(a) The following acts and the causing thereof are prohibited:

(1)

(i) In the case of a manufacturer of new nonroad engines, vehicles, or equipment for distribution in commerce, the sale, or the offering for sale, or the introduction, or delivery for introduction, into commerce, of any new nonroad engine manufactured after the applicable effective date under this part, or any nonroad vehicle or equipment containing such engine, unless such engine is covered by a certificate of conformity issued (and in effect) under regulations found in this part.

(ii) In the case of any person, except as provided in subpart G of this part, the importation into the United States of any new nonroad engine manufactured after the applicable effective date under this part, or any nonroad vehicle or equipment containing such engine, unless such engine is covered by a certificate of conformity issued (and in effect) under regulations found in this part.

(2)

(i) For a person to fail or refuse to permit access to or copying of records or to fail to make reports or provide information required under §89.1004.

(ii) For a person to fail or refuse to permit entry, testing, or inspection authorized under §§89.129, 89.506 or 89.1004.

(iii) For a person to fail or refuse to perform tests, or to have tests performed as required under §§89.119 or 89.1004.

(iv) For a person to fail to establish or maintain records as required under §89.1004.

(3)

(i) For a person to remove or render inoperative a device or element of design installed on or in a nonroad engine, vehicle or equipment in compliance with regulations under this part prior to its sale and delivery to the ultimate purchaser, or for a person knowingly to remove or render inoperative such a device or element of design after the sale and delivery to the ultimate purchaser; or

(ii) For a person to manufacture, sell or offer to sell, or install, a part or component intended for use with, or as part of, a nonroad engine, vehicle or equipment, where a principal effect of the part or component is to bypass, defeat, or render inoperative a device or element of design installed on or in a nonroad engine in compliance with regulations issued under this part, and where the person knows or should know that the part or component is being offered for sale or installed for this use or put to such use; or

(iii) For a person to deviate from the provisions of §89.130 when rebuilding an engine (or rebuilding a portion of an engine or engine system). Such a deviation violates paragraph (a)(3)(i) of this section.

(4) For a manufacturer of a new nonroad engine subject to standards prescribed under this part:

(i) To sell, offer for sale, or introduce or deliver into commerce, a nonroad engine unless the manufacturer has complied with the requirements of §89.1007.

(ii) To sell, offer for sale, or introduce or deliver into commerce, a nonroad engine unless a label or tag is affixed to the engine in accordance with §89.110.

(iii) To fail or refuse to comply with the requirements of §89.1008.

(iv) Except as provided in §89.109, to provide directly or indirectly in any communication to the ultimate purchaser or a subsequent purchaser that the coverage of a warranty under the Act is conditioned upon use of a part, component, or system manufactured by the manufacturer or a person acting for the manufacturer or under its control, or conditioned upon service performed by such persons.

(v) To fail or refuse to comply with the terms and conditions of the warranty under §89.1007.

(5) For a person to circumvent or attempt to circumvent the residence time requirements of paragraph (2)(iii) of the nonroad engine definition in §89.2.

(6) For a manufacturer of nonroad vehicles or equipment to distribute in commerce, sell, offer for sale, or introduce into commerce a nonroad vehicle or piece of equipment which contains an engine not covered by a certificate of conformity, except as otherwise allowed by this part.

(b) For the purposes of enforcement of this part, the following apply:

(1) Nothing in paragraph (a)(3) of this section is to be construed to require the use of manufacturer parts in maintaining or repairing a nonroad engine.

(2) Actions for the purpose of repair or replacement of a device or element of design or any other item are not considered prohibited acts under §89.1003(a) if the action is a necessary and temporary procedure, the device or element is replaced upon completion of the procedure, and the action results in the proper functioning of the device or element of design.

(3) Actions for the purpose of a conversion of a nonroad engine for use of a clean alternative fuel (as defined in Title II of the Act) are not considered prohibited acts under §89.1003(a) if:

(i) the vehicle complies with the applicable standard when operating on the alternative fuel, and the device or element is replaced upon completion of the conversion procedure, and

(ii) in the case of engines converted to dual fuel or flexible use, the action results in proper functioning of the device or element when the nonroad engine operates on conventional fuel.

