking, and Trading for Certification

Sec.  1033.701  General provisions.

    (a) You may average, bank, and trade (ABT) emission credits for
purposes of certification as described in this subpart to show
compliance with the standards

of this part. Participation in this program is voluntary.
    (b) Section 1033.740 restricts the use of emission credits to
certain averaging sets.
    (c) The definitions of Subpart J of this part apply to this
subpart. The following definitions also apply:
    (1) Actual emission credits means emission credits you have
generated that we have verified by reviewing your final report.
    (2) Applicable emission standard means an emission standard that is
specified in subpart B of this part. Note that for other subparts,
``applicable emission standard'' is defined to also include FELs.
    (3) Averaging set means a set of locomotives in which emission
credits may be exchanged only with other locomotives in the same
averaging set.
    (4) Broker means any entity that facilitates a trade of emission
credits between a buyer and seller.
    (5) Buyer means the entity that receives emission credits as a
result of a trade.
    (6) Reserved emission credits means emission credits you have
generated that we have not yet verified by reviewing your final report.
    (7) Seller means the entity that provides emission credits during a
trade.
    (8) Trade means to exchange emission credits, either as a buyer or
seller.
    (9) Transfer means to convey control of credits generated for an
individual locomotive to the purchaser, owner, or operator of the
locomotive at the time of manufacture or remanufacture; or to convey
control of previously generated credits from the purchaser, owner, or
operator of an individual locomotive to the manufacturer/remanufacturer
at the time of manufacture/remanufacture.
    (d) You may not use emission credits generated under this subpart
to offset any emissions that exceed an FEL or standard. This applies
for all testing, including certification testing, in-use testing,
selective enforcement audits, and other production-line testing.
However, if emissions from a locomotive exceed an FEL or standard (for
example, during a selective enforcement audit), you may use emission
credits to recertify the engine family with a higher FEL that applies
only to future production.
    (e) Engine families that use emission credits for one or more
pollutants may not generate positive emission credits for another
pollutant.
    (f) Emission credits may be used in the model year they are
generated or in future model years. Emission credits may not be used
for past model years.
    (g) You may increase or decrease an FEL during the model year by
amending your application for certification under Sec.  1033.225. The
new FEL may apply only to locomotives you have not already introduced
into commerce. Each locomotive's emission control information label
must include the applicable FELs. You must conduct production line
testing to verify that the emission levels are achieved.
    (h) Credits may be generated by any certifying manufacturer/
remanufacturer and may be held by any of the following entities:
    (1) Locomotive or engine manufacturers.
    (2) Locomotive or engine remanufacturers.
    (3) Locomotive owners.
    (4) Locomotive operators.
    (5) Other entities after notification to EPA.
    (i) All locomotives that are certified to an FEL that is different
from the emission standard that would otherwise apply to the
locomotives are required to comply with that FEL for the remainder of
their service lives, except as allowed by Sec.  1033.750.
    (1) Manufacturers must notify the purchaser of any locomotive that
is certified to an FEL that is different from the emission standard
that would otherwise apply that the locomotive is required to comply
with that FEL for the remainder of its service life.
    (2) Remanufacturers must notify the owner of any locomotive or
locomotive engine that is certified to an FEL that is different from
the emission standard that would otherwise apply that the locomotive
(or the locomotive in which the engine is used) is required to comply
with that FEL for the remainder of its service life.
    (j) The FEL to which the locomotive is certified must be included
on the locomotive label required in Sec.  1033.135. This label must
include the notification specified in paragraph (i) of this section.

Sec.  1033.705  Calculating emission credits.

    The provisions of this section apply separately for calculating
emission credits for NOX or PM.
    (a) Calculate positive emission credits for an engine family that
has an FEL below the otherwise applicable emission standard. Calculate
negative emission credits for an engine family that has an FEL above
the otherwise applicable emission standard. Do not round until the end
of year report.
    (b) For each participating engine family, calculate positive or
negative emission credits relative to the otherwise applicable emission
standard. For the end of year report, round calculated emission credits
to the nearest one hundredth of a megagram (0.01 Mg). Round your end of
year emission credit balance to the nearest megagram (Mg). Use
consistent units throughout the calculation. When useful life is
expressed in terms of megawatt-hrs, calculate credits for each engine
family from the following equation:

Emission credits = (Std-FEL) x (1.341) x (UL) x (Production) x
(Fp) x (10-3 kW-Mg/MW-g).

Where:

Std = the applicable NOX or PM emission standard in g/
bhp-hr (except that Std = previous FEL in g/bhp-hr for locomotives
that were certified under this part to an FEL other than the
standard during the previous useful life).
FEL = the family emission limit for the engine family in g/bhp-hr.
UL = the sales-weighted average useful life in megawatt-hours (or
the subset of the engine family for which credits are being
calculated), as specified in the application for certification.
Production = the number of locomotives participating in the
averaging, banking, and trading program within the given engine
family during the calendar year (or the number of locomotives in the
subset of the engine family for which credits are being calculated).
Quarterly production projections are used for initial certification.
Actual applicable production/sales volumes are used for end-of-year
compliance determination.
Fp = the proration factor as determined in paragraph (d)
of this section.

    (c) When useful life is expressed in terms of miles, calculate the
useful life in terms of megawatt-hours (UL) by dividing the useful life
in miles by 100,000, and multiplying by the sales-weighted average
rated power of the engine family. For example, if your useful life is
800,000 miles for a family with an average rated power of 3,500 hp,
then your equivalent MW-hr useful life would be 28,000 MW-hrs. Credits
are calculated using this UL value in the equations of paragraph (b) of
this section.
    (d) The proration factor is an estimate of the fraction of a
locomotive's service life that remains as a function of age. The
proration factor is 1.00 for freshly manufactured locomotives.
    (1) The locomotive's age is the length of time in years from the
date of original manufacture to the date at which the remanufacture
(for which credits are being calculated) is completed, rounded to the
next higher year.
    (2) The proration factors for line-haul locomotives ages 1 through
20 are specified in Table 1 to this section. For line-haul locomotives
more than 20 years old, use the proration factor for 20 year old
locomotives. The proration

factors for switch locomotives ages 1 through 40 are specified in Table
2 to this section. For switch locomotives more than 40 years old, use
the proration factor for 40 year old locomotives.
    (3) For repower engines, the proration factor is based on the age
of the locomotive chassis, not the age of the engine, except for
remanufactured locomotives that qualify as refurbished. The minimum
proration factor for remanufactured locomotives that meet the
definition of refurbished but not freshly manufactured is 0.60. (Note:
The proration factor is 1.00 for all locomotives that meet the
definition of freshly manufactured.)

