89.129 Right of entry.§ 89.129 Right of entry.
(a) Any manufacturer who has applied for certification of a new engine or engine family subject to certification testing under this subpart shall admit or cause to be admitted to any of the following facilities during operating hours any EPA enforcement officer or EPA authorized representative on presentation of credentials.
(1) Any facility where any such certification testing or any procedures or activities connected with such certification testing are or were performed;
(2) Any facility where any new engine which is being, was, or is to be tested is present;
(3) Any facility where any construction process or assembly process used in the modification or buildup of such an engine into a certification engine is taking place or has taken place; and
(4) Any facility where any record or other document relating to any of the above is located.
(b) Upon admission to any facility referred to in paragraph (a)(1) of this section, any EPA enforcement officer or EPA authorized representative shall be allowed:
(1) To inspect and monitor any part or aspect of such procedures, activities, and testing facilities, including, but not limited to, monitoring engine preconditioning, emission tests and service accumulation, maintenance, and engine storage procedures, and to verify correlation or calibration of test equipment;
(2) To inspect and make copies of any such records, designs, or other documents; and
(3) To inspect and photograph any part or aspect of any such certification engine and any components to be used in the construction thereof.
(c) To allow the Administrator to determine whether production engines conform in all material respects to the design specifications applicable to those engines, as described in the application for certification for which a certificate of conformity has been issued, any manufacturer shall admit any EPA enforcement officer or EPA authorized representative on presentation of credentials to:
(1) Any facility where any document, design, or procedure relating to the translation of the design and construction of engines and emission-related components described in the application for certification or used for certification testing into production engines is located or carried on; and
(2) Any facility where any engines to be introduced into commerce are manufactured or assembled.
(d) On admission to any such facility referred to in paragraph (c) of this section, any EPA enforcement officer or EPA authorized representative shall be allowed:
(1) To inspect and monitor any aspects of such manufacture or assembly and other procedures;
(2) To inspect and make copies of any such records, documents or designs; and
(3) To inspect and photograph any part or aspect of any such new engines and any component used in the assembly thereof that are reasonably related to the purpose of his or her entry.
(e) Any EPA enforcement officer or EPA authorized representative shall be furnished by those in charge of a facility being inspected with such reasonable assistance as he or she may request to help the enforcement officer or authorized representative discharge any function listed in this paragraph. Each applicant for or recipient of certification is required to cause those in charge of a facility operated for its benefit to furnish such reasonable assistance without charge to EPA whether or not the applicant controls the facility.
(1) Reasonable assistance includes, but is not limited to, clerical, copying, interpretation and translation services; the making available on request of personnel of the facility being inspected during their working hours to inform the EPA enforcement officer or EPA authorized representative of how the facility operates and to answer the officer's questions; and the performance on request of emission tests on any engine which is being, has been, or will be used for certification testing. Such tests shall be nondestructive, but may require appropriate service accumulation.
(2) A manufacturer may be compelled to cause any employee at a facility being inspected to appear before an EPA enforcement officer or EPA authorized representative. The request for the employee's appearance shall be in writing, signed by the Assistant Administrator for Air and Radiation, and served on the manufacturer. Any employee who has been instructed by the manufacturer to appear will be entitled to be accompanied, represented, and advised by counsel.
(f) The duty to admit or cause to be admitted any EPA enforcement officer or EPA authorized representative applies whether or not the applicant owns or controls the facility in question and applies both to domestic and to foreign manufacturers and facilities. EPA will not attempt to make any inspections which it has been informed that local law forbids. However, if local law makes it impossible to do what is necessary to ensure the accuracy of data generated at a facility, no informed judgment that an engine is certifiable or is covered by a certificate can properly be based on those data. It is the responsibility of the manufacturer to locate its testing and manufacturing facilities in jurisdictions where this situation will not arise.
(g) Any entry without 24 hours prior written or oral notification to the affected manufacturer shall be authorized in writing by the Assistant Administrator for Enforcement.[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]