Section 2439 - Procedures for in-Use Engine Recalls for Large off-Road Spark-Ignition Engines with an Engine Displacement Greater than 1.0 Liter(a) The recall procedures in this section apply as set forth in Title 13, California Code of Regulations, Sections 2433 and 2438.(b) Voluntary Emissions Recall (1) When any manufacturer initiates a voluntary emission recall, the manufacturer shall notify the Executive Officer of the recall at least 30 days before owner notification is to begin. The manufacturer shall also submit to the Executive Officer a voluntary recall plan for approval, as prescribed in the following: (A)(i) a description of each class or category of engines to recall, including the number of engines to be recalled, the engine family or a sub-group thereof, the model year, and such other information as may be required to identify the engines:(ii) a description of the specific modifications, alterations, repairs, corrections, adjustments, or other changes to be made to correct the engines affected by the nonconformity;(iii) a description of the method by which the manufacturer will notify engine owners including copies of any letters of notification to be sent to engine owners;(iv) a description of the proper maintenance or use, if any, upon which the manufacturer conditions eligibility for repair under the recall plan, and a description of the proof to be required of an engine owner to demonstrate compliance with any such conditions;(v) a description of the procedure to be followed by engine owners to obtain correction of the nonconformity. This shall include designation of the date on or after which the owner can have the nonconformity remedied, the time reasonably necessary to perform the labor to remedy the nonconformity, and the designation of facilities at which the nonconformity can be remedied;(vi) a description of the class of persons other than dealers and authorized warranty agents of the manufacturer who will remedy the nonconformity;(vii) a description of the system by which the manufacturer will assure that an adequate supply of parts is available to perform the repair under the plan; or(B)(i) a description of each class or category of engines subject to recall, including the number of engines subject to being recalled, the engine family or a sub-group thereof, the model year, and such other information as may be required to identify the engines;(ii) a description of the method by which the manufacturer will use the in-use emissions credit, averaging, banking, and trading program, as described in Section 2438(e), to remedy the nonconformity.(2) Voluntary Recall Progress Report. A manufacturer who initiates a voluntary emission recall campaign pursuant to paragraph (b)(1)(A) of this section must submit at least one report on the progress of the recall campaign. This report shall be submitted to the Executive Officer by the end of the fifth quarter, as defined in Section 2112(j), Chapter 2, Title 13 of the California Code of Regulations, following the quarter in which the notification of equipment or engine owners was initiated, and include the following information: (A) Engine family involved and recall campaign number as designated by the manufacturer.(B) Date owner notification was begun, and date completed.(C) Number of equipment or engines involved in the recall campaign.(D) Number of equipment or engines known or estimated to be affected by the nonconformity.(E) Number of equipment or engines inspected pursuant to the recall plan and found to be affected by the nonconformity.(F) Number of inspected equipment or engines.(G) Number of equipment or engines receiving repair under the recall plan.(H) Number of equipment or engines determined to be unavailable for inspection or repair under the recall plan due to exportation, theft, scrapping, or for other reasons (specify).(I) Number of equipment or engines determined to be ineligible for recall action due to removed or altered components.(J) A listing of the identification numbers of equipment or engines subject to recall but for whose repair the manufacturer has not been invoiced. This listing shall be supplied in a standardized computer data storage device to be specified by the Executive Officer.
