(a) Applicability. These in-use compliance requirements apply to all diesel emission control strategies for on-road, off-road, stationary, marine, RTG crane, APU, and TRU applications. It is the responsibility of the applicant to perform in-use compliance testing for each verified diesel emission control strategy family (see section 2706(j)(2)). Field testing is required when 100 units within a given diesel emission control strategy family have been sold or leased in the California market and emissions testing when 300 units have been sold or leased in the California market. Diesel emission control strategies that consist solely of a fuel additive or an alternative diesel fuel are only required to perform in-use compliance emissions testing or comply with other tests and conditions approved by the Executive Officer at the time of verification. For entirely fuel-based strategies, in-use compliance emissions testing is required, if not specified in the Executive Order, when:

(b) Alternative Test Schedule. Applicants may elect to skip field testing and perform only in-use compliance emissions testing when 100 units within a given diesel emission control strategy family name have been sold or leased in the California market. Applicants selecting this option must test a minimum of 4 diesel emission control strategies for each family name per the Emissions Testing requirements of section 2709(c)(2) and the In-Use Compliance Emissions Testing procedures of section 2709(i).

(c) Age of Test Units. For both field and emissions testing, applicants must select test units for each diesel emission control strategy family based on the following:

(d) In-Use Compliance Testing Proposals. Applicants with entirely fuel-based strategies must submit to the Executive Officer an in-use compliance emissions testing proposal no later than 90 days after meeting the requirements specified in section 2709(a). All other applicants must submit to the Executive Officer a separate in-use compliance testing proposal for both field and emissions testing for each family name. The in-use compliance field testing proposal must be submitted to the Executive Officer no later than 90 days after selling or leasing in the California market the 100th unit. Applicants that fail to submit their field testing proposal within 90 days after selling or leasing the 100th unit will be required to follow the Alternative Test Schedule. The in-use compliance emissions testing proposal must be submitted to the Executive Officer within 90 days after selling or leasing in the California market the 300th unit. Each in-use compliance testing proposal shall be submitted in the format specified by the Executive Officer and at a minimum include:

(e) Selection of Diesel Emission Control Strategies for Testing. For each diesel emission control strategy family and for both field and emissions testing, the applicant must propose a representative sample of ten installed diesel emission control strategies for in-use compliance testing based on information provided per section 2709(d) for review and approval by the Executive Officer. The selected diesel emission control strategies should come from a representative sample of engines or vehicles equipped with the control strategies. The applicant must provide an explanation of the methodology used to ensure that the proposed test units are representative of the engines or vehicles equipped with the applicant's diesel emission control strategy. This methodology must be based on relevant data (e.g. cumulative sales information, size distribution, operating conditions, etc.) and these data must be provided with a detailed explanation for Executive Officer review and approval. The engines or vehicles equipped with the selected diesel emission control strategies may receive a tune-up or normal maintenance prior to the applicant obtaining the diesel emission control strategies for testing. The applicant must obtain information from the end users regarding the diesel emission control strategies' accumulated mileage or hours of usage, maintenance records (to the extent practicable), operating conditions, cleaning history (if available), and a description of any unscheduled maintenance that may affect the emission results.

(f) Selection of Test Engines. The Executive Officer must approve the appropriate emissions test engines or vehicles for in-use compliance emissions testing. The applicant must provide proposed test vehicles/ engines for the Executive Officer's review in their in-use compliance emissions testing proposal. If the Executive Officer determines that a diesel emission control strategy affects the performance of the engine, the Executive Officer may require the applicant to test the selected diesel emission control strategy with the engine on which it is installed (e.g. fuel-based strategies). The applicant may tune-up or rebuild test engines prior to, but not after, baseline testing unless rebuilding the engine is an integral part of the diesel emission control strategy. All testing should be performed with the test engine in a proper state of maintenance. A test engine is generally determined to be in a proper state of maintenance if its emissions levels are within 10 percent of its original certification values. Emissions of NO₂ from the test engine must not exceed 15 percent of the total baseline NOx emissions by mass. If there is a special category of engines with NO₂ emission levels that normally exceed 15 percent, this requirement may be adjusted for those engines at the discretion of the Executive Officer.

(g) Number of Diesel Emission Control Strategies to be Tested. The number of diesel emission control strategies an applicant must test will be determined as follows:

(h) In-Use Compliance Field Testing. Applicants must propose a test methodology that can be used in-field to determine if the applicant's diesel emission control strategy continues to successfully reduce emissions such as a smoke opacity test that meets the requirements of the Society of Automotive Engineers J1667 test procedures or similar (i.e., portable emissions monitoring system). Applicants must also perform tests to demonstrate the continuing functionality and durability of their diesel emission control strategy. Applicants must identify specific test procedures and inspections that will be used to verify that all parts of the diesel emission control strategy are intact and functioning as originally verified (e.g. electronic control units, backpressure monitors, temperature sensors, hoses, brackets, etc.). These test procedures and inspections, including proposed criteria that will be used to analyze the results to determine compliance, must be defined in the applicant's in-use compliance field testing proposal and receive Executive Officer approval prior to performing in-use compliance field testing.

