Subpart S - Recall Regulations

§85.1801 Definitions.

(a) The recall provisions of 40 CFR part 1068, subpart E, apply instead of the provisions of this subpart for heavy-duty motor vehicles and heavy-duty motor vehicle engines regulated under 40 CFR part 86, subpart A, and 40 CFR parts 1036 and 1037. The provisions of this subpart apply for other motor vehicles and motor vehicle engines.

§85.1802 Notice to manufacturer of nonconformity; submission of Remedial Plan.

(a) A manufacturer will be notified whenever the Administrator has determined that a substantial number of a class or category of vehicles or engines produced by that manufacturer, although properly maintained and used, do not conform to the regulations prescribed under section 202 of the Act in effect during (and applicable to) the model year of such vehicle. The notification will include a description of each class or category of vehicles or engines encompassed by the determination of nonconformity, will give the factual basis for the determination of nonconformity (except information previously provided the manufacturer by the Agency), and will designate a date, no sooner than 45 days from the date of receipt of such notification, by which the manufacturer shall have submitted a plan to remedy the nonconformity.

(b) Unless a hearing is requested pursuant to §85.1807, the remedial plan shall be submitted to the Administrator within the time limit specified in the Administrator's notification, provided that the Administrator may grant the manufacturer an extension upon good cause shown.

(c) If a manufacturer requests a public hearing pursuant to §85.1807, unless as a result of such hearing the Administrator withdraws his determination of nonconformity, the manufacturer shall submit the remedial plan within 30 days of the end of such hearing.

[39 FR 44375, Dec. 23, 1974, as amended at 42 FR 36456, July 15, 1977]

§85.1803 Remedial Plan.

(a) When any manufacturer is notified by the Administrator that a substantial number of any class or category of vehicles or engines, although properly maintained and used, do not conform to the regulations (including emission standards) or family particulate emission limits, as defined in part 86 promulgated under section 202 of the Act and in effect during (and applicable to) the model year of such class or classes of vehicles or engines, the manufacturer shall submit a plan to the Administrator to remedy such nonconformity. The plan shall contain the following:

(1) A description of each class or category of vehicle or engine to be recalled including the model year, the make, the model, and such other information as may be required to identify the vehicles or engines to be recalled.

(2) A description of the specific modifications, alterations, repairs, corrections, adjustments or other changes to be made to bring the vehicles or engines into conformity including a brief summary of the data and technical studies which support the manufacturer's decision as to the particular remedial changes to be used in correcting the nonconformity.

(3) A description of the method by which the manufacturer will determine the names and addresses of vehicle or engine owners.

(4) A description of the proper maintenance or use, if any, upon which the manufacturer conditions eligibility for repair under the remedial plan, an explanation of the manufacturer's reasons for imposing any such condition, and a description of the proof to be required of a vehicle or engine owner to demonstrate compliance with any such condition. Eligibility may not be denied solely on the basis that the vehicle or engine owner used parts not manufactured by the original equipment vehicle manufacturer, or had repairs performed by outlets other than the vehicle manufacturer's franchised dealers. No maintenance or use condition may be imposed unless it is, in the judgement of the Administrator, demonstrably related to preventing the nonconformity.

(5) A description of the procedure to be followed by vehicle or 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 required to correct the nonconformity, and the designation of facilities at which the nonconformity can be remedied: Provided, That repair shall be completed within a reasonable time designated by the Administrator from the date the owner first tenders his vehicle or engine after the date designated by the manufacturer as the date on or after which the owner can have the nonconformity remedied.

(6) If some or all of the nonconforming vehicles or engines are to be remedied by persons other than dealers or authorized warranty agents of the manufacturer, a description of the class of persons other than dealers and authorized warranty agents of the manufacturer who will remedy the nonconformity, and a statement indicating that the participating members of the class will be properly equipped to perform such remedial action.

(7) Three copies of the letters of notification to be sent to vehicle or engine owners.