(K) Any service bulletins transmitted to dealers which relate to the nonconformity and which have not previously been submitted.(L) All communications transmitted to equipment or engine owners which relate to the nonconformity and which have not previously been submitted.(3) The information gathered by the manufacturer to compile the reports must be retained for not less than seven years from the date of the manufacture of the engines and must be made available to the Executive Officer or designee of the Executive Officer upon request.(4) A voluntary recall plan shall be deemed approved unless disapproved by the Executive Officer within 20 business days after receipt of the recall plan.(5) Under a voluntary recall program, initiated and conducted by a manufacturer or its agent or representative as a result of in-use enforcement testing or other evidence of noncompliance provided or required by the Board to remedy any nonconformity, the capture rate shall be at a minimum 55 percent of the equipment or engine within the subject engine family or a sub-group thereof. The manufacturer shall comply with the capture rate by the end of the fifth quarter, as defined in Section 2112(j), Chapter 2, Title 13 of the California Code of Regulations, following the quarter in which the notification of equipment or engine owners was initiated. If the manufacturer cannot correct the percentage of equipment specified in the plan by the applicable deadlines, the manufacturer must use good faith efforts through other measures, subject to approval by the Executive Officer, to bring the engine family into compliance with the standards. If the Executive Officer does not approve the manufacturer's efforts, the manufacturer shall propose mitigation measures to offset the emissions of the unrepaired equipment within 45 days from the last report filed pursuant to paragraph (b)(2), above. The Executive Officer shall approve such measures provided that: (A) The emission reductions from the recalled and repaired equipment or engines and the mitigation measures are equivalent to achieving the capture rate; and(B) The emission reductions from the mitigation measures are real and verifiable; and(C) The mitigation measures are implemented in a timely manner.(c) Initiation and Notification of Ordered Emission-Related Recalls.(1) A manufacturer shall be notified whenever the Executive Officer has determined, based on production-line test results or in-use test results, enforcement testing results, or any other information, that a substantial number of a class or category of equipment or engines produced by that manufacturer, although properly maintained and used, contain a failure in an emission-related component which, if uncorrected, may result in the equipments' or engines' failure to meet applicable standards over their useful lives; or whenever a class or category of equipment or engines within their useful lives, on average, do not conform to the emission standards prescribed pursuant to Part 5 (commencing with Section 43000) of Division 26 of the Health and Safety Code, or any regulation adopted by the state board pursuant thereto, other than an emissions standard applied to new engines to determine "certification" as specified in Chapter 9, as applicable to the model year of such equipment or engines.(2) It shall be presumed for purposes of this section that an emission-related failure will result in the exceedance of emission standards unless the manufacturer presents evidence in accordance with the procedures set forth in subsections (A), (B), and (C) which demonstrates to the satisfaction of the Executive Officer that the failure will not result in exceedance of emission standards within the useful life of the equipment or engine. (A) In order to overcome the presumption of noncompliance set forth in paragraph (c)(2) above, the average emissions of the equipment and engines with the failed emission-related component must comply with applicable emission standards. A manufacturer may demonstrate compliance with the emission standards by following the procedures set forth in either paragraphs (c)(2)(B) or (c)(2)(C) of this section.(B) A manufacturer may test properly maintained in-use equipment with the failed emission-related component pursuant to the applicable certification emission tests specified in Section 2433, Title 13 of the California Code of Regulations. The emissions shall be projected to the end of the equipment's or engine's useful life using in-use deterioration factors. The in-use deterioration factors shall be chosen by the manufacturer from among the following: (i) "Assigned" in-use deterioration factors provided by the ARB on a manufacturer's conditions; request and based on ARB in-use testing; or,(ii) deterioration factors generated during certification, provided adjustments are made to account for equipment aging, customer hour usage-accumulation practices, type of failed component, component failure mode, effect of the failure on other emission-control components, commercial fuel and lubricant quality, and any other factor which may affect the equipment's or engine's operating or,(iii) subject to approval by the Executive Officer, a manufacturer-generated deterioration factor. Such deterioration factor must based on in-use data generated from certification emission tests performed on properly maintained and used equipment in accordance with the procedures set forth in Section 2433 of Title 13 of the California Code of Regulations, and the equipment from which it was derived must be representative of the in-use fleet with regard to emissions performance and equipped with similar emission control technology as equipment with the failed component.