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Subpart 210-4: In-Use Testing and Recall

(Statutory authority: Environmental Conservation Law §§ 1-0101, 3-0301, 19-0103, 19-0105, 19-0301, 19-0303, 19-0306-a, 71-2103 and 71-2105)

[Filed 7/9/03. Effective 30 days after filing.]

[This is page 1 of 1 of this Subpart. A complete list of Subparts in this regulation appears in the Chapter 3 contents page. A list of sections in this Subpart appears below.]

For administrative information about this posting, contact: Division of Air Resources. The Bureau of Mobile Sources and Technology Development at (518) 402-8292 is the contact for technical questions pertaining to this rule.

Contents:

Sec.

§210-4.1 In-use testing

(a) All manufacturers of personal watercraft engines subject to this Part, certified for sale in California and produced and delivered for sale in New York shall conduct in-use testing as required by California Code of Regulations, title 13, section 2444.1 (see Table 1, section 200.9 of this Title). The department shall accept the emissions data collected in accordance with California Code of Regulations, title 13, section 2444.1(b) (see Table 1, section 200.9 of this Title).

(b) The department, upon notice to the engine manufacturers, may prescribe that a New York specific in-use testing program be conducted in accordance with California Code of Regulations, title 13, section 2444.1(b) (see Table 1, section 200.9 of this Title).

(c) Manufacturers shall submit to the department, upon request, records from the in-use testing program, in accordance with California Code of Regulations, title 13, section 2444.1(c) (see Table 1, section 200.9 of this Title), within three months of completion of the in-use testing program.

§210-4.2 Recall

(a) If the results of the in-use emission tests indicate that the average emissions of the test engines for any regulated pollutant exceed the applicable emission standards specified in title 13, California Code of Regulations, section 2442 (see Table 1, section 200.9 of this Title), the entire engine population so represented shall be deemed to exceed the standards. The department shall notify the engine manufacturer of the test results and upon receipt of the notification, the engine manufacturer has 45 days to submit a plan, to the department, to make up all excess emissions resulting from in-use testing noncompliance in accordance with subdivision (b) of this section. If excess emissions cannot be made up in accordance with subdivision (b) of this section, the engine manufacturer must implement a voluntary recall plan in accordance with the applicable portions of subdivisions (c) and (d) of this section. If no excess emissions cannot be made up in accordance with subdivision (b) of this section and the engine manufacturer does not implement a voluntary recall plan, the commissioner may prescribe the implementation of an ordered recall pursuant to the applicable portions of paragraph (d)(2).

(b) All excess emissions resulting from in-use noncompliance with the California standard must be made up in the model year following the model year in which the notification of noncompliance is received. In-use noncompliance may not be remedied through implementation of the Federal in-use credit program described in title 40, Code of Federal Regulations, part 91, Subpart N (October 4, 1996) (see Table 1, section 200.9 of this Title). As an alternative to recall and with prior approval from the department and the executive officer of CARB where appropriate, the engine manufacturer may make up the excess emissions by any one or combination of the following options:

(1) recertification of the noncompliant engine family to a lower emission level (or higher FEL) that makes up for the noncompliance, while maintaining compliance on a corporate average basis;

(2) implementation of a running change and/or field fix on the noncompliant engine family;

(3) implementation of market-based incentives, to be approved by the commissioner, to make up the noncompliance; or

(4) payment of a noncompliance penalty to be determined by the department on a per engine basis as provided by article 71 of the Environmental Conservation Law.

(c) Voluntary Emission Recalls

(1) When an engine manufacturer initiates a voluntary emission recall campaign, the department shall be notified of the recall at least 30 days before owner notification is to begin. The engine manufacturer shall also submit a voluntary recall plan for approval, as described in subdivision (d) of this section. A voluntary recall plan shall be deemed approved by the department within 30 days after receipt of the recall plan unless objected to in the interim.

(2) (i) When any engine manufacturer, based on enforcement test results or any other information provided to or required by the department proposes to initiate a voluntary emission recall program, the engine manufacturer shall submit for approval by the department an emission recall plan as described in subdivision (d) of this section. The plan shall be submitted within 45 days following the receipt of a notification from the department that enforcement test results or other information demonstrate an engine noncompliance.

(ii) The department shall approve the recall plan in writing if it contains the information specified in subdivision (d) of this section where specified and is designed to notify the engine/watercraft owner and correct the noncompliance in an expeditious manner. Notification of engine/watercraft owners and the implementation of recall repairs shall commence no later than the schedule specified under subparagraphs (d)(1)(iii) and (iv) of this section, respectively, unless the engine manufacturer can show good cause for the department to extend the deadline. If the plan does not contain the provisions of subdivision (d) of this section, the department shall disapprove the plan in writing and require revisions where deemed necessary. The engine manufacturer may contest such a disapproval by requesting a hearing pursuant to section 622 of the State Administration Procedures Act. If no request for a hearing is made or the hearing upholds the disapproval, the engine manufacturer shall incorporate all requested revisions to the plan and begin implementation of the recall plan within 60 days of receipt of the disapproval.