(8) 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 remedial plan including the date by which an adequate supply of parts will be available to initiate the repair campaign, the percentage of the total parts requirement of each person who is to perform the repair under the remedial plan to be shipped to initiate the campaign, and the method to be used to assure the supply remains both adequate and responsive to owner demand.

(9) Three copies of all necessary instructions to be sent to those persons who are to perform the repair under the remedial plan.

(10) A description of the impact of the proposed changes on fuel consumption, driveability, and safety of each class or category of vehicles or engines to be recalled and a brief summary of the data, technical studies, or engineering evaluations which support these conclusions.

(11) Any other information, reports or data which the Administrator may reasonably determine is necessary to evaluate the remedial plan.

(b)(1) Notification to vehicle or engine owners shall be made by first class mail or by such means as approved by the Administrator: Provided, That for good cause, the Administrator may require the use of certified mail to ensure an effective notification.

(2) The manufacture shall use all reasonable means necessary to locate vehicle or engine owners: Provided, That for good cause, the Administrator may require the manufacturer to use motor vehicle registration lists as available from State or commercial sources to obtain the names and addresses of vehicle or engine owners to ensure an effective notification.

(3) The Administrator reserves the right to require the manufacturer to send by first class mail or other reasonable means subsequent notification to vehicle or engine owners: Provided, That for good cause, the Administrator may require the use of certified mail to ensure an effectctive notification.

(c)(1) The manufacturer shall require those who perform the repair under the remedial plan to affix a label to each vehicle or engine repaired or, when required, inspected under the remedial plan.

(2) The label shall be placed in such location as approved by the Administrator consistent with State law and shall be fabricated of a material suitable for the location in which it is installed and which is not readily removable intact.

(3) The label shall contain:

(i) The recall campaign number; and

(ii) A code designating the campaign facility at which the repair, or inspection for repair was performed.

(4) The Administrator reserves the right to waive any or all of the requirements of this paragraph if he determines that they constitute an unwarranted burden to the manufacturer.

(d) The Administrator may require the manufacturer to conduct tests on components and vehicles or engines incorporating a proposed change, repair, or modification reasonably designed and necessary to demonstrate the effectiveness of the change, repair, or modification.

Note:

An interpretive ruling regarding §85.1803 is published in appendix A to this subpart.

(e) A remedial plan for an alternative remedy under 40 CFR 86.1865-12(j)(3) that does not involve vehicle repairs may omit items from this section that do not apply. For example, such a remedial plan will generally omit information related to proper maintenance, vehicle repairs, and vehicle labeling.

[39 FR 44375, Dec. 23, 1974, as amended at 40 FR 28067, July 3, 1975; 42 FR 36456, July 15, 1977; 45 FR 36398, May 30, 1980; 48 FR 33462, July 21, 1983; 89 FR 28152, Apr. 18, 2024; 89 FR 28152, Apr. 18, 2024]

§85.1804 Approval of Plan: Implementation.

(a) If the Administrator finds that the remedial plan is designed and effective to correct the nonconformity, he will so notify the manufacturer in writing. If the remedial plan is not approved, the Administrator will provide the manufacturer notice of the disapproval and the reasons for the disapproval in writing.

(b) Upon receipt of notice from the Administrator that the remedial plan has been approved, the manufacturer shall commence implementation of the approved plan. Notification of vehicle or engine owners shall be in accordance with requirements of this subpart and shall proceed as follows:

(1) When no public hearing as described in §85.1807 is requested by the manufacturer, notification of vehicles or engine owners shall commence within 15 working days of the receipt by the manufacturer of the Administrator's approval unless otherwise specified by the Administrator.

(2) When a public hearing as described in §85.1807 is held, unless as a result of such hearing the Administrator withdraws the determination of nonconformity, the Administrator shall, within 60 days after the completion of such hearing, order the manufacturer to provide prompt notification of such nonconformity.

