40 CFR § 92.11 - Compliance with emission standards in extraordinary circumstances.
The provisions of this section 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 1 standards to the Tier 2 standards on January 1, 2005.
(a) In appropriate extreme and unusual circumstances which are clearly outside the control of the manufacturer and which could not have been avoided by the exercise of prudence, diligence, and due care, the Administrator may permit a manufacturer, for a brief period, to introduce into commerce locomotives which do not comply with the applicable emission standards if:
(3) 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;
(4) The manufacturer demonstrates that the locomotives comply with the less stringent standards that applied to the previous model year's production described in paragraph (a)(3) 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);
(5) The manufacturer exercised prudent planning and was not able to avoid the violation and has taken all reasonable steps to minimize the extent of the nonconformity; and
(2) Where the locomotives are to be included in an engine family that was certified to an FEL above the applicable standard, the manufacturer shall reserve credits to cover the locomotives covered by this section, and shall include the required information for these locomotives in the end-of-year report required by subpart D of this part.
(d) In granting relief under this section, the Administrator may also set other conditions as he/she determines to be appropriate, such as requiring payment of fees to negate an economic gain that such relief would otherwise provide to the manufacturer.