(C) In lieu of the equipment or engine emission testing described in subsection (B) above and subject to approval by the Executive Officer, a manufacturer may perform an engineering analysis, laboratory testing or bench testing, when appropriate, to demonstrate the effect of the failure.(3) The notification shall include a description of each class or category of equipment or engines encompassed by the determination of nonconformity, shall set forth the factual basis for the determination and shall designate a date at least 45 business days from the date of receipt of such notification by which the manufacturer shall submit a plan to remedy the nonconformity.(4) Availability of Public Hearing. (A) The manufacturer may request a public hearing pursuant to the procedures set forth in Subchapter 1.25, Division 3, Chapter 1, Title 17, California Code of Regulations to contest the finding of nonconformity and the necessity for or the scope of any ordered corrective action.(B) If a manufacturer requests a public hearing pursuant to subsection (A) above, and if the Executive Officer's determination of nonconformity is confirmed at the hearing, the manufacturer shall submit the recall plan required by Section 2439 within 30 days after receipt of the Board's decision.(5) Ordered Recall Plan. (A) Unless a public hearing is requested by the manufacturer, a recall plan shall be submitted to the Chief, Mobile Source Operations Division, 9528 Telstar Avenue, El Monte, CA 91731, within the time limit specified in the notification. The Executive Officer may grant the manufacturer an extension upon good cause shown.(B) The recall plan shall contain the following:(i) A description of each class or category of equipment or engine to be recalled, including the engine family or sub-group thereof, the model-year, the make, the model, and such other information as may be required to identify the equipment or engines to be recalled.(ii) A description of the nonconformity and the specific modifications, alterations, repairs, corrections, adjustments or other changes to be made to bring the equipment or engines into conformity including a brief summary of the data and technical studies which support the manufacturer's decision regarding the specific corrections to be made.(iii) A description of the method by which the manufacturer will determine the names and addresses of equipment or engine owners and the method by which they will be notified.(iv) A description of the procedure to be followed by equipment or engine owners to obtain correction of the nonconformity including the date on or after which the owner can have the nonconformity remedied, the time reasonably necessary to perform the labor required to correct the nonconformity, and the designation of facilities at which the nonconformity can be remedied. The repair shall be completed within a reasonable time designated by the Executive Officer from the date the owner delivers the equipment or engine for repair. This requirement becomes applicable on the date designated by the manufacturer as the date on or after which the owner can have the nonconformity remedied.(v) If some or all of the nonconforming equipment or engines are to be remedied by persons other than dealers or authorized warranty agents of the manufacturer, a description of such class of persons and a statement indicating that the participating members of the class will be properly equipped to perform such remedial action.(vi) The capture rate required for each class or category of equipment or engine to be recalled. Under recalls based on exceedance of emission standards, the capture rate shall be at a minimum 80 percent of the equipment or engine within the subject engine family.(vii) The plan may specify the maximum incentives (such as a free tune-up or specified quantity of free fuel), if any, the manufacturer will offer to induce equipment or engine owners to present their equipment for repair, as evidence that the manufacturer has made a good faith effort to repair the percentage of equipment or engines specified in the plan. The plan shall include a schedule for implementing actions to be taken including identified increments of progress towards implementation and deadlines for completing each such increment.(viii) A copy of the letter of notification to be sent to equipment or engine owners.(ix) A description of the system by which the manufacturer will assure that an adequate supply of parts will be available to perform the repair under the recall 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 owner demand.(x) A copy of all necessary instructions to be sent to those persons who are to perform the repair under the recall plan.