§85.1805 Notification to vehicle or engine owners.

(a) Except as specified in paragraph (b) of this section, the notification of vehicle or engine owners shall contain the following:

(1) The statement: “The Administrator of the U.S. Environmental Protection Agency has determined that your vehicle or engine may be emitting pollutants in excess of the Federal emission standards or family particulate emission limits, as defined in part 86. These standards or family particulate emission limits, as defined in part 86 were established to protect the public health or welfare from the dangers of air pollution.”

(2) A statement that the nonconformity of any such vehicles or engines which have been, if required by the remedial plan, properly maintained and used, will be remedied at the expense of the manufacturer.

(3) A description of the proper maintenance or use, if any, upon which the manufacturer conditions eligibility for repair under the remedial plan and a description of the proof to be required of a vehicle or engine owner to demonstrate compliance with such condition. Eligibility may not be denied solely on the basis that the vehicle or engine owner used parts not manufactured by the original equipment vehicle manufacturer, or had repairs performed by outlets other than the vehicle manufacturer's franchised dealers.

(4) A clear description of the components which will be affected by the remedy and a general statement of the measures to be taken to correct the nonconformity.

(5) A statement that such nonconformity if not repaired may cause the vehicle or engine to fail an emission inspection test when such tests are required under State or local law.

(6) A description of the adverse affects, if any, that an uncorrected nonconformity would have on the performance or driveability of the vehicle or engine.

(7) A description of the adverse affects, if any, that such nonconformity would have on the functions of other engine components.

(8) A description of the procedure which the vehicle or engine owner should follow 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 required to correct the nonconformity, and the designation of facilities at which the nonconformity can be remedied.

(9) A card to be used by a vehicle or engine owner in the event the vehicle or engine to be recalled has been sold. Such card should be addressed to the manufacturer and shall provide a space in which the owner may indicate the name and address of the person to whom the vehicle or engine was sold.

(10) The statement: “In order to ensure your full protection under the emission warranty made applicable to your (vehicle or engine) by Federal law, and your right to participate in future recalls, it is recommended that you have (vehicle or engine) serviced as soon as possible. Failure to do so could legally be determined to be a lack of proper maintenance of your (vehicle or engine).”

(b) In the case of manufacturers submitting an alternative remedy under 40 CFR 86.1865-12(j)(3) that does not involve vehicle repairs, the proposed remedy must also include a proposal for notifying owners of the nonconformity. The notification must contain the following:

(1) The statement: “The Administrator of the U.S. Environmental Protection Agency has determined that your vehicle or engine may be emitting pollutants in excess of the Federal emission standards as defined in 40 CFR part 86. These emission standards were established to protect the public health or welfare from the dangers of air pollution.”

(2) A clear description of the measures to be taken to correct the nonconformity.

(c) No notice sent pursuant to paragraph (a) of this section nor any other contemporaneous communication sent to vehicle or engine owners or dealers shall contain any statement or implication that the nonconformity does not exist or that the nonconformity will not degrade air quality.

(d) The manufacturer shall be informed of any other requirements pertaining to the notification under this section which the Administrator has determined are reasonable and necessary to ensure the effectiveness of the recall campaign.

[39 FR 44375, Dec. 23, 1974, as amended at 48 FR 33462, July 21, 1983; 89 FR 28152, Apr. 18, 2024]

§85.1806 Records and reports.

(a) The manufacturer shall provide to the Administrator a copy of all communications which relate to the remedial plan directed to dealers and other persons who are to perform the repair under the remedial plan. Such copies shall be mailed to the Administrator contemporaneously with their transmission to dealers and other persons who are to perform the repair under the remedial plan.

(b) The manufacturer shall provide for the establishment and maintenance of records to enable the Administrator to conduct a continuing analysis of the adequacy of the recall campaign. The records shall include, for each class or category of vehicle or engine, but need not be limited to, the following:

(1) Recall campaign number as designated by the manufacturer.