(4) Certified nonroad engines shall be used in all vehicles and equipment manufactured on or after the applicable model years in §89.112 that are self-propelled, portable, transportable, or are intended to be propelled while performing their function, unless the manufacturer of the vehicle or equipment can prove that the vehicle or equipment will be used in a manner consistent with paragraph (2) of the definition of nonroad engine in §89.2. After the date on which a new standard takes effect, nonroad vehicle and equipment manufacturers may continue to use nonroad engines built prior to this date that are not certified to the standard until inventories of those engines are depleted; however, stockpiling of such nonroad engines will be considered a violation of this section.

(5)-(6) [Reserved]

(7) A new nonroad engine intended solely to replace a nonroad engine in a piece of nonroad equipment, where the engine requiring replacement is not certified or is certified to emission standards that are less stringent than those in effect when the replacement engine is built, shall not be subject to the prohibitions of paragraph (a)(1) of this section or to the requirements of §89.105 and paragraph (b)(4) of this section, provided that:

(i) The engine manufacturer has ascertained that no engine produced by itself or by the manufacturer of the engine that is being replaced, if different, and certified to the requirements of this subpart, is available with the appropriate physical or performance characteristics to repower the equipment; and

(ii) The engine manufacturer or its agent takes ownership and possession of the engine being replaced or confirms that the engine has been destroyed; and

(iii) If the engine being replaced was not subject to any emission standards under this part, the replacement engine must have a permanent label with your corporate name and trademark and the following language, or similar alternate language approved by the Administrator: THIS ENGINE DOES NOT COMPLY WITH FEDERAL NONROAD OR ON-HIGHWAY EMISSION REQUIREMENTS. SALE OR INSTALLATION OF THIS ENGINE FOR ANY PURPOSE OTHER THAN AS A REPLACEMENT ENGINE FOR AN ENGINE MANUFACTURED PRIOR TO JANUARY 1 [INSERT APPROPRIATE YEAR] IS A VIOLATION OF FEDERAL LAW SUBJECT TO CIVIL PENALTY.

(iv) If the engine being replaced was subject to emission standards less stringent than those in effect when you produce the replacement engine, the replacement engine must have a permanent label with your corporate name and trademark and the following language, or similar alternate language approved by the Administrator:

THIS ENGINE COMPLIES WITH U.S. EPA NONROAD EMISSION REQUIREMENTS FOR [Identify the appropriate emission standards (by model year, tier, or emission levels) for the replaced engine] ENGINES UNDER 40 CFR 89.1003(b)(7). SELLING OR INSTALLING THIS ENGINE FOR ANY PURPOSE OTHER THAN TO REPLACE A [Identify the appropriate emission standards (by model year, tier, or emission levels) for the replaced engine] ENGINE MAY BE A VIOLATION OF FEDERAL LAW SUBJECT TO CIVIL PENALTY.

(v) If the old engine was subject to emission standards less stringent than those in effect when you produce the replacement engine, you must make the replacement engine in a configuration identical in all material respects to the old engine. You may alternatively make the replacement engine in a configuration identical in all material respects to another certified engine of the same or later model year, as long as the engine is not certified with a family emission limit higher than that of the engine being replaced.

(vi) Engines sold pursuant to the provisions of this paragraph (b)(7) will neither generate nor use emission credits and will not be part of any accounting under the averaging, banking and trading program.

(vii) In cases where an engine is to be imported for replacement purposes under the provisions of this paragraph (b)(7), the term “engine manufacturer” shall not apply to an individual or other entity that does not possess a current Certificate of Conformity issued by EPA under this part; and

(viii) The provisions of this section may not be used to circumvent emission standards that apply to new engines under this part.

[59 FR 31335, June 17, 1994, as amended at 61 FR 58106, Nov. 12, 1996; 63 FR 57022, Oct. 23, 1998; 70 FR 40447, July 13, 2005; 73 FR 59179, Oct. 8, 2008]