(xi) A description of the impact of the proposed changes on fuel economy, operation, performance and safety of each class or category of equipment or engines to be recalled and a brief summary of the data, technical studies, or engineering evaluations which support these descriptions.(xii) A description of the impact of the proposed changes on the average emissions of the equipment or engines to be recalled based on noncompliance described in subsection (c)(1), above. The description shall contain the following:(1.) Average noncompliance emission levels.(2.) Average emission reduction or increase per pollutant resulting from the recall repair. These averages shall be verified by the manufacturer by applying the proposed recall repairs to two or more in-use equipment or engines representing the average noncompliance emission levels. Only those equipment or engines with baseline emission levels within 25 percent of the average emission levels of noncomplying pollutant(s) established under the in-use enforcement test program may be used by manufacturers to verify proposed recall repairs. The Executive Officer may allow the use of equipment or engines exceeding these upper averaging noncompliance limits if none which meet the limits can be reasonably procured.(3.) An estimate of the average emission level per pollutant for a class or category of equipment or engines after repair as corrected by the required capture rate. The estimated average emission level shall comply with the applicable emission standards. If the average emissions levels achieved by applying the average emission reduction per equipment or engine after repair and the estimated capture rate, do not achieve compliance with the emissions standards, a manufacturer shall propose other measures to achieve average emissions compliance.(xiii) Any other information, reports, or data which the Executive Officer may reasonably determine to be necessary to evaluate the recall plan.(6) Approval and Implementation of Recall Plan. (A) If the Executive Officer finds that the recall plan is designed effectively to correct the nonconformity and complies with the provisions of this Section, he or she will so notify the manufacturer in writing. Upon receipt of the approval notice from the Executive Officer, the manufacturer shall commence implementation of the approved plan. Notification of equipment or engine owners and the implementation of recall repairs shall commence within 45 days of the receipt of notice unless the manufacturer can show good cause for the Executive Officer to extend the deadline.(B) If the Executive Officer does not approve the recall plan or the mitigation measures provided in this Section as submitted, the Executive Officer shall order modification of the plan or mitigation measures with such changes and additions as he or she determines to be necessary. The Executive Officer shall notify the manufacturer in writing of the disapproval and the reasons for the disapproval.(C) The manufacturer may contest the Executive Officer's disapproval by requesting a public hearing pursuant to the procedures set forth in Subchapter 1.25, Division 3, Chapter 1, Title 17, California Code of Regulations. As a result of the hearing, the Board may affirm, overturn or modify the Executive Officer's action. In its decision, affirming or modifying, the Board shall specify the date by which the manufacturer shall commence notifying equipment or engine owners and implementing the required recall repairs.(D) If no public hearing is requested in accordance with (C) above, the manufacturer shall incorporate the changes and additions required by the Executive Officer and shall commence notifying equipment or engine owners and implementing the required recall repairs within 60 days of the manufacturer's receipt of the Executive Officer's disapproval.(7) Notification of Owners.(A) Notification to equipment or engine owners shall be made by first class mail or by such other means as approved by the Executive Officer provided, that for good cause, the Executive Officer may require the use of certified mail to ensure an effective notification.(B) The manufacturer shall use all reasonable means necessary to locate equipment or engine owners provided, that for good cause, the Executive Officer may require the manufacturer to use motor equipment registration lists, as applicable, available from State or commercial sources to obtain the names and addresses of equipment or engine owners to ensure effective notification.(C) The Executive Officer may require subsequent notification by the manufacturer to equipment or engine owners by first class mail or other reasonable means provided, that for good cause, the Executive Officer may require the use of certified mail to ensure effective notification.(D) The notification of equipment or engine owners shall contain the following: (i) The statement: "The California Air Resources Board has determined that your (equipment or engine) (is or may be) releasing air pollutants which exceed (California or California and Federal) standards. These standards were established to protect your health and welfare from the dangers of air pollution."(ii) A statement that the nonconformity of any such equipment or engines will be remedied at the expense of the manufacturer.