California Code of Regulations
Title 13 - Motor Vehicles
Division 3 - Air Resources Board
Chapter 9 - Off-Road Vehicles and Engines Pollution Control Devices
Article 4.5 - Off-Road Large Spark-Ignition Engines
Section 2438 - In-Use Compliance Program
Universal Citation: 13 CA Code of Regs 2438
Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a) This section applies to new 2004 and later model year off-road large spark-ignition engines with engine displacement greater than 1.0 liter.
(b) Manufacturer In-Use Testing Program.
Standards and Test Procedures. The emission standards, exhaust sampling and analytical procedures are those described in the Test Procedures, and are applicable to engines tested only for exhaust emissions. An engine is in compliance with these standards and test procedures only when all portions of these in-use test procedures and specified requirements from the Test Procedures are fulfilled, except that any adjustable engine parameters must be set to the nominal value or position as indicated on the engine label.
(1) Within a manufacturer's
model-year engine production period, CARB will identify those engine families,
and the specific configurations within an engine family, that the manufacturer
must subject to in-use testing as described below. For each model year, CARB
may identify a number of engine families that is no greater than 25 percent of
the number of engine families to which this article is applicable. For those
manufacturers producing three or less engine families in a model year, CARB may
designate a maximum of one engine family per model year for in-use
testing.
(2) For each engine family
identified by CARB, engine manufacturers must perform emission testing of an
appropriate sample of in-use engines from each engine family. Manufacturers
must submit data from this in-use testing to CARB.
(3) An engine manufacturer must test in-use
engines from each engine family identified by CARB. All engines selected by the
manufacturer for testing must be identified by the manufacturer, and a list of
the selected engines must be submitted to the Executive Officer, prior to the
onset of testing. Engines to be tested must have accumulated a minimum of 0.50
(50 percent) of the family's certified useful life period. The number of
engines to be tested by a manufacturer will be determined by the following
method:
(A) a minimum of four engines per
family, provided that no engine fails any emission standard. For each
exceedance, two additional engines must be tested until the total number of
engines equals ten.
(B) For engine
families of less than 500 engines (national production) for the identified
model year or for engine manufacturers who make less than or equal to 2,000
engines nationally for that model year, a minimum of two (2) engines per family
provided that no engine fails any emission standard. For each failing engine,
two more engines shall be tested until the total number of engines equals ten
(10).
(C) If an engine family was
certified using carryover emission data and has been previously tested under
paragraphs (b)(3)(A) or (b)(3)(B) of this section (and a recall for that family
has not occurred), then only one engine for that family must be tested. If that
one engine fails any emission standard, testing must be conducted as outlined
in subsections (b)(3)(A) or (b)(3)(B), whichever is appropriate.
(4) The Executive Officer may
approve an alternative to manufacturer in-use testing, where:
(A) Engine family production is less than or
equal to 200 per year, nationally;
(B) Engines cannot be obtained for testing
because they are used substantially in vehicles or equipment that are not
conducive to engine removal such as large vehicles or equipment from which the
engine cannot be removed without dismantling either the engine, vehicle, or
equipment; or
(C) Other compelling
circumstances associated with the structure of the industry and uniqueness of
engine applications. Such alternatives shall be designed to determine whether
the engine family is in compliance.
(5) The engine manufacturer shall procure
in-use engines which have been operated between 0.50 and 1.0 times the
certified engine's useful life period. The engine manufacturer may test engines
from more than one model year in a given year. The manufacturer shall submit a
plan for testing within twelve calendar months after receiving notice that CARB
has identified a particular engine family for testing and shall complete
testing of such engine family within 24 calendar months from the date of
approval of the plan by CARB. Test engines may be procured from sources
associated with the engine manufacturer (i.e., manufacturer-established fleet
engines, etc.) or from sources not associated with the manufacturer (i.e.,
consumer-owned engines, independently owned fleet engines, etc.).
(c) Maintenance, procurement and testing of in-use engines.
(1) A test engine
must have a maintenance and use history representative of in-use conditions.
(A) To comply with this requirement a
manufacturer must obtain information from the end users regarding the
accumulated usage, maintenance, repairs, operating conditions, and storage of
the test engines.
(B) Documents
used in the procurement process must be maintained as required.