Table 1 to Sec.   1033.705.--Proration Factors for Line-Haul Locomotives
------------------------------------------------------------------------
                                                             Proration
                 Locomotive age (years)                     factor (Fp)
------------------------------------------------------------------------
1.......................................................            0.96
2.......................................................            0.92
3.......................................................            0.88
4.......................................................            0.84
5.......................................................            0.81
6.......................................................            0.77
7.......................................................            0.73
8.......................................................            0.69
9.......................................................            0.65
10......................................................            0.61
11......................................................            0.57
12......................................................            0.54
13......................................................            0.50
14......................................................            0.47
15......................................................            0.43
16......................................................            0.40
17......................................................            0.36
18......................................................            0.33
19......................................................            0.30
20......................................................            0.27
------------------------------------------------------------------------

  Table 2 to Sec.   1033.705.--Proration Factors for Switch Locomotives
------------------------------------------------------------------------
                                                             Proration
                 Locomotive age (years)                     factor (Fp)
------------------------------------------------------------------------
1.......................................................            0.98
2.......................................................            0.96
3.......................................................            0.94
4.......................................................            0.92
5.......................................................            0.90
6.......................................................            0.88
7.......................................................            0.86
8.......................................................            0.84
9.......................................................            0.82
10......................................................            0.80
11......................................................            0.78
12......................................................            0.76
13......................................................            0.74
14......................................................            0.72
15......................................................            0.70
16......................................................            0.68
17......................................................            0.66
18......................................................            0.64
19......................................................            0.62
20......................................................            0.60
21......................................................            0.58
22......................................................            0.56
23......................................................            0.54
24......................................................            0.52
25......................................................            0.50
26......................................................            0.48
27......................................................            0.46
28......................................................            0.44
29......................................................            0.42
30......................................................            0.40
31......................................................            0.38
32......................................................            0.36
33......................................................            0.34
34......................................................            0.32
35......................................................            0.30
36......................................................            0.28
37......................................................            0.26
38......................................................            0.24
39......................................................            0.22
40......................................................            0.20
------------------------------------------------------------------------

    (e) In your application for certification, base your showing of
compliance on projected production volumes for locomotives that will be
placed into service in the United States. As described in Sec.
1033.730, compliance with the requirements of this subpart is
determined at the end of the model year based on actual production
volumes for locomotives that will be placed into service in the United
States. Do not include any of the following locomotives to calculate
emission credits:
    (1) Locomotives permanently exempted under subpart G of this part
or under 40 CFR part 1068.
    (2) Exported locomotives. You may ask to include locomotives sold
to Mexican or Canadian railroads if they will likely operate within the
United States and you include all such locomotives (both credit using
and credit generating locomotives).
    (3) Locomotives not subject to the requirements of this part, such
as those excluded under Sec.  1033.5.
    (4) Any other locomotives, where we indicate elsewhere in this part
1033 that they are not to be included in the calculations of this
subpart.

Sec.  1033.710  Averaging emission credits.

    (a) Averaging is the exchange of emission credits among your engine
families. You may average emission credits only as allowed by Sec.
1033.740.
    (b) You may certify one or more engine families to an FEL above the
applicable emission standard, subject to the FEL caps and other
provisions in subpart B of this part, if you show in your application
for certification that your projected balance of all emission-credit
transactions in that model year is greater than or equal to zero.
    (c) If you certify an engine family to an FEL that exceeds the
otherwise applicable emission standard, you must obtain enough emission
credits to offset the engine family's deficit by the due date for the
final report required in Sec.  1033.730. The emission credits used to
address the deficit may come from your other engine families that
generate emission credits in the same model year, from emission credits
you have banked, or from emission credits you obtain through trading or
by transfer.

Sec.  1033.715  Banking emission credits.

    (a) Banking is the retention of emission credits by the
manufacturer/remanufacturer generating the emission credits (or owner/
operator, in the case of transferred credits) for use in averaging,
trading, or transferring in future model years. You may use banked
emission credits only as allowed by Sec.  1033.740.
    (b) You may use banked emission credits from the previous model
year for averaging, trading, or transferring before we verify them, but
we may revoke these emission credits if we are unable to verify them
after reviewing your reports or auditing your records.
    (c) Reserved credits become actual emission credits only when we
verify them after reviewing your final report.

Sec.  1033.720  Trading emission credits.

    (a) Trading is the exchange of emission credits between certificate
holders. You may use traded emission credits for averaging, banking, or
further trading transactions. Traded emission credits may be used only
as allowed by Sec.  1033.740.
    (b) You may trade actual emission credits as described in this
subpart. You may also trade reserved emission credits, but we may
revoke these emission credits based on our review of your records or
reports or those of the company with which you traded emission credits.
    (c) If a negative emission credit balance results from a
transaction, both the buyer and seller are liable, except in cases we
deem to involve fraud. See Sec.  1033.255(e) for cases involving fraud.
We may void the certificates of all engine families participating in a
trade that results in a manufacturer/remanufacturer having a negative
balance of emission credits. See Sec.  1033.745.

Sec.  1033.722  Transferring emission credits.

    (a) Credit transfer is the conveying of control over credits,
either:
    (1) From a certifying manufacturer/remanufacturer to an owner/
operator.

    (2) From an owner/operator to a certifying manufacturer/
remanufacturer.
    (b) Transferred credits can be:
    (1) Used by a certifying manufacturer/remanufacturer in averaging.
    (2) Transferred again within the model year.
    (3) Reserved for later banking. Transferred credits may not be
traded unless they have been previously banked.
    (c) Owners/operators participating in credit transfers must submit
the reports specified in Sec.  1033.730.