(iii) A statement that eligibility may not be denied solely on the basis that the equipment or engine owner used parts not manufactured by the original equipment manufacturer, or had repairs performed by outlets other than the equipment or engine manufacturer's franchised dealers.(iv) A clear description of the components which will be affected by the recall action and a general statement of the measures to be taken to correct the nonconformity.(vi) A description of the adverse effects, if any, that an uncorrected nonconformity would have on the performance, fuel economy, or driveability of the equipment or engine or to the function of other engine components.(vii) A description of the procedure which the equipment or engine owner should follow to obtain correction of the nonconformity including the date on or after which the owner can have the nonconformity remedied, the time reasonably necessary to correct the nonconformity, and a designation of the facilities located in California at which the nonconformity can be remedied.(viii) After the effective date of the recall enforcement program referred to above, a statement that a certificate showing that the equipment has been repaired under the recall program shall be issued by the service facilities and that such a certificate may be required as a condition of equipment registration or operation, as applicable.(ix) A card to be used by a equipment or engine owner in the event the equipment or engine to be recalled has been sold. Such card should be addressed to the manufacturer, have postage paid, and shall provide a space in which the owner may indicate the name and address of the person to whom the equipment or engine was sold.(x) The statement: "In order to ensure your full protection under the emission warranty made applicable to your (equipment or engine) by State or Federal law, and your right to participate in future recalls, it is recommended that you have your (equipment or engine) serviced as soon as possible. Failure to do so could be determined to be a lack of proper maintenance of your (equipment or engine)".(xi) A telephone number provided by the manufacturer, which may be used to report difficulty in obtaining recall repairs.(xii) The manufacturer shall not condition eligibility for repair on the proper maintenance or use of the equipment except for strong or compelling reasons and with approval of the Executive Officer; however, the manufacturer shall not be obligated to repair a component which has been removed or altered so that the recall action cannot be performed without additional cost.(xiii) No notice sent pursuant to Section (D), nor any other communication sent to equipment or engine owners or dealers shall contain any statement, express or implied, that the nonconformity does not exist or will not degrade air quality.(xiv) The manufacturer shall be informed of any other requirements pertaining to the notification under this section which the Executive Officer has determined are reasonable and necessary to ensure the effectiveness of the recall campaign.(8) Repair Label. (A) The manufacturer shall require those who perform the repair under the recall plan to affix a label to each equipment or engine repaired or, when required, inspected under the recall plan.(B) The label shall be placed in a location as approved by the Executive Officer and shall be fabricated of a material suitable for such location and which is not readily removable.(C) The label shall contain the recall campaign number and a code designating the facility at which the repair, inspection for repair, was performed.(9) Proof of Correction Certificate. The manufacturer shall require those who perform the recall repair to provide the owner of each equipment or engine repaired with a certificate, through a protocol and in a format prescribed by the Executive Officer, which indicates that the noncomplying equipment or engine has been corrected under the recall program. This requirement shall become effective and applicable upon the effective date of the recall enforcement program referred to in this section, above.(10) Capture Rates and Alternative Measures. The manufacturer shall comply with the capture rate specified in the recall plan as determined pursuant to this Section, above, by the end of the fifth quarter, as defined in Section 2112(j), Chapter 2, Title 13 of the California Code of Regulations, following the quarter in which the notification of equipment or engine owners was initiated. If, after good faith efforts, the manufacturer cannot correct the percentage of equipment specified in the plan by the applicable deadlines and cannot take other measures to bring the engine family into compliance with the standards, the manufacturer shall propose mitigation measures to offset the emissions of the unrepaired equipment within 45 days from the last report filed pursuant to Section 2439(c)(13), below. The Executive Officer shall approve such measures provided that:
