(a) The MOD Director may notify an aftermarket part manufacturer that the Agency has made a preliminary determination that one or more parts should be decertified.
(1) Such a preliminary determination may be made if there is reason to believe that the part manufactured has failed to comply with §§ 85.2112 through 85.2122. Information upon which such a determination will be made includes but is not limited to the following.
(i) Tests required to be performed to demonstrate compliance of the part with the applicable Emission-Critical Parameters
(A) Were not performed on the part(s), or
(B) Were insufficient to demonstrate compliance;
(ii) The part was certified on the basis of emission tests, and
(A) The procedures used in such tests were not in substantial compliance with a portion or portions of the Federal Test Procedure which were not waived pursuant to § 85.2114(d) ;
(B) The emission results were not in compliance with the requirements of § 85.2114(d); or
(C) The procedures used for part aging for durability demonstration were not in substantial compliance with the durability cycle required by § 85.2114.
(iii) Use of the certified part is causing vehicle emissions to exceed emission requirements for any regulated pollutant;
(iv) Use of the certified part causes or contributes to an unreasonable risk to public health, welfare or safety or severely degrades drivability operation or function;
(v) The part has been modified in a manner requiring recertification pursuant to § 85.2118; or
(vi) The manufacturer of such parts has not established, maintained or retained the records required pursuant to § 85.2120 or fails to make the records available to the MOD Director upon written request pursuant to § 85.2120.
(vii) Documentation required to support the type of durability demonstration used for a part under § 85.2114 :
(A) Were not submitted for the part, or
(B) Were insufficient to justify a claim of durability exemption status.
(viii) The aftermarket part manufacturer failed to pay a lost arbitration settlement within 30 days of the arbitrator's decision or within 30 days after completion of judicial review, if any.
(2) Notice of a preliminary determination to decertify shall contain:
(i) A description of the noncomplying part(s);
(ii) The basis for the MOD Director's preliminary decision; and
(iii) The date by which the manufacturer must
(A) Terminate the sale of the part as a certified part, or
(B) Make the necessary change (if so recommended by the Agency), and
(C) Request an opportunity in writing to dispute the allegations of the preliminary decertification.
(b) If the aftermarket part manufacturer requests an opportunity to respond to the preliminary determination, the manufacturer and other parties interested in the MOD Director's decision whether to decertify a part may, within 15 days of the date of the request, submit written presentations, including the relevant information and data, to the MOD Director. The MOD Director, in his or her discretion, may provide an opportunity for oral presentations.
(1) Any interested party may request additional time to respond to the information submitted by the part manufacturer. The MOD Director upon a showing of good cause by the interested party may grant an extension of time to reply up to 30 days.
(2) The part manufacturer may have an extension of up to 30 days to reply to information submitted by interested parties. Notification of intent to reply shall be submitted to the MOD Director within 10 days of the date information from interested parties is submitted to the MOD Director.
(c) If a part manufacturer has disputed the allegations of the preliminary decisions, the MOD Director shall, after reviewing any additional information, notify the aftermarket part manufacturer of his or her decision whether the part may continue to be sold as certified. This notification shall include an explanation upon which the decision was made and the effective date for decertification, where appropriate.
(d) Within 20 days from the date of a decision made pursuant to paragraph (c) of this section, any adversely affected party may appeal the decision to the Office Director.
(1) A petition for appeal to the Office Director must state all of the reasons why the decision of the MOD Director should be reversed.
(2) The Office Director may, in his or her discretion, allow additional oral or written testimony.
(3) If no appeal is filed with the Office Director within the permitted time period, the decision of the MOD Director shall be final.
(e) If a final decision is made to decertify a part under paragraph (d) of this section, the manufacturer of such part shall notify his immediate customers (other than retail customers) that, as of the date of the final determination, the part in question has been decertified. The part manufacturer shall offer to replace decertified parts in the customer's inventory with certified replacement parts or, if unable to do so, shall at the customer's request repurchase such inventory at a reasonable price.
(f) Notwithstanding the requirements of paragraph (e) of this section, a part purchased by a vehicle owner as certified, shall be considered certified pursuant to this subpart.
[45 FR 78462, Nov. 25, 1980, as amended at 54 FR 32593, Aug. 8, 1989]
Title 40 published on 2012-07-01
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