Sec.  1033.725  Requirements for your application for certification.

    (a) You must declare in your application for certification your
intent to use the provisions of this subpart for each engine family
that will be certified using the ABT program. You must also declare the
FELs you select for the engine family for each pollutant for which you
are using the ABT program. Your FELs must comply with the
specifications of subpart B of this part, including the FEL caps. FELs
must be expressed to the same number of decimal places as the
applicable emission standards.
    (b) Include the following in your application for certification:
    (1) A statement that, to the best of your belief, you will not have
a negative balance of emission credits for any averaging set when all
emission credits are calculated at the end of the year.
    (2) Detailed calculations of projected emission credits (positive
or negative) based on projected production volumes.

Sec.  1033.730  ABT reports.

    (a) If any of your engine families are certified using the ABT
provisions of this subpart, you must send an end-of-year report within
90 days after the end of the model year and a final report within 270
days after the end of the model year. We may waive the requirement to
send the end-of year report, as long as you send the final report on
time.
    (b) Your end-of-year and final reports must include the following
information for each engine family participating in the ABT program:
    (1) Engine family designation.
    (2) The emission standards that would otherwise apply to the engine
family.
    (3) The FEL for each pollutant. If you changed an FEL during the
model year, identify each FEL you used and calculate the positive or
negative emission credits under each FEL. Also, describe how the
applicable FEL can be identified for each locomotive you produced. For
example, you might keep a list of locomotive identification numbers
that correspond with certain FEL values.
    (4) The projected and actual production volumes for the model year
that will be placed into service in the United States as described in
Sec.  1033.705. If you changed an FEL during the model year, identify
the actual production volume associated with each FEL.
    (5) Rated power for each locomotive configuration, and the sales-
weighted average locomotive power for the engine family.
    (6) Useful life.
    (7) Calculated positive or negative emission credits for the whole
engine family. Identify any emission credits that you traded or
transferred, as described in paragraph (d)(1) or (e) of this section.
    (c) Your end-of-year and final reports must include the following
additional information:
    (1) Show that your net balance of emission credits from all your
engine families in each averaging set in the applicable model year is
not negative.
    (2) State whether you will retain any emission credits for banking.
    (3) State that the report's contents are accurate.
    (d) If you trade emission credits, you must send us a report within
90 days after the transaction, as follows:
    (1) As the seller, you must include the following information in
your report:
    (i) The corporate names of the buyer and any brokers.
    (ii) A copy of any contracts related to the trade.
    (iii) The engine families that generated emission credits for the
trade, including the number of emission credits from each family.
    (2) As the buyer, you must include the following information in
your report:
    (i) The corporate names of the seller and any brokers.
    (ii) A copy of any contracts related to the trade.
    (iii) How you intend to use the emission credits, including the
number of emission credits you intend to apply to each engine family
(if known).
    (e) If you transfer emission credits, you must send us a report
within 90 days after the first transfer to an owner/operator, as
follows:
    (1) Include the following information:
    (i) The corporate names of the owner/operator receiving the
credits.
    (ii) A copy of any contracts related to the trade.
    (iii) The serial numbers and engine families for the locomotive
that generated the transferred emission credits and the number of
emission credits from each family.
    (2) The requirements of this paragraph (e) apply separately for
each owner/operator.
    (3) We may require you to submit additional 90-day reports under
this paragraph (e).
    (f) Send your reports electronically to the Designated Compliance
Officer using an approved information format. If you want to use a
different format, send us a written request with justification for a
waiver.
    (g) Correct errors in your end-of-year report or final report as
follows:
    (1) You may correct any errors in your end-of-year report when you
prepare the final report, as long as you send us the final report by
the time it is due.
    (2) If you or we determine within 270 days after the end of the
model year that errors mistakenly decreased your balance of emission
credits, you may correct the errors and recalculate the balance of
emission credits. You may not make these corrections for errors that
are determined more than 270 days after the end of the model year. If
you report a negative balance of emission credits, we may disallow
corrections under this paragraph (g)(2).
    (3) If you or we determine anytime that errors mistakenly increased
your balance of emission credits, you must correct the errors and
recalculate the balance of emission credits.
    (h) We may modify these requirements for owners/operators required
to submit reports because of their involvement in credit transferring.

Sec.  1033.735  Required records.

    (a) You must organize and maintain your records as described in
this section. We may review your records at any time.
    (b) Keep the records required by this section for eight years after
the due date for the end-of-year report. You may not use emission
credits on any engines if you do not keep all the records required
under this section. You must therefore keep these records to continue
to bank valid credits. Store these records in any format and on any
media, as long as you can promptly send us organized, written records
in English if we ask for them. You must keep these records readily
available. We may review them at any time.
    (c) Keep a copy of the reports we require in Sec.  1033.730.
    (d) Keep the following additional records for each locomotive you
produce that generates or uses emission credits under the ABT program:
    (1) Engine family designation.
    (2) Locomotive identification number. You may identify these
numbers as a range.

    (3) FEL. If you change the FEL after the start of production,
identify the date that you started using the new FEL and give the
engine identification number for the first engine covered by the new
FEL.
    (4) Rated power and useful life.
    (5) Purchaser and destination for freshly manufactured locomotives;
or owner for remanufactured locomotives.
    (e) We may require you to keep additional records or to send us
relevant information not required by this section, as allowed under the
Clean Air Act.

Sec.  1033.740  Credit restrictions.

