(a) A portable fuel container or spout or both portable fuel container and spout may be exempted from one or more of the requirements of Subpart 239-3 of this Part if a manufacturer demonstrates by clear and convincing evidence that, due to the product's design, delivery system, or other factors, the use of the product will result in cumulative VOC emissions below the highest emitting representative spill-proof system or representative spill-proof spout in its product category as determined from applicable testing.

1. (1) For the purposes of this section, representative spill-proof system or a representative spill-proof spout means a portable fuel container or spout or both portable fuel container and spout which, at the time of application in paragraph (2) of this subdivision, meets the performance standards specified in Subpart 239-3 of this Part.
2. (2) A manufacturer (applicant) must apply in writing to the director, Division of Air Resources, Department of Environmental Conservation for an innovative product exemption. The application must include the supporting documentation that quantifies the emissions from the innovative product, including the actual physical test methods used to generate the data. In addition, the applicant must provide any information necessary to establish enforceable conditions for granting the exemption. All information including proprietary data submitted by a manufacturer pursuant to this Section shall be handled in accordance with the procedures specified in Part 616 of this Title.
3. (3) Within 30 days of receipt of the exemption application the department shall determine whether an application is complete.
4. (4) Within 90 days after an application has been deemed complete, the department will determine whether, under what conditions, and to what extent, an exemption from the requirements of Subpart 239-3 of this Part will be permitted. The applicant and the department may mutually agree to a longer time period for reaching a decision. An applicant may submit additional supporting documentation before a decision has been reached. The department will notify the applicant of the decision in writing and specify such terms and conditions that are necessary to ensure that emissions from use of the product will meet the emissions reductions specified in this subdivision, and that such emissions reductions can be enforced.
5. (5) In granting an innovative product exemption for a portable fuel container or spout or both portable fuel container and spout, the State of New York shall specify the test methods for determining conformance to the conditions established. The test methods may include criteria for reproducibility, accuracy, and sampling and laboratory procedures.
6. (6) For any portable fuel container or spout or both portable fuel container and spout for which an innovative product exemption has been granted pursuant to this Subpart, the manufacturer shall notify the department in writing at least 30 days before the manufacturer changes a product's design, delivery system, or other factors that may effect the VOC emissions during recommended usage. The manufacturer must also notify the department within 30 days after the manufacturer learns of any information that would alter the emissions estimates submitted to the department in support of the exemption application.
7. (7) If the performance standards specified in Subpart 239-3 of this Part are amended for a product category, all innovative product exemptions granted for products in the product category, except as provided in paragraph (8) of this subdivision, have no force and effect as of the effective date of the amended performance standards.
8. (8) If the department believes that a portable fuel container, spout, or both portable fuel container and spout for which an exemption has been granted no longer meets the criteria for an innovative product specified in this subdivision, the department may hold a public hearing in accordance with the procedures specified in Part 621 of this Title, to determine if the exemption should be modified or revoked.