18 AAC 52.110. Enforcement procedures for violations by certified equipment manufacturer

(a) If the department or an implementing agency finds or has cause to believe that a certified equipment manufacturer or a designated service contractor of a certified equipment manufacturer is not providing service or maintenance consistent with the equipment manufacturer's certification under 18 AAC 52.420, the department will, in its discretion, or the implementing agency may investigate the alleged violation. If the implementing agency finds or has cause to believe that a violation exists, the implementing agency shall refer the matter to the department for further action. The department will, in its discretion, take an appropriate civil or criminal compliance action based on the nature and severity of the violation and the history of noncompliance by the equipment manufacturer or the designated service contractor.

(b) Violations for which the department might take compliance action under (a) of this section include the following:

(1) lack of a designated service provider located within this state;

(2) failure to respond within three working days from the time a service call is made for service or maintenance of an EIS within an I/M area;

(3) failure to complete all on-site repairs of an EIS within five working days from the time a service or maintenance request is made;

(4) failure to provide an on-call service technician consistent with the equipment manufacturer's certification under 18 AAC 52.420;

(5) failure to provide a call-in system and procedures for an EIS owner to either contact a service technician or place a service request that are consistent with the equipment manufacturer's certification under 18 AAC 52.420;

(6) failure to provide software updates for an EIS within the time frame specified by the department under this chapter or the program manual;

(7) failure to bring non-compliant EISs in the field into compliance with the analyzer system specifications set out in the program manual within the time frame requested by the department or in a way that is satisfactory to the department.

(8) violation of an applicable requirement of this chapter or the program manual; and

(9) conduct that constitutes fraud, deceit, or gross negligence.

(c) As part of a compliance action, the department will, in its discretion, issue a notice of violation to the certified equipment manufacturer or the designated service contractor unless immediate department action is warranted. If required in the notice of violation, the certified equipment manufacturer or the designated service contractor shall respond to the alleged violation within the time specified in the notice.

(d) If the department determines that a violation exists and it is in the public interest to do so, the department will modify, suspend, or revoke an equipment manufacturer's certification. A compliance action under this section is subject to the following:

(1) if the department modifies, suspends, or revokes an equipment manufacturer's certification, the department will send a notice to the manufacturer and, if applicable, the designated service contractor stating that, based on the department's written findings,

(A) the modification, suspension, or revocation is effective 30 days after the date of the notice;

(B) the manufacturer or the service contractor may request an informal agency review under (3) of this subsection or a formal hearing under (4) of this subsection within 10 days after receiving the notice and that the manufacturer or service contractor may also request a stay of the modification, suspension, or revocation under (2) of this subsection within 10 days after receiving the notice; and

(2) if a stay is requested, the department will, in its discretion, for good cause shown and upon reasonable conditions, stay the modification, suspension, or revocation of the certification for a reasonable time;

(3) an informal agency review under this subsection will be before the director of the department division that issued the notice or the director's designee; the designee may not be the person who issued the notice; the review will be conducted as follows:

(A) within seven working days after receipt of a request for an informal agency review, the person who would conduct the review shall decide if the request merits review;

(B) if the person who would conduct the review decides that the request does not merit review, the director of the division that issued the notice shall inform the manufacturer or service contractor in writing of that decision and include the reasons for the decision; the denial shall include a statement that the manufacturer or service contractor may seek a formal hearing under (4) of this subsection;

(C) if the review is granted, the person who will conduct the hearing may request additional information from the manufacturer or service contractor; the person who conducts the review shall issue a final decision within 15 days after receipt of the request for review or receipt of additional information requested, whichever is later, and shall also advise the manufacturer or service contractor of the right to seek a formal hearing under (4) of this subsection;

(D) a manufacturer or service contractor that may seek a formal hearing under this paragraph must submit a hearing request within 15 days after a decision made under (B) or (C) of this paragraph is served on the manufacturer or service contractor; if requested, the formal hearing will be held within 60 days after the department receives the request for a hearing;

(4) a formal hearing under this subsection shall

(A) be before the commissioner or a person designated by the commissioner to hear the matter and prepare a recommended decision for the commissioner's review; and

(B) follow the hearing procedures of the Administrative Procedures Act (AS 44.62);

(5) after a formal hearing conducted by commissioner under (4) of this subsection, the commissioner will affirm, modify, or set aside the modification, suspension, or revocation of the certification;

(6) after a formal hearing conducted by a person designated by the commissioner to hear the matter and prepare a recommended decision under (4) of this subsection, the commissioner will review the recommended decision and either affirm, modify, or set aside the modification, suspension, or revocation of the certification or return the recommended decision to the designated person for further proceedings, consideration, or recommendations; and

(7) the decision of the commissioner under (5) and (6) of this subsection is a final agency decision.

(e) The department will, in its discretion, enter into a compliance order by consent with the equipment manufacturer or designated service contractor to remedy the alleged violations rather than bring a compliance action and hold a hearing under (d) of this section if the manufacturer or service contractor agrees to waive its right to a hearing and review. If the department determines that a certified equipment manufacturer or a designated service provider has failed to timely implement the terms and conditions of a compliance order, the department will, in its discretion, start a compliance action to suspend, modify, or revoke the certification or refuse to renew a certification.

(f) If a certified equipment manufacturer voluntarily surrenders certification, the department will, in its discretion, take further civil or criminal enforcement action as appropriate.

(g) An equipment manufacturer whose certification has been modified, suspended, or revoked may apply for recertification at any time. In addition to meeting the applicable requirements of 18 AAC 52.420, the equipment manufacturer's application must include evidence that the manufacturer has taken adequate corrective action and has taken action necessary to avoid a reoccurrence of the violation.

History: Eff. 1/1/2000, Register 152

Authority: AS 46.03.010

AS 46.03.020

AS 46.14.030

AS 46.14.510

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