(i) In-use Compliance Emissions Testing. Applicants must follow the test procedures used for emission reduction verification as described in section 2703 (both baseline and control tests are required). Applicants must also perform tests to demonstrate the continuing functionality and durability of their diesel emission control strategy. Applicants must identify specific test procedures and inspections that will be used to verify that all parts of the diesel emission control strategy are intact and functioning as originally verified (e.g. electronic control units, backpressure monitors, temperature sensors, hoses, brackets, etc.). These test procedures and inspections, including proposed criteria that will be used to analyze the results to determine compliance, must be defined in the applicant's in-use compliance testing proposal and receive Executive Officer approval prior to performing in-use compliance emissions testing. As provided in section 2709(j), the applicant may request the Executive Officer to review and approve an alternative testing procedure. If a diesel emission control strategy verified by U.S. EPA must perform engine dynamometer testing with the Heavy-duty Transient FTP cycle to fulfill the in-use compliance requirements of that program, but was verified by the Executive Officer with chassis dynamometer testing, the Executive Officer will also accept testing with the Heavy-duty Transient FTP cycle for the in-use compliance requirements of this Procedure.

(j) Alternative Test Cycles and Methods. The Executive Officer may consider, on a case by case basis, an alternative test plan or method for applicants to satisfy the in-use compliance requirements of this section. For in-use compliance emissions testing, the proposed alternative test plan must be as scientifically sound as the testing described in section 2709(i) of the Procedure and it must produce accurate results that will indicate if the emission control strategy reduces emissions to the level for which it was verified. For in-use compliance field testing, the proposed alternative test plan must show that the diesel emission control strategy continues to function properly and indicate if the strategy is damaged or compromised in any way. Use of an alternative test procedure must be approved by the Executive Officer.

(k) In-Use Compliance Report. The applicant must submit an in-use compliance report to the Executive Officer after either field or emissions in-use compliance testing. The applicant must submit the in-use compliance field testing report no later than 18 months after selling or leasing the 100th unit in the California market, or for entirely fuel-based strategies, no later than 18 months after meeting the requirements specified in section 2709(a). The applicant must submit the in-use compliance emissions testing report no later than 18 months after selling or leasing the 300th unit in the California market. The following information must be reported for each of the diesel emission control strategies tested:

(l) The Executive Officer may request the applicant to perform additional in-use testing if, at any time, the cumulative number of valid warranty claims for the same part or component of the diesel emission control strategy exceed four percent of the cumulative sales or leases for the diesel emission control strategy family, or based on other relevant information. As noted in section 2707(c), if the cumulative number of valid warranty claims for the same part or component of a diesel emission control strategy exceed four percent of the cumulative sales or leases of the diesel emission control strategy family, the applicant must notify the Executive Officer and submit a warranty report within 30 calendar days of that time.

(m) Conditions for Passing In-Use Compliance Testing.

(n) Failure of In-use Compliance Testing. If a diesel emission control strategy family does not meet the minimum in-use compliance requirements of this section, the applicant must submit a remedial report within 90 days after the in-use compliance report is submitted. The remedial report must include:

(o) The Executive Officer shall evaluate the remedial report, annual warranty report, and all other relevant information to determine if the diesel emission control strategy family satisfies the in-use compliance requirements. The Executive Officer may request additional information from the applicant. Based on this review, the Executive Officer may lower the verification level or revoke the verification status of a verified diesel emission control strategy family. The Executive Officer may also lower the verification level or revoke the verification status of a verified diesel emission control strategy family, if the applicant does not conduct in-use compliance testing or fails to adhere to the recall provisions in accordance with this section, or if the Executive Officer conducts in-use compliance testing in accordance with this section (including alternative testing) and the diesel emission control strategy family does not pass the standards in this section.

(p) Recall Provisions. If the Executive Officer determines after a review of an applicant's in-use compliance report, remedial report, warranty report, enforcement testing results, or any other information that a diesel emission control strategy family: has the potential to experience catastrophic failure or other safety related failure, fails to meet the conditions for passing in-use compliance testing as defined in section 2709(m), has valid warranty claims in excess of four percent as defined in section 2707(c), or a substantial number of units experience a failure of an operational feature, the Executive Officer may require a recall. In the event of a recall the Executive Officer shall provide notification to the applicant that includes a description of the nature of the failure or warrantable condition, the factual basis for the determination, and shall designate a date at least 60 days from the date of receipt of such notification by which the applicant shall submit a recall plan for review and approval to address the failures or warrantable condition. Recalls must address all diesel emission control strategies within a specific diesel emission control strategy family and may include all diesel emission control strategies sold as California verified. Each recall plan must be approved by the Executive Officer in writing.

(q) Recall Plan. At a minimum, an applicant's recall plan shall contain the following information unless otherwise specified in the notification:

(r) Reporting Requirements. Unless otherwise specified by the Executive Officer, the manufacturer shall report on the progress of a recall campaign by submitting subsequent reports for six consecutive quarters commencing with the quarter after the recall campaign begins. Such reports shall be submitted no later than 25 days after the close of each calendar quarter to:

(s) The Executive Officer may lower the verification level or revoke the verification status of a verified diesel emission control strategy family if the applicant fails to observe the requirements of sections 2706, 2707, or 2709. The Executive Officer must allow the applicant an opportunity to address the possible lowering or revocation of the verification level in a remedial report to the Executive Officer and the Executive Officer may make this determination based on all relevant information. In addition, an applicant that fails to submit a recall plan as requested by the Executive Officer or to complete the requirements of an approved recall plan, including the reporting requirements, may be subject to civil penalties as specified in state law and regulations, including, but not limited to, Health and Safety Code Sections 39600, 39660, and 39674.