(2) The manufacturer may perform
minimal restorative maintenance on components of a test engine that are not
subject to parameter adjustment. Maintenance may include only that which is
listed in the owner's instructions for engines with the amount of service and
age of the acquired test engine. Repairs may be performed on a test engine with
prior Executive Officer approval. Documentation of all maintenance, repairs,
defects, and adjustments shall be maintained and retained as
required.
(3) At least one valid
emission test, according to the Test Procedure, is required for each in-use
engine.
(4) The Executive Officer
may waive portions or requirements of the test procedure, if any, that are not
necessary to determine in-use compliance.
(5) If a selected in-use engine fails to
comply with any applicable emission standards, the manufacturer shall determine
the reason for noncompliance. The manufacturer must report within 72 hours
after the completion of the test specifying the emission results and
identifying the pollutant which failed to comply with the emission standard.
The manufacturer must report all such reasons of noncompliance within fifteen
business days of completion of testing. Additional time beyond the initial
fifteen days may be granted providing that the manufacturer receives prior
approval from the Executive Officer. The reports may be filed electronically or
mailed to the following address: Chief of Emissions Certification and
Compliance Division, 4001 Iowa Avenue, Riverside, CA 92507.
(6) At the discretion of the Executive
Officer, an engine manufacturer may test more engines than the minima described
in paragraph (b)(3) of this section or may concede failure before testing a
total of ten engines. Upon conceding failure the manufacturer shall proceed
with a voluntary recall program as specified in Section
2439.
(7) The Executive Officer will consider
failure rates, average emission levels and the existence of any defects, among
other factors, in determining whether to pursue remedial action under this
subpart. The Executive Officer may order a recall pursuant to Section
2439 before testing reaches the
tenth engine whenever the Executive Officer has determined, based on
production-line test results or in-use test results, enforcement testing
results, or any other information, that a substantial number of a class or
category of equipment or engines produced by that manufacturer, although
properly maintained and used, contain a failure in an emission-related
component which, if uncorrected, may result in the equipments' or engines'
failure to meet applicable standards over their useful lives; or whenever a
class or category of equipment or engines within their useful lives, on
average, do not conform to the emission standards prescribed pursuant to Part 5
(commencing with Section 43000) of Division 26 of the Health and Safety Code,
or any regulation adopted by the state board pursuant thereto, other than an
emissions standard applied to new engines to determine "certification" as
specified in Chapter 9, as applicable to the model year of such equipment or
engines.
(8) Prior to a
CARB-ordered recall, the manufacturer may perform a voluntary emissions recall
pursuant to Article 4.5, Section
2439(b). Such
manufacturer is subject to the reporting requirements in subsection (d)
below.
(9) Once CARB determines
that a substantial number of engines fail to conform with the requirements, the
manufacturer will not have the option of a voluntary emissions
recall.
(d) In-use test program reporting requirements.
(1) The
manufacturer shall electronically submit to the Executive Officer within three
months of completion of testing all emission testing results generated from the
in-use testing program. The following information must be reported for each
test engine:
(A) engine family,
(B) model,
(C) engine serial number or alternate
identification, as applicable,
(D)
date of manufacture,
(E) estimated
hours of use,
(F) date and time of
each test attempt,
(G) results (if
any) of each test attempt,
(H)
results of all emission testing,
(I) summary of all maintenance, repairs, and
adjustments performed,
(J) summary
(if any) of all CARB pre-approved modifications and repairs,
(K) determinations of noncompliance or
compliance.
(2) The
manufacturer must electronically submit the results of its in-use testing with
a pre-approved information heading. The Executive Officer may exempt
manufacturers from this requirement upon written request with supporting
justification.
(3) All testing
reports and requests for approvals made under this subpart shall be sent to the
Executive Officer.
(4) The
Executive Officer may require modifications to a manufacturer's in-use testing
programs.
(e) In-use emissions credit, averaging, banking, and trading program.
(1) General applicability
(A) The in-use credit program for eligible
engines is described in this subsection. Participation in this program is
voluntary.
(B) An engine family is
eligible to participate in the in-use credit program if it is subject to
regulation under Section
2433 of this part with certain
exceptions specified in paragraph (C).
(C) Engines may not participate in the in-use
averaging, banking, and trading program if they are delivered to a "point of
first retail sale" outside of California.
