Pt. 205, Subpts. D and E, App. I

that the highest selectable range shall be employed.

(d) Measurements. (1) The sound level meter must be set for fast response and for the Aweighting network. The microphone wind screen must be used. The sound level meter must be calibrated with the acoustic calibrator as often as is necessary throughout testing to maintain the accuracy of the measurement system.

(2) The sound level meter must be observed throughout the passby period. The highest noise level obtained for the run must be recorded.

(3) At least three measurements shall be made for each side of the motorcycle. Measurements must be made until at least three readings from each side are within 2 dB of each other. The noise level for each side must be the average of the three. The noise level reported must be for that side of the motorcycle having the highest noise level. If the microphone location point is 7.5 m from the vehicle path as allowed in this appendix under paragraph (b)(1)(i)(c), the noise level must be adjusted by subtracting 6 dB prior to being reported.

(4) While making noise level measurements, not more than one person other than the rider and the observer reading the meter may be within 15 m (49.2 ft) of the vehicle or microphone, and that person must be directly behind the observer reading the

40 CFR Ch. I (7-1-94 Edition)

meter, on a line through the microphone and the observer.

(5) The ambient sound level (including wind effects) at the test site due to sources other than the motorcycle being measured must be no greater than 60 dB if the microphone is located 15 m from the vehicle path or 66 dB if the microphone is located 7.5 m from the vehicle path as allowed in this appendix under paragraph (b)(1)(i)(c).

(6) Wind speed at the test site during tests must be less than 20 km/h (12.4 mph).

(e) Required data. For each valid test, the following data must be recorded:

(1) Motorcycle type, serial number, model year, and date of manufacture.

(2) Names of persons conducting test. (3) Test location.

(4) Wind speed and ambient noise level measured on the same day as the test and representative of conditions during the test.

(5) Description of the sound level meter including type, serial number, and calibration date.

(6) Description of the external acoustic calibrator including type, serial number, and calibration date.

(7) Maximum noise level for each pass on each side of the motorcycle including invalid readings and reasons for invalidation.

(8) Reported noise level.

(9) Other information as appropriate to completely describe testing conditions and procedure.

(b) Administrative law judge means an administrative law judge appointed under 5 U.S.C. 3105 (see also 5 CFR part 930, as amended by 37 FR 16787). "Administrative law judge" is synonymous with "hearing examiner" as used in Title 5 of the United States Code.

(c) Administrator means the Administrator of the Environmental Protection Agency or his or her delegate.

(d) Agency means the U.S. Environmental Protection Agency.

(e) Complainant means the Agency acting through any person authorized by the Administrator to issue a complaint to alleged violators of the Act. The complainant shall not be the judicial officer or the Administrator.

(f) Hearing clerk means the hearing clerk of the Environmental Protection Agency.

(g) Intervener means a person who files a motion to be made a party under §209.15 or $209.16, and whose motion is approved.

(h) Party means the Environmental Protection Agency, the respondent(s) and any interveners.

(i) Person means any individual, corporation, partnership, or association, and includes any officer, employee, department, agency or instrumentality of the United States, a State, or any political subdivision of a State.

(j) Respondent means any person against whom a complaint has been issued under this subpart.

(k) Environmental Appeals Board means the Board within the Agency described in §1.25 of this title. The Administrator delegates authority to the Environmental Appeals Board to issue final decisions in appeals filed under this part. An appeal directed to the Administrator, rather than to the Environmental Appeals Board, will not be considered. This delegation of authority to the Environmental Appeals Board does not preclude the Environmental Appeals Board from referring an appeal or a motion filed under this part to the Administrator for decision when the Environmental Appeals Board, in its discretion, deems it appropriate to do so. When an appeal or motion is referred to the Administrator, all parties shall be so notified and the rules in this part referring to the Environmental Appeals Board shall

be interpreted as referring to the Administrator.

[43 FR 34132, Aug. 3, 1978, as amended at 57 FR 5344, Feb. 13, 1992]

§ 209.4 Issuance of complaint.

If the complainant has reason to believe that a person has violated any provision of the Act or the regulations, he or she may institute a proceeding for the issuance of a remedial order by issuing a complaint.

$209.5 Complaint.

(a) Contents. The complaint shall include (1) specific reference to each provision of the Act or regulations which respondent is alleged to have violated; (2) a brief statement of the factual basis for alleging each violation; (3) the proposed order issued under section 11(d) of the Act to remedy the violation, signed by the Assistant Administrator for Enforcement, with notice that the order shall be effective 20 days after service of the complaint unless respondent requests a hearing under § 209.6; (4) notice of respondent's right to request a hearing on any material fact or issue of law contained in the complaint, or on the appropriateness of the proposed order; and (5) a statement of whether the respondert must submit a remedial plan pursuant to § 209.8.

(b) Amendment of the complaint. At any time prior to the filing of an answer, the complainant may amend the complaint as a matter of right. Respondent shall have twenty (20) additional days from the date of service of the amended complaint to file an answer. At any time after the filing of an answer, the complaint may be amended upon motion granted by the administrative law judge.

(c) Withdrawal of the complaint. Where, on the basis of new information or evidence, the complainant concludes that no violation of the Act or the regulations has been committed by the respondent or that the issuance of the complaint was otherwise inappropriate, the complainant may withdraw the complaint without prejudice at any stage in the proceeding.

(d) Service of complaint. (1) Service of the complaint shall be made on the respondent personally (or on his or her

representative), or by certified mail, return receipt requested.

(2) Service upon a domestic or foreign corporation or upon a partnership or another unincorporated association which is subject to suit under a common name shall be made by personal service or certified mail, return receipt requested, directed to an officer or partner, a managing or general agent, or any other agent authorized by appointment or by Federal or State law to receive service of process.

(3) Proof of service of the complaint shall be made by affidavit of the person making personal service, or by properly executed return receipt.

§ 209.6 Answer.

(a) General. Where respondent (1) contests any material fact alleged in the complaint to constitute a violation of the Act or regulations; or (2) contends that the remedial order proposed in the complaint is inappropriate to the violation; or (3) contends that he or she is entitled to judgment as a matter of law, he or she shall file a written answer with the complainant. Any answer must be filed with the complainant within twenty (20) days after service of the complaint. Initiation of informal conferences with the Agency under $209.19 does not add to the twenty (20) day period. The time period in which to file an answer may be extended by the Administrator upon motion.

(b) Contents of the answer. The answer shall clearly and directly admit, deny or explain each of the factual allegations contained in the complaint with regard to which respondent has any knowledge. Whenever an allegation is denied, the answer shall state briefly the facts upon which the denial is based. The answer shall also state (1) whether a hearing is requested, (2) the facts respondent intends to place at issue, and (3) the circumstances or arguments which are alleged to constitute the grounds of defense.

(c) Hearing upon the issues. A hearing upon the issues raised by the complaint and answer shall be held upon written demand of respondent.

(d) Failure to plead specifically. A respondent's failure to plead specifically to any material factual allegation con