(2) Date owner notification was begun, and date completed.

(3) Number of vehicles or engines involved in the recall campaign.

(4) Number of vehicles or engines known or estimated to be affected by the nonconformity.

(5) Number of vehicles or engines inspected pursuant to the remedial plan.

(6) Number of inspected vehicles found to be affected by the nonconformity.

(7) Number of vehicles actually receiving repair under the remedial plan.

(8) Number of vehicles determined to be unavailable for inspection or repair under the remedial plan due to exportation, theft, scrapping or for other reasons (specify).

(9) Number of vehicles or engines determined to be ineligible for remedial action due to a failure to properly maintain or use such vehicles or engines.

(c) If the manufacturer determines that the original answers for paragraphs (b) (3) and (4) of this section are incorrect, revised figures and an explanatory note shall be submitted. Answers to paragraphs (b) (5), (6), (7), and (8), and (9) of this section shall be cumulative totals.

(d) Unless otherwise directed by the Administrator, the information specified in paragraph (b) of this section shall be included in quarterly reports, with respect to each recall campaign, for six consecutive quarters beginning with the quarter in which the notification of owners was initiated, or until all nonconforming vehicles or engines involved in the campaign have been remedied, whichever occurs sooner. Such reports shall be submitted no later than 25 working days after the close of each calendar quarter.

(e) The manufacturer shall maintain in a form suitable for inspection, such as computer information storage devices or card files, lists of the names and addresses of vehicles or engine owners.

(1) To whom notification was given;

(2) Who received remedial repair or inspection under the remedial plan; and

(3) When eligibility for repair is conditioned on proper maintenance or use, that were determined not to qualify for such remedial action.

(f) The records described in paragraph (e) of this section shall be made available to the Administrator upon request.

(g) The records and reports required by this section shall be retained for not less than 5 years.

[39 FR 44375, Dec. 23, 1974; 40 FR 3447, Jan. 22, 1975]

§85.1807 Public hearings.

Manufacturers may request a hearing as described in 40 CFR part 1068, subpart G.

[39 FR 44375, Dec. 23, 1974; 40 FR 3447, Jan. 22, 1975, as amended at 44 FR 61962, Oct. 29, 1979; 57 FR 5329, Feb. 13, 1992; 86 FR 34364, Jun. 29, 2021]

§85.1808 Treatment of confidential information.

The provisions of 40 CFR 1068.10 and 1068.11 apply for information you submit under this subpart.

[50 FR 34797, Aug. 27, 1985, as amended at 57 FR 5330, Feb. 13, 1992; 86 FR 34364, Jun. 29, 2021; 88 FR 4472, Jan. 24, 2023]

Appendix A to Subpart S of Part 85 - Interpretive Ruling for §85.1803 - Remedial Plans

The purpose of this rule is to set forth EPA's interpretation regarding one aspect of a motor vehicle or motor vehicle engine manufacturer's recall liability under section 207(c)(1) of the Clean Air Act, 42 U.S.C. 7641(c)(1). This rule will provide guidance to vehicle and engine manufacturers to better enable them to submit acceptable remedial plans.

Section 207(c)(1) requires the Administrator to base a recall order on a determination that a substantial number of in-use vehicles or engines within a given class or category of vehicles or engines, although properly maintained and used, fail to conform to the regulations prescribed under section 202 when in actual use throughout their useful lives. After making such a determination, he shall require the manufacturer to submit a plan to remedy the nonconformity of any such vehicles or engines. The plan shall provide that the manufacturer will remedy, at the manufacturer's expense, all properly maintained and used vehicles which experienced the nonconformity during their useful lives regardless of their age or mileage at the time of repair.

(Secs. 207 and 301(a), Clean Air Act, as amended, 42 U.S.C. 7541 and 7601(a))

[45 FR 36398, May 30, 1980]