(iii) The engine manufacturer may also request a public hearing pursuant to the procedures set forth in section 622 of the State Administration Procedures Act to contest the finding of nonconformity and the need for an ordered recall. If such a hearing occurs and the nonconformity is confirmed therefrom, the engine manufacturer shall submit the recall plan required by paragraph (d)(2) of this section within 30 days after receipt of the hearing decision unless an extension is granted by the department.

(d) Voluntary and Ordered Recall Plans

(1) The recall plan for voluntary and ordered recalls must be submitted to the commissioner for review and must contain the following information unless otherwise specified:

(i) a description of each class or category of engines recalled, including the number of engines to be recalled, the model year, and such other information as may be required to identify the engines recalled;

(ii) a description of the specific modifications, alterations, repairs, corrections, adjustments or other changes to be made to correct the engines affected by the emission-related defect;

(iii) a description of the method by which the engine manufacturer will notify engine/watercraft owners;

(iv) a description of the procedure to be followed by engine/watercraft owners to correct the nonconformity. This may include the date on or after which the engine/watercraft owner can have the nonconformity corrected, the time reasonably necessary to perform the labor to correct the nonconformity and the designation of facilities at which the nonconformity can be remedied;

(v) a description of the class of persons other than dealers and authorized warranty agents of the engine manufacturer who will remedy the defect;

(vi) a description of the system by which the engine manufacturer will assure that an adequate supply of parts is available to perform the repair under the plan, including the date by which an adequate supply of parts will be available to initiate the repair campaign, and the method to be used to assure the supply remains both adequate and responsive to engine/watercraft owner demand;

(vii) a copy of the letter of notification to be sent to engine/watercraft owners; and

(viii) a copy of all necessary instructions to be sent to those persons who are to perform the repair.

(2) For an ordered recall, the recall plan shall include the information required for voluntary recall plans as specified in paragraph (1) of this subdivision. Additionally, it shall include the following:

(i) a plan describing how the maximum feasible capture rate will be achieved for recalls based on either the exceedance of emission standard or on the failure of an emission-related component;

(ii) the plan shall also include a schedule for implementing actions to be taken including identified increments of progress towards implementation and deadlines for completion of each increment. If, after good faith efforts, the engine manufacturer cannot reach the maximum feasible capture rate by the applicable deadline, the engine manufacturer must propose mitigation efforts to be approved by the commissioner that will offset the emissions of the unrepaired engines; and

(iii) the engine manufacturer must not condition repair of the noncomplying engine/watercraft on the proper maintenance or use of the engine except for compelling reasons approved by the commissioner. The engine manufacturer, however, is not obligated to repair a component which has been removed or modified.

(3) Recordkeeping and reporting requirements.

(i) The engine manufacturer shall report on the progress of the voluntary or ordered recall program by submitting a report one year from the date owner notification begins and a final report an additional year later. Such reports shall be submitted to the Chief, Bureau of Mobile Sources, Division of Air Resources. For each class of engine subject to the recall program, the yearly report shall contain:

(a) engine family and emission recall campaign number designated by the engine manufacturer;

(b) date engine/watercraft owner notification was begun, and date completed;

(c) number of engines involved in the voluntary or ordered recall campaign;

(d) number of engines known or estimated to be affected by the nonconformity and an explanation of how this number was determined;

(e) number of engines inspected pursuant to the voluntary or ordered recall plan;

(f) number of inspected engines found to be affected by the nonconformity;

(g) number of engines receiving repair under the recall plan and a listing of these engines' engine identification numbers;

(h) number of engines determined to be ineligible for recall action due to removed or modified parts;

(i) a copy of any service bulletins transmitted to dealers or other authorized repair facilities which pertain to the nonconformity to be corrected and that have not previously been reported; and

(j) a copy of all communications transmitted to engine/watercraft owners that relate to the nonconformity and that have not previously been submitted.

(ii) If the engine manufacturer determines that any of the information submitted pursuant to subparagraph (i) of this paragraph has changed or was incorrect, revised information and an explanation must be submitted. Responses to clauses (i)(f), (g), (h), (i) and (j) of this paragraph shall be cumulative totals.

(iii) The engine manufacturer shall maintain the names and addresses of engine/watercraft owners:

(a) to whom notification was given;

(b) whose engines were repaired or inspected under the recall plan; and

(c) whose engines were determined not to qualify for repair due to removed or modified components.

(iv) All reports shall be maintained for not less than three years beyond the useful life of the engines and shall be made available to authorized personnel of the department upon request.

(v) Penalties. Under an ordered recall, failure of the engine manufacturer to notify the engine/watercraft owners and repair the engines in the manner specified in the recall plan constitutes a violation of Environmental Conservation Law and subjects the engine manufacturer to penalties pursuant to article 71 of the Environmental Conservation Law.