(D) Reserved.
(E) An engine family with a compliance level,
as determined by in-use testing below, the applicable emission standards to
which the engine family is certified may generate emission credits for
averaging, banking, or trading in the in-use credit program.
(F) Positive credits generated in a given
model year may be used in that model year or in any subsequent model
year.
(G) A manufacturer of an
engine family with a compliance level exceeding the applicable emission
standards to which the engine family is certified, may, prior to the date of
the report use previously banked credits, purchase credits from another
manufacturer, or perform additional testing to address the associated credit
deficit (negative credits or a need for credits).
(H) Reserved.
(I) A manufacturer must notify the Executive
Officer of plans to test additional engine families beyond the maximum 25%
required for the in-use testing program. Such notice must be submitted to the
Executive Officer 30 days prior to initiation of testing. If the additional
testing discovers an engine family to be in noncompliance with the applicable
emission standards, the testing must be treated as if it were a failure of the
normal in-use testing requirement of an engine family.
(J) Manufacturers must demonstrate a zero or
positive credit balance under the in-use credit program for a particular model
year within 90 days of the end of the in-use testing of that model year's
engine families.
(2)
Engines subject to the 2004 and later model-year emission standards are
eligible to participate in the in-use credit program.
(3) The definitions below shall apply to this
subsection:
(A) Averaging means the exchange
of in-use emission credits among LSI engine families within a given
manufacturer's product line.
(B)
Banked credits refer to positive emission credits based on applicable actual
production or sales volume as contained in the end of model year in-use testing
reports submitted to Executive Officer of CARB. Some or all of these banked
credits may be revoked if the Executive Officer's review of the end of model
year in-use testing reports or any subsequent audit action(s) uncovers problems
or errors.
(C) Banking means the
retention of in-use emission credits by the manufacturer generating the
emission credits for use in future model year averaging or trading as permitted
by these regulations.
(D)
Carry-over engine family means an engine family which undergoes certification
using carryover test data from previous model years.
(E) Compliance level for an engine family is
determined by averaging the in-use test results from each engine.
(F) In-use credits represent the amount of
emission reduction or exceedance, for each regulated pollutant, by an engine
family below or above, respectively, the applicable emission standards.
Emission reductions below the emission standard are considered "positive
credits," while emission exceedances above the emission standard are considered
"negative or required credits."
(G)
Trading means the exchange of in-use emission credits between manufacturers or
brokers.
(4) Averaging.
(A) A manufacturer may use averaging across
engine families to demonstrate a zero or positive credit balance for a model
year. Positive credits to be used in averaging may be obtained from credits
generated by another engine family of the same model year, credits banked in
previous model years, or credits obtained through trading.
(B) Credits used to demonstrate a zero or
positive credit balance must be used at a rate of 1.1 to 1.
(5) Banking.
(A) A manufacturer of an engine family with
an in-use compliance level below the applicable emission standards for a given
model year may bank positive in-use credits for that model year for in-use
averaging and trading.
(B) A
manufacturer may consider credits banked 30 days after the submission of the
report. During the 30 day period, CARB will work with the manufacturer to
correct any error in calculating banked credits, if necessary.
(6) Trading.
(A) An engine manufacturer may exchange
positive in-use emission credits with other LSI engine manufacturers through
trading.
(B) In-use credits for
trading can be obtained from credits banked for model years prior to the model
year of the engine family requiring in-use credits.
(C) Traded in-use credits can be used for
averaging, banking, or further trading transactions.
(D) Unless otherwise approved by the
Executive Officer, a manufacturer that generates positive in-use credits must
wait 30 days after it has both completed in-use testing for the model year for
which the credits were generated and submitted the report before it may
transfer credits to another manufacturer or broker.
(E) In the event of a negative credit balance
resulting from a transaction, both the buyer and the seller are liable, except
in cases involving fraud. Engine families participating in a negative trade may
be subject to recall under section
2439 of this article.
(7) Credit Calculation.
