Title 40
SECTION 89.612
89.612 Prohibited acts; penalties.
§ 89.612 Prohibited acts; penalties.(a) The importation of a nonroad engine, including a nonroad engine incorporated into a nonroad vehicle or nonroad equipment, which is not covered by a certificate of conformity other than in accordance with this subpart and the entry regulations of the U.S. Customs Service is prohibited. Failure to comply with this section is a violation of section 213(d) and section 203 of the Act.
(b) Unless otherwise permitted by this subpart, during a period of conditional admission, the importer of a nonroad engine may not:
(1) Register, license, or operate the nonroad engine in the United States;
(2) Sell or offer the nonroad engine for sale;
(3) Store the nonroad engine on the premises of a dealer (unless approved by the Administrator), owner, or purchaser;
(4) Relinquish control of the nonroad engine to the owner or purchaser; or
(5) Cause a nonroad engine to be altered in any manner subsequent to modification and testing, if applicable, for which an application for final admission is based and submitted to the Administrator, unless approved in advance by the Administrator.
(c) A nonroad engine conditionally admitted pursuant to § 89.604 and not granted final admission within 120 days of such conditional admission, or within such additional time as the Administrator and the U.S. Customs Service may allow, is deemed to be unlawfully imported into the United States in violation of section 213(d) and section 203 of the Act, unless the nonroad engine has been delivered to the U.S. Customs Service for export or other disposition under applicable Customs laws and regulations. A nonroad engine not so delivered is subject to seizure by the U.S. Customs Service.
(d) An importer who violates section 213(d) and section 203 of the Act is subject to the provisions of section 209 of the Act and is also subject to a civil penalty under section 205 of the Act of not more than $32,500 for each nonroad engine subject to the violation.
In addition to the penalty provided in the Act, where applicable, a person or entity who imports an engine under the exemption provisions of § 89.611(b) and, who fails to deliver the nonroad engine to the U.S. Customs Service is liable for liquidated damages in the amount of the bond required by applicable Customs laws and regulations. The maximum penalty value listed in this paragraph (d) is shown for calendar year 2004. Maximum penalty limits for later years may be adjusted based on the Consumer Price Index. The specific regulatory provisions for changing the maximum penalties, published in 40 CFR part 19, reference the applicable U.S. Code citation on which the prohibited action is based.
(e)(1) An ICI whose nonroad engines imported under § 89.605 or § 89.609 fail to conform to federal emission requirements after modification and/or testing or who fails to comply with applicable provisions of this subpart, may, in addition to any other applicable sanctions and penalties, be subject to any, or all, of the following sanctions:
(i) The ICI's currently held certificates of conformity may be revoked or suspended;
(ii) The ICI may be deemed ineligible to apply for new certificates of conformity for up to three years; and
(iii) The ICI may be deemed ineligible to import nonroad engines under § 89.609 in the future and be placed on a list of ICIs ineligible to import nonroad engines under the provisions of § 89.609.
(2) Grounds for the actions described in paragraph (e)(1) of this section include, but are not limited to, the following:
(i) Action or inaction by the ICI or the laboratory performing the emission test on behalf of the ICI, which results in fraudulent, deceitful, or grossly inaccurate representation of any fact or condition which affects a nonroad engine's eligibility for admission to the United States under this subpart;
(ii) Failure of a significant number of imported nonroad engines to comply with federal emission requirements upon EPA inspection or retest; or
(iii) Failure by an ICI to comply with requirements of this subpart.
(3) The following procedures govern any decision to suspend, revoke, or refuse to issue certificates of conformity under this subpart:
(i) When grounds appear to exist for the actions described in paragraph (e)(1) of this section, the Administrator must notify the ICI in writing of any intended suspension or revocation of a certificate of conformity, proposed ineligibility to apply for new certificates of conformity, or intended suspension of eligibility to conduct modification/testing under § 89.609, and the grounds for such action.
(ii) Except as provided by paragraph (e)(3)(iv), the ICI must take the following actions before the Administrator will consider withdrawing notice of intent to suspend or revoke the ICI's certificate of conformity or to deem the ICI ineligible to apply for new certification or to deem the ICI ineligible to perform modification/testing under § 89.609:
(A) Submit a written report to the Administrator which identifies the reason for the noncompliance of the nonroad engine, describes the proposed remedy, including a description of any proposed quality control and/or quality assurance measures to be taken by the ICI to prevent the future occurrence of the problem, and states the date on which the remedies are to be implemented or
(B) Demonstrate that the nonroad engine does in fact comply with applicable regulations in this chapter by retesting, if applicable, the nonroad engine in accordance with the applicable emission test specified in subpart E of this part.
(iii) An ICI may request, within 15 calendar days of the Administrator's notice of intent to suspend or revoke the ICI's certificate of conformity or to deem the ICI ineligible to apply for new certificates or to deem the ICI ineligible to perform modification/testing under § 89.609, that the Administrator grant such ICI a hearing:
(A) As to whether the tests, if applicable, have been properly conducted,
(B) As to any substantial factual issue raised by the Administrator's proposed action.
(iv) If, after the Administrator notifies an ICI of the intent to suspend or revoke the ICI's certificate of conformity or to deem the ICI ineligible to apply for new certificates or to deem the ICI ineligible to perform modification/testing under § 89.609 and prior to any final suspension or revocation, the ICI demonstrates to the Administrator's satisfaction that the decision to initiate suspension or revocation of the certificate of conformity or eligibility to perform modification/testing under § 89.609 was based on erroneous information, the Administrator will withdraw the notice of intent.
(4) Hearings on suspensions and revocations of certificates of conformity or of eligibility to apply for new certificates or of eligibility to perform modification/testing under § 89.609 will be held in accordance with the following:
(i) The procedures prescribed by this section will apply whenever an ICI requests a hearing pursuant to paragraph (e)(3)(iii) of this section.
(ii) Hearings under paragraph (e)(3)(iii) will be held in accordance with the procedures outlined in § 86.614 of this chapter, where applicable, provided that where § 86.612 is referred to in § 86.614: § 86.612(a) is replaced by § 89.612(e)(2); and § 86.612(i) is replaced by § 89.612(e)(3)(iii).
(5) When a hearing is requested under this section and it clearly appears from the data or other information contained in the request for a hearing, or submitted at the hearing, that no genuine and substantial question of fact exists with respect to the issue of whether the ICI failed to comply with this subpart, the Administrator will enter an order denying the request for a hearing, or terminating the hearing, and suspending or revoking the certificate of conformity and/or deeming the ICI ineligible to apply for new certificates or to perform modification/testing under § 89.609.
(6) In lieu of requesting a hearing under paragraph (e)(3)(iii) of this section, an ICI may respond in writing to EPA's charges in the notice of intent to suspend or revoke. An ICI's written response must be received by EPA within 30 days of the date of EPA's notice of intent. No final decision to suspend or revoke will be made before that time.
[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56996, Oct. 23, 1998, as amended at 70 FR 40446, July 13, 2005]