(A) The emission reductions from the recalled and repaired equipment or engines and the mitigation measures are equivalent to achieving the capture rate; and(B) The emission reductions from the mitigation measures are real and verifiable; and(C) The mitigation measures are implemented in a timely manner.(11) Preliminary Tests. The Executive Officer may require the manufacturer to conduct tests on components and equipment or engines incorporating a proposed correction, repair, or modification reasonably designed and necessary to demonstrate the effectiveness of the correction, repair, or modification.(12) Communication with Repair Personnel. The manufacturer shall provide to the Executive Officer a copy of all communications which relate to the recall plan directed to dealers and other persons who are to perform the repair. Such copies shall be mailed to the Executive Officer contemporaneously with their transmission to dealers and other persons who are to perform the repair under the recall plan.(13) Recordkeeping and Reporting Requirements.(A) The manufacturer shall maintain sufficient records to enable the Executive Officer to conduct an analysis of the adequacy of the recall campaign. For each class or category of equipment or engine, the records shall include, but need not be limited to, the following:(i) Engine family involved and recall campaign number as designated by the manufacturer.(ii) Date owner notification was begun, and date completed.(iii) Number of equipment or engines involved in the recall campaign.(iv) Number of equipment or engines known or estimated to be affected by the nonconformity.(v) Number of equipment or engines inspected pursuant to the recall plan and found to be affected by the nonconformity.(vi) Number of inspected equipment or engines.(vii) Number of equipment or engines receiving repair under the recall plan.(viii) Number of equipment or engines determined to be unavailable for inspection or repair under the recall plan due to exportation, theft, scrapping, or for other reasons (specify).(ix) Number of equipment or engines determined to be ineligible for recall action due to removed or altered components.(x) A listing of the identification numbers of equipment or engines subject to recall but for whose repair the manufacturer has not been invoiced. This listing shall be supplied in a standardized computer data storage device to be specified by the Executive Officer. The frequency of this submittal, as specified in subsection (C) below, may be changed by the Executive Officer depending on the needs of recall enforcement.(xi) Any service bulletins transmitted to dealers which relate to the nonconformity and which have not previously been submitted.(xii) All communications transmitted to equipment or engine owners which relate to the nonconformity and which have not previously been submitted.(B) If the manufacturer determines that the original responses to subsections (A)(iii) and (iv) of these procedures are incorrect, revised figures and an explanatory note shall be submitted. Responses to subsections (A)(v), (vi), (vii), (viii), and (ix) shall be cumulative totals.(C) Unless otherwise directed by the Executive Officer, the information specified in subsection (A) of these procedures shall be included in six quarterly reports or two annual reports, beginning with the quarter in which the notification of owners was initiated, or until all nonconforming equipment or engines involved in the campaign have been remedied, whichever occurs sooner. Such reports shall be submitted no later than 25 days after the close of each calendar quarter.(D) The manufacturer shall maintain in a form suitable for inspection, such as computer information storage devices or card files, and shall make available to the Executive Officer or his or her authorized representative upon request, lists of the names and addresses of equipment or engine owners: (i) To whom notification was given;(ii) Who received remedial repair or inspection under the recall plan; and(iii) Who were denied eligibility for repair due to removed or altered components.(E) The records and reports required by these procedures shall be retained for not less than one year beyond the useful life of the equipment or engines involved, or one year beyond the reporting time frame specified in subsection (C) above, whichever is later.(14) Penalties. Failure by a manufacturer to carry out all recall actions ordered by the Executive Officer pursuant to Sections 2439(c) of these procedures is a violation of Health and Safety Code Section 43013 and 43105 and shall subject the manufacturer, on a per engine basis, to any and all remedies available under Part 5, Division 26 of the Health and Safety Code, sections 43000 et seq.
(d) Extension of Time. The Executive Officer may extend any deadline in the plan if he or she finds in writing that a manufacturer has shown good cause for such extension.(e) The Executive Officer may waive any or all of the requirements of these procedures if he or she determines that the requirement constitutes an unwarranted burden on the manufacturer without a corresponding emission reduction.Cal. Code Regs. Tit. 13, § 2439
1. New section filed 10-19-99; operative 11-18-99 (Register 99, No. 43). Note: Authority cited: Sections 39600, 39601, 43013, 43018, 43101, 43102, 43104 and 43105, Health and Safety Code. Reference: Sections 43000, 43009.5, 43013, 43017, 43018, 43101, 43102, 43104, 43105, 43106, 43107, 43150- 43154, 43205- 43205.5 and 43210- 43212, Health and Safety Code.
1. New section filed 10-19-99; operative 11-18-99 (Register 99, No. 43).