    Use of emission credits generated under this part 1033 or 40 CFR
part 92 is restricted depending on the standards against which they
were generated.
    (a) Credits from 40 CFR part 92. NOX and PM credits
generated under 40 CFR part 92 may be used under this part in the same
manner as NOX and PM credits generated under this part.
    (b) General cycle restriction. Locomotives subject to both switch
cycle standards and line-haul cycle standards (such as Tier 2
locomotives) may generate both switch and line-haul credits. Except as
specified in paragraph (c) of this section, such credits may only be
used to show compliance with standards for the same cycle for which
they were generated. For example, a Tier 2 locomotive that is certified
to a switch cycle NOX FEL below the applicable switch cycle
standard and a line-haul cycle NOX FEL below the applicable
line-haul cycle standard may generate switch cycle NOX
credits for use in complying with switch cycle NOX standards
and a line-haul cycle NOX credits for use in complying with
line-haul cycle NOX standards.
    (c) Single cycle locomotives. As specified in Sec.  1033.101, Tier
0 switch locomotives, Tier 3 and later switch locomotives, and Tier 4
and later line-haul locomotives are not subject to both switch cycle
and line-haul cycle standards.
    (1) When using credits generated by locomotives covered by
paragraph (b) of this section for single cycle locomotives covered by
this paragraph (c), you must use both switch and line-haul credits as
described in this paragraph (c)(1).
    (i) For locomotives subject only to switch cycle standards,
calculate the negative switch credits for the credit using locomotive
as specified in Sec.  1033.705. Such locomotives also generate an equal
number of negative line-haul cycle credits (in Mg).
    (ii) For locomotives subject only to line-haul cycle standards,
calculate the negative line-haul credits for the credit using
locomotive as specified in Sec.  1033.705. Such locomotives also
generate an equal number of negative switch cycle credits (in Mg).
    (2) Credits generated by Tier 0, Tier 3, or Tier 4 switch
locomotives may be used to show compliance with any switch cycle or
line-haul cycle standards.
    (3) Credits generated by any line-haul locomotives may not be used
by Tier 3 or later switch locomotives.
    (d) Tier 4 credit use. The number of Tier 4 locomotives that can be
certified using credits in any year may not exceed 50 percent of the
total number of Tier 4 locomotives you produce in that year for U.S.
sales.
    (e) Other restrictions. Other sections of this part may specify
additional restrictions for using emission credits under certain
special provisions.

Sec.  1033.745  Compliance with the provisions of this subpart.

    The provisions of this section apply to certificate holders.
    (a) For each engine family participating in the ABT program, the
certificate of conformity is conditional upon full compliance with the
provisions of this subpart during and after the model year. You are
responsible to establish to our satisfaction that you fully comply with
applicable requirements. We may void the certificate of conformity for
an engine family if you fail to comply with any provisions of this
subpart.
    (b) You may certify your engine family to an FEL above an
applicable emission standard based on a projection that you will have
enough emission credits to offset the deficit for the engine family.
However, we may void the certificate of conformity if you cannot show
in your final report that you have enough actual emission credits to
offset a deficit for any pollutant in an engine family.
    (c) We may void the certificate of conformity for an engine family
if you fail to keep records, send reports, or give us information we
request.
    (d) You may ask for a hearing if we void your certificate under
this section (see Sec.  1033.920).

Sec.  1033.750  Changing a locomotive's FEL at remanufacture.

    Locomotives are generally required to be certified to the
previously applicable emission standard or FEL when remanufactured.
This section describes provisions that allow a remanufactured
locomotive to be certified to a different FEL (higher or lower).
    (a) A remanufacturer may choose to certify a remanufacturing system
to change the FEL of a locomotive from a previously applicable FEL or
standard. Any locomotives remanufactured using that system are required
to comply with the revised FEL for the remainder of their service
lives, unless it is changed again under this section during a later
remanufacture. Remanufacturers changing an FEL must notify the owner of
the locomotive that it is required to comply with that FEL for the
remainder of its service life.
    (b) Calculate the credits needed or generated as specified in Sec.
1033.705, except as specified in this paragraph. If the locomotive was
previously certified to an FEL for the pollutant, use the previously
applicable FEL as the standard.

Subpart I--Requirements for Owners and Operators

Sec.  1033.801  Applicability.

    The requirements of this subpart are applicable to railroads and
all other owners and operators of locomotives subject to the provisions
of this part, except as otherwise specified. The prohibitions related
to maintenance in Sec.  1033.815 also applies to anyone performing
maintenance on a locomotive subject to the provisions of this part.

Sec.  1033.805  Remanufacturing requirements.

    (a) See the definition of ``remanufacture'' in Sec.  1033.901 to
determine if you are remanufacturing your locomotive or engine. (Note:
Replacing power assemblies one at a time may qualify as
remanufacturing, depending on the interval between replacement.)
    (b) See the definition of ``new'' in Sec.  1033.901 to determine if
remanufacturing your locomotive makes it subject to the requirements of
this part. If the locomotive is considered to be new, it is subject to
the certification requirements of this part, unless it is exempt under
subpart G of this part. The standards to which your locomotive is
subject will depend on factors such as the following:
    (1) Its date of original manufacture.
    (2) The FEL to which it was previously certified, which is listed
on the ``Locomotive Emission Control Information'' label.
    (3) Its power rating (whether it is above or below 2300 hp).
    (4) The calendar year in which it is being remanufactured.
    (c) You may comply with the certification requirements of this part
for your remanufactured locomotive by either obtaining your own
certificate of conformity as specified in subpart C of

this part or by having a certifying remanufacturer include your
locomotive under its certificate of conformity. In either case, your
remanufactured locomotive must be covered by a certificate before it is
reintroduced into service.
    (d) If you do not obtain your own certificate of conformity from
EPA, contact a certifying remanufacturer to have your locomotive
included under its certificate of conformity. Confirm with the
certificate holder that your locomotive's model, date of original
manufacture, previous FEL, and power rating allow it to be covered by
the certificate. You must do all of the following:
    (1) Comply with the certificate holder's emission-related
installation instructions, which should include the following:
    (i) A description of how to assemble and adjust the locomotive so
that it will operate according to design specifications in the
certificate. See paragraph (e) of this section for requirements related
to the parts you must use.
    (ii) Instructions to remove the Engine Emission Control Information
label and replace it with the certificate holder's new label. Note: In
most cases, you must not remove the Locomotive Emission Control
Information label.
    (2) Provide to the certificate holder the information it identifies
as necessary to comply with the requirements of this part. For example,
the certificate holder may require you to provide the information
specified by Sec.  1033.735.
    (e) For parts unrelated to emissions and emission-related parts not
addressed by the certificate holder in the emission-related
installation instructions, you may use parts from any source. For
emission-related parts listed by the certificate holder in the
emission-related installation instructions, you must either use the
specified parts or parts certified under Sec.  1033.645 for
remanufacturing. If you believe that the certificate holder has
included as emission-related parts, parts that are actually unrelated
to emissions, you may ask us to exclude such parts from the emission-
related installation instructions. Note: This paragraph (e) does not
apply with respect to parts for maintenance other than remanufacturing;
see Sec.  1033.815 for provisions related to general maintenance.
    (f) Failure to comply with this section is a violation of 40 CFR
1068.101(a)(1).

