40 CFR § 1037.645 - In-use compliance with family emission limits (FELs).
Section 1037.225 describes how to change the FEL for a vehicle family during the model year. This section, which describes how you may ask us to increase a vehicle family's FEL after the end of the model year, is intended to address circumstances in which it is in the public interest to apply a higher in-use FEL based on forfeiting an appropriate number of emission credits. For example, this may be appropriate where we determine that recalling vehicles would not significantly reduce in-use emissions. We will generally not allow this option where we determine the credits being forfeited would likely have expired.
(a) You may ask us to increase a vehicle family's FEL after the end of the model year if you believe some of your in-use vehicles exceed the CO2 FEL that applied during the model year (or the CO2 emission standard if the family did not generate or use emission credits). We may consider any available information in making our decision to approve or deny your request.
(b) If we approve your request under this section, you must apply emission credits to cover the increased FEL for all affected vehicles. Apply the emission credits as part of your credit demonstration for the current production year. Include the appropriate calculations in your final report under § 1037.730.
(c) Submit your request to the Designated Compliance Officer. Include the following in your request:
(1) Identify the names of each vehicle family that is the subject of your request. Include separate family names for different model years
(2) Describe why your request does not apply for similar vehicle models or additional model years, as applicable.
(3) Identify the FEL that applied during the model year for each configuration and recommend replacement FELs for in-use vehicles; include a supporting rationale to describe how you determined the recommended replacement FELs.
(4) Describe whether the needed emission credits will come from averaging, banking, or trading.
(d) If we approve your request, we will identify one or more replacement FELs, as follows:
(1) Where your vehicle family includes more than one sub-family with different FELs, we may apply a higher FEL within the family than was applied to the vehicle's configuration in your final ABT report. For example, if your vehicle family included three sub-families, with FELs of 200 g/ton-mile, 210 g/ton-mile, and 220 g/ton-mile, we may apply a 220 g/ton-mile in-use FEL to vehicles that were originally designated as part of the 200 g/ton-mile or 210 g/ton-mile sub-families.
(2) Without regard to the number of sub-families in your certified vehicle family, we may specify one or more new sub-families with higher FELs than you included in your final ABT report. We may apply these higher FELs as in-use FELs for your vehicles. For example, if your vehicle family included three sub-families, with FELs of 200 g/ton-mile, 210 g/ton-mile, and 220 g/ton-mile, we may specify a new 230 g/ton-mile sub-family.
(3) Our selected values for the replacement FEL will reflect our best judgment to accurately reflect the actual in-use performance of your vehicles, consistent with the testing provisions specified in this part.
(4) We may apply the higher FELs to other vehicle families from the same or different model years to the extent they used equivalent emission controls. We may include any appropriate conditions with our approval.
(e) If we order a recall for a vehicle family under 40 CFR 1068.505, we will no longer approve a replacement FEL under this section for any of your vehicles from that vehicle family, or from any other vehicle family that relies on equivalent emission controls.