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§1068.601 Overview.
The regulations of this chapter involve numerous provisions that may result in EPA making a decision or judgment that you may consider adverse to your interests. For example, our decisions might require you to pay penalties, or you might consider that our decisions will limit your business activities or put you at a competitive disadvantage. As specified in the regulations in this chapter, this might involve an opportunity for an informal hearing or a formal hearing that follows specific procedures and is directed by a Presiding Officer. The regulations in this chapter generally specify when we would hold a hearing. In limited circumstances, we may grant a request for a hearing related to adverse decisions regarding regulatory provisions for which we do not specifically describe the possibility of asking for a hearing.
(a) If you request a hearing regarding our decision to assess administrative penalties under §1068.125, we will hold a formal hearing according to the provisions of 40 CFR 22.1 through 22.32 and 22.34.
(b) For other issues where the regulation allows for a hearing in response to an adverse decision, you may request an informal hearing as described in §1068.650. Sections 1068.610 through 1068.630 describe when and how to request an informal hearing under various circumstances.
(c) The time limits we specify are calendar days and include weekends and holidays, except that a deadline falling on a Saturday, Sunday, or a federal holiday is understood to move to the next business day. Your filing will be considered timely based on the following criteria relative to the specified deadline:
(1) The postmarked date for items sent by U.S. mail must be on or before the specified date.
(2) The ship date for items sent from any location within the United States by commercial carriers must be on or before the specified date.
(3) Items sent by mail or courier from outside the United States must be received by the specified date.
(4) The time and date stamp on an email message must be at or before 5:00 p.m. on the specified date (in either the source or destination time zone).
(5) The time and date stamp on faxed pages must be at or before 5:00 p.m. on the specified date (in either the source or destination time zone).
(6) Hand-delivered items must be received by the appropriate personnel by 3:00 p.m. on the specified date.
(d) See the standard-setting part for additional information. If the standard-setting part specifies any provisions that are contrary to those described in this subpart, the provisions of the standard-setting part apply instead of those described in this subpart.
[88 FR 4718, Jan. 24, 2023]
§1068.610 Request for hearing - suspending, revoking, or voiding a certificate of conformity.
(a) You may request an informal hearing as described in §1068.650 if you disagree with our decision to suspend, revoke, or void a certificate of conformity.
(b) If you request a hearing regarding the outcome of a testing regimen with established evaluation criteria, such as selective enforcement audits or routine production-line testing, we will hold a hearing limited to the following issues that are relevant to your circumstances:
(1) Whether tests were conducted in accordance with applicable regulations.
(2) Whether test equipment was properly calibrated and functioning.
(3) Whether specified sampling procedures were followed to select engines/equipment for testing.
(4) Whether there is a basis for determining that the problems identified do not apply for engines/equipment produced at plants other than the one from which engines/equipment were selected for testing.
(c) You must send your hearing request in writing to the Designated Compliance Officer no later than 30 days after we notify you of our decision to suspend, revoke, or void your certificate, or by some later deadline we specify. If the deadline passes, we may nevertheless grant you a hearing at our discretion.
(d) Your hearing request must include the following information:
(1) Identify the classes or categories of engines/equipment that will be the subject of the hearing.
(2) State briefly which issues you will raise at the hearing for each affected class or category of engines/equipment.
(3) Specify why you believe the hearing will conclude in your favor for each of the issues you will raise.
(4) Summarize the evidence supporting your position on each of the issues you will raise and include any supporting data.
(e) We will approve your request for an informal hearing if we find that your request raises a substantial factual issue in the decision we made that, if addressed differently, could alter the outcome of that decision.
§1068.615 Request for hearing - denied application for certification, automatically suspended certificate, and determinations related to certification.
(a) You may request an informal hearing as described in §1068.650 if we deny your application for a certificate of conformity, if your certificate of conformity is automatically suspended under the regulations, or if you disagree with determinations we make as part of the certification process. For example, you might disagree with our determinations regarding adjustable parameters under §1068.50 or regarding your good engineering judgment under §1068.5.
(b) You must send your hearing request in writing to the Designated Compliance Officer no later than 30 days after we notify you of our decision, or by some later deadline we specify. If the specified deadline passes, we may nevertheless grant you a hearing at our discretion.
(c) Your hearing request must include the information specified in §1068.610(d).
(d) We will approve your request for an informal hearing if we find that your request raises a substantial factual issue in the decision we made that, if addressed differently, could alter the outcome of that decision.
§1068.620 Request for hearing - recall.
(a) You may request an informal hearing as described in §1068.650 if you disagree with our decision to order a recall.