Sec.  1033.810  In-use testing program.

    (a) Applicability. This section applies to all Class I freight
railroads. It does not apply to other owner/operators.
    (b) Testing requirements. Annually test a sample of locomotives in
your fleet. For purposes of this section, your fleet includes both the
locomotives that you own and the locomotives that you are leasing. Use
the test procedures in subpart F of this part, unless we approve
different procedures.
    (1) Except for the cases described in paragraph (b)(2) of this
section, test at least 0.075 percent of the average number of
locomotives in your fleet during the previous calendar year (i.e.,
determine the number to be tested by multiplying the number of
locomotives in the fleet by 0.00075 and rounding up to the next whole
number).
    (2) We may allow you to test a smaller number of locomotives if we
determine that the number of tests otherwise required by this section
is not necessary.
    (c) Test locomotive selection. Unless we specify a different
option, select test locomotives as specified in paragraph (c)(1) of
this section (Option 1). In no case may you exclude locomotives because
of visible smoke, a history of durability problems, or other evidence
of malmaintenance. You may test more locomotives than is required by
this section.
    (1) Option 1. To the extent possible, select locomotives from each
manufacturer and remanufacturer, and from each tier level (e.g., Tier
0, Tier 1 and Tier 2) in proportion to their numbers in the your fleet.
Exclude locomotives tested during the previous year. If possible,
select locomotives that have been operated for at least 100 percent of
their useful lives. Where there are multiple locomotives meeting the
requirements of this paragraph (c)(1), randomly select the locomotives
to be tested from among those locomotives. If the number of certified
locomotives that have been operated for at least 100 percent of their
useful lives is not large enough to fulfill the testing requirement,
test locomotives still within their useful lives as follows:
    (i) Test locomotives in your fleet that are nearest to the end of
their useful lives. You may identify such locomotives as a range of
values representing the fraction of the useful life already used up for
the locomotives.
    (ii) For example, you may determine that 20 percent of your fleet
has been operated for at least 75 percent of their useful lives. In
such a case, select locomotives for testing that have been operated for
at least 75 percent of their useful lives.
    (2) Option 2. If you hold a certificate for some of your
locomotives, you may ask us to allow you to select up to two
locomotives as specified in subpart E of this part, and count those
locomotives toward both your testing obligations of that subpart and
this section.
    (3) Option 3. You may ask us to allow you to test locomotives that
use parts covered under Sec.  1033.645. If we do, it does not change
the number of locomotives that you must test.
    (4) Option 4. We may require that you test specific locomotives,
including locomotives that do not meet the criteria specified in any of
the options in this section. If we do, we will specify which
locomotives to test by January 1 of the calendar year for which testing
is required.
    (d) Reporting requirements. Report all testing done in compliance
with the provisions of this section to us within 45 calendar days after
the end of each calendar year. At a minimum, include the following:
    (1) Your full corporate name and address.
    (2) For each locomotive tested, all the following:
    (i) Corporate name of the manufacturer and last remanufacturer(s)
of the locomotive (including both certificate holder and installer,
where different), and the corporate name of the manufacturer or last
remanufacturer(s) of the engine if different than that of the
manufacturer/remanufacturer(s) of the locomotive.
    (ii) Year (and month if known) of original manufacture of the
locomotive and the engine, and the manufacturer's model designation of
the locomotive and manufacturer's model designation of the engine, and
the locomotive identification number.
    (iii) Year (and month if known) that the engine last underwent
remanufacture, the engine remanufacturer's designation that reflects
(or most closely reflects) the engine after the last remanufacture, and
the engine family identification.
    (iv) The number of MW-hrs and miles (where available) the
locomotive has been operated since its last remanufacture.
    (v) The emission test results for all measured pollutants.
    (e) You do not have to submit a report for any year in which you
performed no emission testing under this section.
    (f) You may ask us to allow you to submit equivalent emission data
collected for other purposes instead of some or all of the test data
required by this section. If we allow it in advance, you may report
emission data collected using other testing or sampling

procedures instead of some or all of the data specified by this
section.
    (g) Submit all reports to the Designated Compliance Officer.
    (h) Failure to comply fully with this section is a violation of 40
CFR 1068.101(a)(2).

Sec.  1033.815  Maintenance, operation, and repair.