(A) For each participating engine family,
emission credits (positive or negative) are to be calculated according to the
following equation and rounded, in accordance with ASTM E29-93a, to the nearest
gram. ASTM E29-93a has been incorporated by reference. Consistent units are to
be used throughout the equation. The following equation is used to determine
the credit status for an engine family whether generating positive or negative
in-use emission credits:
Credits (grams) = SALES X (STD - CL) X POWER X AF X LF X UL
Where:
| SALES | = | the number of eligible sales tracked to the point of first retail sale in the U.S. for the given engine family during the model year. |
| STD | = | the emission standard or family emission level in g/bhp-hr or g/kW-hr, as approproate and as noted in California Code of Regulations, Title 13, Section 2433. |
| CL | = | compliance level of the in-use testing in g/bhp-hr or g/kW-hr, as appropriate as approved by CARB. |
| UL | = | useful life in hours (5000 hours for engines with displacement) greater than 1.0 liter. |
| Power | = | the average power of an engine family in bhp or kW (sales weighted). The power of each configuration is the rated output in horsepower as determined by SAE J1349 (June 1995) or J1995 (June 1995), as applicable. These procedures have been incorporated by reference. |
| LF | = | Load factor; Fraction of rated engine power utilized in-use (0.32 for engines with displacement greater than 1.0 liter. |
| AF | = | adjustment factor for the number of tests conducted, as determined from the following table, except that when a manufacturer concedes failure before completion of testing, the adjustment factor shall be 1.0: |
| Number of Engines Tested | Adjustment Factor |
| 2*, 4 | 0.5 |
| 6 | 0.75 |
| 8 | 0.9 |
| 10 | 1.0 |
| __________ | |
| * Small volume manufacturer | |
(B) Any credits used for either averaging,
banking, or trading shall be assessed a one-time discount of 10
percent.
(8) Maintenance
of records.
(A) Any manufacturer that is
participating in the in-use credit program set forth in this subsection shall
establish, maintain, and retain the records with respect to its participation
in the in-use credit program.
(B)
The Executive Officer may void an Executive Order for an engine family for
which the manufacturer fails to retain the records required under this section
or to provide such information to the Executive Officer or designee upon
request.
(9) Reporting
requirements.
(A) Any manufacturer who
participates in the in-use credit program is required to submit an end of the
model year in-use testing report either within 90 days of the end of the model
year in-use testing of a given model year's engine families, or at the same
time as the final certification averaging, banking, and trading report,
whichever is later. The end of the model year in-use testing report must
contain the required information and show the calculated credits from all the
in-use testing conducted by the manufacturer for a given model year.
(B) Reports shall be submitted to the Chief
of the Emissions Certification and Compliance Division.
(C) A manufacturer that fails to submit a
timely report as required will be considered to not have participated in the
in-use credit program.
(D) If the
Executive Officer or the manufacturer determines that a reporting error
occurred on an end of model year report previously submitted to CARB under this
subsection, or an engine family in-use testing report submitted to CARB, the
manufacturer's credits and credit calculations will be recalculated. Erroneous
positive credits will be void. Erroneous negative credits may be adjusted by
the Executive Officer. An update of previously submitted "point of first retail
sale" information is not considered an error and no increase in the number of
credits will be allowed unless an error occurred in the calculation of credits
due to an error in the "point of first retail sale" information from the time
of the original end of model year report.
(10) Notice of Opportunity for Hearing.
Any voiding of an engine family's Executive Order will occur only after the manufacturer concerned has been offered an opportunity for a hearing. The Executive Officer must approve or disapprove the documents required by this Section within 90 days of the date such documents are received from the manufacturer. Any disapproval must be accompanied by a statement of the reasons therefor. In the event of disapproval, the manufacturer may file for an adjudicative hearing u nder Title 17, California Code of Regulation, Division 3, Chapter 1, Subchapter 1.25 to review the decision of the Executive Officer.
Note: Authority cited: Sections 39600, 39601, 43013, 43018, 43101, 43102 and 43104, Health and Safety Code. Reference: Sections 43013, 43017, 43018, 43101, 43102, 43104, 43105, 43150, 43151, 43152, 43153, 43154, 43205.5, 43210, 43210.5, 43211 and 43212, Health and Safety Code.
Note: Authority cited: Sections 39600, 39601, 43013, 43018, 43101, 43102 and 43104, Health and Safety Code. Reference: Sections 43013, 43017, 43018, 43101, 43102, 43104, 43105, 43150, 43151, 43152, 43153, 43154, 43205.5, 43210, 43210.5, 43211 and 43212, Health and Safety Code.
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