(b) You must send your hearing request in writing to the Designated Compliance Officer no later than 45 days after we notify you of our decision, or by some later deadline we specify. If the specified deadline passes, we may nevertheless grant you a hearing at our discretion.
(c) Your hearing request must include the information specified in §1068.610(d).
(d) We will approve your request for an informal hearing if we find that your request raises a substantial factual issue in the decision we made that, if addressed differently, could alter the outcome of that decision.
§1068.625 Request for hearing - nonconformance penalties.
(a) You may request an informal hearing as described in §1068.650 if you disagree with our determination of compliance level or penalty calculation or both. The hearing will address only whether the compliance level or penalty was determined in accordance with the regulations.
(b) Send a request for a hearing in writing to the Designated Compliance Officer within the following time frame, as applicable:
(1) No later than 15 days after we notify you that we have approved a nonconformance penalty under this subpart if the compliance level is in the allowable range of nonconformity.
(2) No later than 15 days after completion of the Production Compliance Audit if the compliance level exceeds the upper limit.
(3) No later than 15 days after we notify you of an adverse decision for all other cases.
(c) If you miss the specified deadline in paragraph (b) of this section, we may nevertheless grant you a hearing at our discretion.
(d) Your hearing request must include the information specified in §1068.610(d).
(e) We will approve your request for an informal hearing if we find that your request raises a substantial factual issue in the decision we made that, if addressed differently, could alter the outcome of that decision.
§1068.630 Request for hearing—allowable maintenance.
(a) Any manufacturer may request an informal hearing as described in §1068.650 in response to our decision to identify allowable maintenance associated with new technology as part of the certification process.
(b) You must send your hearing request in writing to the Designated Compliance Officer no later than 30 days after we publish our decision in the Federal Register. If the deadline passes, we may nevertheless grant you a hearing at our discretion.
(c) Your hearing request must include the information specified in §1068.610(d).
(d) We will approve your request for an informal hearing if we find that your request raises a substantial factual issue in the decision we made that, if addressed differently, could alter the outcome of that decision.
[88 FR 4718, Jan. 24, 2023]
§1068.650 Procedures for informal hearings.
(a) The following provisions apply for arranging the hearing:
(1) After granting your request for an informal hearing, we will designate a Presiding Officer for the hearing.
(2) The Presiding Officer will select the time and place for the hearing. The hearing must be held as soon as practicable for all parties involved.
(3) The Presiding Officer may require that all argument and presentation of evidence be concluded by a certain date after commencement of the hearing.
(b) The Presiding Officer will establish a paper or electronic hearing record, which may be made available for inspection. The hearing record includes, but is not limited to, the following materials:
(1) All documents relating to the application for certification, including the certificate of conformity itself, if applicable.
(2) Your request for a hearing and the accompanying supporting data.
(3) Correspondence and other data relevant to the hearing.
(4) The Presiding Officer's written decision regarding the subject of the hearing, together with any accompanying material.
(c) You may appear in person or you may be represented by counsel or by any other representative you designate.
(d) The Presiding Officer may arrange for a prehearing conference, either in response to a request from any party or at his or her own discretion. The Presiding Officer will select the time and place for the prehearing conference. The Presiding Officer will summarize the results of the conference and include the written summary as part of the record. The prehearing conference may involve consideration of the following items:
(1) Simplification of the issues.
(2) Stipulations, admissions of fact, and the introduction of documents.
(3) Limitation of the number of expert witnesses.
(4) Possibility of reaching an agreement to resolve any or all of the issues in dispute.
(5) Any other matters that may aid in expeditiously and successfully concluding the hearing.
(e) Hearings will be conducted as follows:
(1) The Presiding Officer will conduct informal hearings in an orderly and expeditious manner. The parties may offer oral or written evidence; however, the Presiding Officer may exclude evidence that is irrelevant, immaterial, or repetitious.
(2) Witnesses will not be required to testify under oath; however, the Presiding Officer must make clear that 18 U.S.C. 1001 specifies civil and criminal penalties for knowingly making false statements or representations or using false documents in any matter within the jurisdiction of EPA or any other department or agency of the United States.
(3) Any witness may be examined or cross-examined by the Presiding Officer, by you, or by any other parties.
(4) Written transcripts must be made for all hearings. Anyone may purchase copies of transcripts from the reporter.
(f) The Presiding Officer will make a final decision with written findings, conclusions and supporting rationale on all the substantial factual issues presented in the record. The findings, conclusions, and written decision must be provided to the parties and made a part of the record.