    All persons who own, operate, or maintain locomotives are subject
to this section, except where we specify that a requirement applies to
the owner.
    (a) Unless we allow otherwise, all owners of locomotives subject to
the provisions of this part must ensure that all emission-related
maintenance is performed on the locomotives, as specified in the
maintenance instructions provided by the certifying manufacturer/
remanufacturer in compliance with Sec.  1033.125 (or maintenance that
is equivalent to the maintenance specified by the certifying
manufacturer/remanufacturer in terms of maintaining emissions
performance).
    (b) Perform unscheduled maintenance in a timely manner. This
includes malfunctions identified through the locomotive's emission
control diagnostics system and malfunctions discovered in components of
the diagnostics system itself. For most repairs, this paragraph (b)
requires that the maintenance be performed no later than the
locomotive's next periodic (92-day) inspection. See paragraph (e) of
this section, for reductant replenishment requirements in a locomotive
equipped with an SCR system.
    (c) Use good engineering judgment when performing maintenance of
locomotives subject to the provisions of this part. You must perform
all maintenance and repair such that you have a reasonable technical
basis for believing the locomotive will continue (after the maintenance
or repair) to meet the applicable emission standards and FELs to which
it was certified.
    (d) The owner of the locomotive must keep records of all
maintenance and repairs that could reasonably affect the emission
performance of any locomotive subject to the provisions of this part.
Keep these records for eight years.
    (e) For locomotives equipped with emission controls requiring the
use of specific fuels, lubricants, or other fluids, proper maintenance
includes complying with the manufacturer/remanufacturer's
specifications for such fluids when operating the locomotives. This
requirement applies without regard to whether misfueling permanently
disables the emission controls. The following additional provisions
apply for locomotives equipped with SCR systems requiring the use of
urea or other reductants:
    (1) You must plan appropriately to ensure that reductant will be
available to the locomotive during operation.
    (2) If the SCR diagnostic indicates (or you otherwise determine)
that either reductant supply or reductant quality in the locomotive is
inadequate, you must replace the reductant as soon as practical.
    (3) If you operate a locomotive without the appropriate urea or
other reductant, you must report such operation to us within 30 days.
Note that such operation violates the requirement of this paragraph
(e); however, we may consider mitigating factors (such as how long the
locomotive was operated without the appropriate urea or other
reductant) in determining whether to assess penalties for such
violations.
    (f) Failure to fully comply with this section is a violation of 40
CFR 1068.101(b).

Sec.  1033.820  In-use locomotives.

    (a) We may require you to supply in-use locomotives to us for
testing. We will specify a reasonable time and place at which you must
supply the locomotives and a reasonable period during which we will
keep them for testing. We will make reasonable allowances for you to
schedule the supply of locomotives to minimize disruption of your
operations. The number of locomotives that you must supply is limited
as follows:
    (1) We will not require a Class I railroad to supply more than five
locomotives per railroad per calendar year.
    (2) We will not require a non-Class I railroad (or other entity
subject to the provisions of this subpart) to supply more than two
locomotives per railroad per calendar year. We will request locomotives
under this paragraph (a)(2) only for purposes that cannot be
accomplished using locomotives supplied under paragraph (a)(1) of this
section.
    (b) You must make reasonable efforts to supply manufacturers/
remanufacturers with the test locomotives needed to fulfill the in-use
testing requirements in subpart E of this part.
    (c) Failure to fully comply with this section is a violation of 40
CFR 1068.101(a)(2).

Sec.  1033.825  Refueling requirements.

    (a) If your locomotive operates using a volatile fuel, your
refueling equipment must be designed and used to minimize the escape of
fuel vapors. This means you may not use refueling equipment in a way
that renders any refueling emission controls inoperative or reduces
their effectiveness.
    (b) If your locomotive operates using a gaseous fuel, the hoses
used to refuel it may not be designed to be bled or vented to the
atmosphere under normal operating conditions.
    (c) Failing to fully comply with the requirements of this section
is a violation of 40 CFR 1068.101(b).

Subpart J--Definitions and Other Reference Information

Sec.  1033.901  Definitions.

    The following definitions apply to this part. The definitions apply
to all subparts unless we note otherwise. All undefined terms have the
meaning the Clean Air Act gives to them. The definitions follow:
    Adjustable parameter means any device, system, or element of design
that someone can adjust (including those which are difficult to access)
and that, if adjusted, may affect emissions or locomotive performance
during emission testing or normal in-use operation. This includes, but
is not limited to, parameters related to injection timing and fueling
rate. You may ask us to exclude a parameter if you show us that it will
not be adjusted in a way that affects emissions during in-use
operation.
    Aftertreatment means relating to a catalytic converter, particulate
filter, or any other system, component, or technology mounted
downstream of the exhaust valve (or exhaust port) whose design function
is to reduce emissions in the locomotive exhaust before it is exhausted
to the environment. Exhaust-gas recirculation (EGR) is not
aftertreatment.
    Alcohol fuel means a fuel consisting primarily (more than 50
percent by weight) of one or more alcohols: e.g., methyl alcohol, ethyl
alcohol.
    Alternator/generator efficiency means the ratio of the electrical
power output from the alternator/generator to the mechanical power
input to the alternator/generator at the operating point. Note that the
alternator/generator efficiency may be different at different operating
points. For example, the Institute of Electrical and Electronic
Engineers Standard 115 (``Test Procedures for Synchronous Machines'')
is an appropriate test procedure for determining alternator/generator
efficiency. Other methods may also be used consistent with good
engineering judgment.

