In order to ensure that pollutant emissions from heavy-duty diesel engines remain within specified limits over all frequently-experienced combinations of load and speed, the EPA recently instituted the Not-to-Exceed standard (NTE). The NTE specifies a certain range under the torque curve (the NTE zone) in which specific regulated emissions may not exceed their limits.

The testing procedure of the NTE involves driving of any type that might occur within the control area of the NTE. This includes operation under varying ambient conditions or under transient conditions, as well as under steady state conditions. The analyzer averages emission readings over a period of at least 30 seconds and then compares them to established NTE limits. If you need to draft an NTE clause for an agreement or a contract use the following as a guide.

1. Read about the Environmental Protection Agency's (EPA) NTE emissions standards for diesel engines.

2. Draft NTE clauses for construction agreements.

3. Receive contract management training and learn how to write and understand NTE clauses.

Action Steps
The best contacts and resources to help you get it done

Learn about the background and specifics of EPA's NTE emissions standards for diesel engines

The NTE standards were set up by the EPA due to a consent decree between the EPA and a number of large diesel engine makers. The manufacturers were accused of violating the Clean Air Act by installing devices on trucks and other diesel operated equipment that defeated emission control systems. The engine makers settled out of court, paid hefty fines and had to start following the new NTE guidelines.

I recommend: DieselNet gives the background on the NTE and provides details about the standards as they relate to different kinds of diesel vehicles. The Environmental Protection Agency provides overview and test result data on emissions testing performed in their first-ever marathon emissions testing project.

Draft a not-to-exceed agreement for a construction project

Often not-to-exceed agreements are created for municipal construction projects in order to ensure that costs will not rise beyond a certain limit. Building and improvement projects can often rise significantly beyond initial estimates and an NTE agreement helps maintain control over costs. These links will give you an idea of how to create not-to-exceed contract instruments.

I recommend: John Wayne Airport (JWA) reached NTE agreements in 1985 and 2003 with Orange County and the residents on the nature and extent of upgrades to the airport. Its website gives an overview of the agreements. The State of Tennessee has a standardized agreement form for construction design consulting. This form makes it unnecessary to create not-to-exceed agreements for planned projects.

Get training in contract management so you can write not-to-exceed contracts

Not-to-exceed management of business agreements is essential to keep costs in check. It is highly recommended to get contract management training so you can create Not to Exceed agreement documents that are legally binding and protect your company's interests. It will also come in handy if a colleague asks you for not-to-exceed advice.

I recommend: ESI International offers contract management training, in the classroom and online, that will make you a not-to-exceed expert, as well as an expert on all other aspects of business contract creation. The Master Builders Association of Victoria provides training on various areas of construction management, including contract management and obligations. This training covers how to write and interpret not-to-exceed information in contracts.

Tips & Tactics

Helpful advice for making the most of this Guide

• •  Lessen the incentive to challenge an NTE clause by including attorneys' fees within the damages limit.