    Applicable emission standard or applicable standard means a
standard to which a locomotive is subject; or, where a locomotive has
been or is being certified to another standard or FEL, the FEL or other
standard to which the locomotive has been or is being certified is the
applicable standard. This definition does not apply to Subpart H of
this part.
    Auxiliary emission control device means any element of design that
senses temperature, locomotive speed, engine RPM, transmission gear, or
any other parameter for the purpose of activating, modulating,
delaying, or deactivating the operation of any part of the emission-
control system.
    Auxiliary engine means a nonroad engine that provides hotel power
or power during idle, but does not provide power to propel the
locomotive.
    Averaging means the exchange of emission credits among engine
families within a given manufacturer's, or remanufacturer's product
line.
    Banking means the retention of emission credits by a credit holder
for use in future calendar year averaging or trading as permitted by
the regulations in this part.
    Brake power means the sum of the alternator/generator input power
and the mechanical accessory power, excluding any power required to
circulate engine coolant, circulate engine lubricant, supply fuel to
the engine, or operate aftertreatment devices.
    Calibration means the set of specifications, including tolerances,
specific to a particular design, version, or application of a
component, or components, or assembly capable of functionally
describing its operation over its working range.
    Carryover means the process of obtaining a certificate for one
model year using the same test data from the preceding model year, as
described in Sec.  1033.235(d). This generally requires that the
locomotives in the engine family do not differ in any aspect related to
emissions.
    Certification means the process of obtaining a certificate of
conformity for an engine family that complies with the emission
standards and requirements in this part, or relating to that process.
    Certified emission level means the highest deteriorated emission
level in an engine family for a given pollutant from a given test
cycle.
    Class I freight railroad means a Class I railroad that primarily
transports freight rather than passengers.
    Class I railroad means a railroad that has been classified as a
Class I railroad by the Surface Transportation Board.
    Class II railroad means a railroad that has been classified as a
Class II railroad by the Surface Transportation Board.
    Class III railroad means a railroad that has been classified as a
Class III railroad by the Surface Transportation Board.
    Clean Air Act means the Clean Air Act, as amended, 42 U.S.C. 7401-
7671q.
    Configuration means a unique combination of locomotive hardware and
calibration within an engine family. Locomotives within a single
configuration differ only with respect to normal production variability
(or factors unrelated to engine performance or emissions).
    Crankcase emissions means airborne substances emitted to the
atmosphere from any part of the locomotive crankcase's ventilation or
lubrication systems. The crankcase is the housing for the crankshaft
and other related internal parts.
    Days means calendar days, unless otherwise specified. For example,
where we specify working days, we mean calendar days excluding weekends
and U.S. national holidays.
    Design certify or certify by design means to certify a locomotive
based on inherent design characteristics rather than your test data,
such as allowed under Sec.  1033.625. All other requirements of this
part apply for such locomotives.
    Designated Compliance Officer means the Manager, Heavy Duty and
Nonroad Engine Group (6403-J), U.S. Environmental Protection Agency,
1200 Pennsylvania Ave., NW., Washington, DC 20460.
    Deteriorated emission level means the emission level that results
from applying the appropriate deterioration factor to the official
emission result of the emission-data locomotive.
    Deterioration factor means the relationship between emissions at
the end of useful life and emissions at the low-hour test point,
expressed in one of the following ways:
    (1) For multiplicative deterioration factors, the ratio of
emissions at the end of useful life to emissions at the low-hour test
point.
    (2) For additive deterioration factors, the difference between
emissions at the end of useful life and emissions at the low-hour test
point.
    Discrete-mode means relating to the discrete-mode type of steady-
state test described in Sec.  1033.515.
    Emission control system means any device, system, or element of
design that controls or reduces the regulated emissions from a
locomotive.
    Emission credits represent the amount of emission reduction or
exceedance, by a locomotive engine family, below or above the emission
standard, respectively. Emission reductions below the standard are
considered as ``positive credits,'' while emission exceedances above
the standard are considered as ``negative credits.'' In addition,
``projected credits'' refer to emission credits based on the projected
applicable production/sales volume of the engine family. ``Reserved
credits'' are emission credits generated within a calendar year waiting
to be reported to EPA at the end of the calendar year. ``Actual
credits'' refer to emission credits based on actual applicable
production/sales volume as contained in the end-of-year reports
submitted to EPA.
    Emission-data locomotive means a locomotive or engine that is
tested for certification. This includes locomotives tested to establish
deterioration factors.
    Emission-related maintenance means maintenance that substantially
affects emissions or is likely to substantially affect emission
deterioration.
    Engine family has the meaning given in Sec.  1033.230.
    Engine used in a locomotive means an engine incorporated into a
locomotive or intended for incorporation into a locomotive (whether or
not it is used for propelling the locomotive).
    Engineering analysis means a summary of scientific and/or
engineering principles and facts that support a conclusion made by a
manufacturer/remanufacturer, with respect to compliance with the
provisions of this part.
    EPA Enforcement Officer means any officer or employee of the
Environmental Protection Agency so designated in writing by the
Administrator or his/her designee.
    Exempted means relating to a locomotive that is not required to
meet otherwise applicable standards. Exempted locomotives must conform
to regulatory conditions specified for an exemption in this part 1033
or in 40 CFR part 1068. Exempted locomotives are deemed to be ``subject
to'' the standards of this part, even though they are not required to
comply with the otherwise applicable requirements. Locomotives exempted
with respect to a certain tier of standards may be required to comply
with an earlier tier of standards as a condition of the exemption; for
example, locomotives exempted with respect to Tier 3 standards may be
required to comply with Tier 2 standards.
    Excluded means relating to a locomotive that either has been
determined not to be a locomotive (as defined in this section) or
otherwise excluded under section Sec.  1033.5.

Excluded locomotives are not subject to the standards of this part.
    Exhaust emissions means substances (i.e., gases and particles)
emitted to the atmosphere from any opening downstream from the exhaust
port or exhaust valve of a locomotive engine.
    Exhaust-gas recirculation means a technology that reduces emissions
by routing exhaust gases that had been exhausted from the combustion
chamber(s) back into the locomotive to be mixed with incoming air
before or during combustion. The use of valve timing to increase the
amount of residual exhaust gas in the combustion chamber(s) that is
mixed with incoming air before or during combustion is not considered
exhaust-gas recirculation for the purposes of this part.
    Freshly manufactured locomotive means a new locomotive that
contains fewer than 25 percent previously used parts (weighted by the
dollar value of the parts) as described in Sec.  1033.640.
    Freshly manufactured engine means a new engine that has not been
remanufactured. An engine becomes freshly manufactured when it is
originally manufactured.
    Family emission limit (FEL) means an emission level declared by the
manufacturer/remanufacturer to serve in place of an otherwise
applicable emission standard under the ABT program in subpart H of this
part. The family emission limit must be expressed to the same number of
decimal places as the emission standard it replaces. The family
emission limit serves as the emission standard for the engine family
with respect to all required testing.
    Fuel system means all components involved in transporting,
metering, and mixing the fuel from the fuel tank to the combustion
chamber(s), including the fuel tank, fuel tank cap, fuel pump, fuel
filters, fuel lines, carburetor or fuel-injection components, and all
fuel-system vents.
    Fuel type means a general category of fuels such as diesel fuel or
natural gas. There can be multiple grades within a single fuel type,
such as high-sulfur or low-sulfur diesel fuel.
    Gaseous fuel means a fuel which is a gas at standard temperature
and pressure. This includes both natural gas and liquefied petroleum
gas.
    Good engineering judgment means judgments made consistent with
generally accepted scientific and engineering principles and all
available relevant information. See 40 CFR 1068.5 for the
administrative process we use to evaluate good engineering judgment.
    Green Engine Factor means a factor that is applied to emission
measurements from a locomotive or locomotive engine that has had little
or no service accumulation. The Green Engine Factor adjusts emission
measurements to be equivalent to emission measurements from a
locomotive or locomotive engine that has had approximately 300 hours of
use.
    High-altitude means relating to an altitude greater than 4000 feet
(1220 meters) and less than 7000 feet (2135 meters), or equivalent
observed barometric test conditions (approximately 79 to 88 kPa).
    High-sulfur diesel fuel means one of the following:
    (1) For in-use fuels, high-sulfur diesel fuel means a diesel fuel
with a maximum sulfur concentration greater than 500 parts per million.
    (2) For testing, high-sulfur diesel fuel has the meaning given in
40 CFR part 1065.
    Hotel power means the power provided by an engine on a locomotive
to operate equipment on passenger cars of a train; e.g., heating and
air conditioning, lights, etc.
    Hydrocarbon (HC) means the hydrocarbon group (THC, NMHC, or THCE)
on which the emission standards are based for each fuel type as
described in Sec.  1033.101.
    Identification number means a unique specification (for example, a
model number/serial number combination) that allows someone to
distinguish a particular locomotive from other similar locomotives.
    Idle speed means the speed, expressed as the number of revolutions
of the crankshaft per unit of time (e.g., rpm), at which the engine is
set to operate when not under load for purposes of propelling the
locomotive. There are typically one or two idle speeds on a locomotive
as follows:
    (1) Normal idle speed means the idle speed for the idle throttle-
notch position for locomotives that have one throttle-notch position,
or the highest idle speed for locomotives that have two idle throttle-
notch positions.
    (2) Low idle speed means the lowest idle speed for locomotives that
have two idle throttle-notch positions.
    Inspect and qualify means to determine that a previously used
component or system meets all applicable criteria listed for the
component or system in a certificate of conformity for remanufacturing
(such as to determine that the component or system is functionally
equivalent to one that has not been used previously).
    Installer means an individual or entity that assembles
remanufactured locomotives or locomotive engines.
    Line-haul locomotive means a locomotive that does not meet the
definition of switch locomotive. Note that this includes both freight
and passenger locomotives.
    Liquefied petroleum gas means the commercial product marketed as
propane or liquefied petroleum gas.
    Locomotive means a self-propelled piece of on-track equipment
designed for moving or propelling cars that are designed to carry
freight, passengers or other equipment, but which itself is not
designed or intended to carry freight, passengers (other than those
operating the locomotive) or other equipment. The following other
equipment are not locomotives (see 40 CFR parts 86, 89, and 1039 for
this diesel-powered equipment):
    (1) Equipment designed for operation both on highways and rails is
not a locomotive.
    (2) Specialized railroad equipment for maintenance, construction,
post-accident recovery of equipment, and repairs; and other similar
equipment, are not locomotives.
    (3) Vehicles propelled by engines with total rated power of less
than 750 kW (1006 hp) are not locomotives, unless the owner (which may
be a manufacturer) chooses to have the equipment certified to meet the
requirements of this part (under Sec.  1033.615). Where equipment is
certified as a locomotive pursuant to this paragraph (3), it is subject
to the requirements of this part for the remainder of its service life.
For locomotives propelled by two or more engines, the total rated power
is the sum of the rated power of each engine.
    Locomotive engine means an engine that propels a locomotive.
    Low-hour means relating to a locomotive with stabilized emissions
and represents the undeteriorated emission level. This would generally
involve less than 300 hours of operation.
    Low mileage locomotive means a locomotive during the interval
between the time that normal assembly operations and adjustments are
completed and the time that either 10,000 miles of locomotive operation
or 300 additional operating hours have been accumulated (including
emission testing if performed). Note that we may deem locomotives with
additional operation to be low mileage locomotives, consistent with
good engineering judgment.
    Low-sulfur diesel fuel means one of the following:
    (1) For in-use fuels, low-sulfur diesel fuel means a diesel fuel
market as low-sulfur diesel fuel having a maximum sulfur concentration
of 500 parts per million.

    (2) For testing, low-sulfur diesel fuel has the meaning given in 40
CFR part 1065.
    Malfunction means a condition in which the operation of a component
in a locomotive or locomotive engine occurs in a manner other than that
specified by the certifying manufacturer/remanufacturer (e.g., as
specified in the application for certification); or the operation of
the locomotive or locomotive engine in that condition.
    Manufacture means the physical and engineering process of
designing, constructing, and assembling a locomotive or locomotive
engine.
    Manufacturer has the meaning given in section 216(1) of the Clean
Air Act with respect to freshly manufactured locomotives or engines. In
general, this term includes any person who manufactures a locomotive or
engine for sale in the United States or otherwise introduces a new
locomotive or engine into commerce in the United States. This includes
importers who import locomotives or engines for resale.
    Manufacturer/remanufacturer means the manufacturer of a freshly
manufactured locomotive or engine or the remanufacturer of a
remanufactured locomotive or engine, as applicable.
    Model year means a calendar year in which a locomotive is
manufactured or remanufactured.
    New, when relating to a locomotive or locomotive engine, has the
meaning given in paragraph (1) of this definition, except as specified
in paragraph (2) of this definition:
    (1) A locomotive or engine is new if its equitable or legal title
has never been transferred to an ultimate purchaser. Where the
equitable or legal title to a locomotive or engine is not transferred
prior to its being placed into service, the locomotive or engine ceases
to be new when it is placed into service. A locomotive or engine also
becomes new if it is remanufactured or refurbished (as defined in this
section). A remanufactured locomotive or engine ceases to be new when
placed back into service. With respect to imported locomotives or
locomotive engines, the term ``new locomotive'' or ``new locomotive
engine'' also means a locomotive or locomotive engine that is not
covered by a certificate of conformity under this part or 40 CFR part
92 at the time of importation, and that was manufactured or
remanufactured after the effective date of the emission standards in 40
CFR part 92 which would have been applicable to such locomotive or
engine had it been manufactured or remanufactured for importation into
the United States. Note that replacing an engine in one locomotive with
an unremanufactured used engine from a different locomotive does not