(a) Under sections 333(d) and 345 of the Act, before issuing an order assessing a civil penalty against any person, the Secretary must provide to such a person a notice of the proposed penalty. Such notice must inform the person that such person can choose (in writing within 30 days after receipt of the notice) to have the procedures of paragraph (c) of this section (in lieu of those in paragraph (b) of this section) apply with respect to such assessment.
(b)(1) Unless a person elects, within 30 calendar days after receipt of a notice under paragraph (a) of this section, to have paragraph (c) of this section apply with respect to the civil penalty under paragraph (a), the Secretary will assess the penalty, by order, after providing an opportunity for an agency hearing under 5 U.S.C. 554, before an administrative law judge appointed under 5 U.S.C. 3105, and making a determination of violation on the record. Such assessment order will include the administrative law judge's findings and the basis for such assessment.
(1) Unless a person elects, within 30 calendar days after receipt of a notice under paragraph (a) of this section, to have paragraph (c) of this section apply with respect to the civil penalty under paragraph (a), the Secretary will assess the penalty, by order, after providing an opportunity for an agency hearing under 5 U.S.C. 554, before an administrative law judge appointed under 5 U.S.C. 3105, and making a determination of violation on the record. Such assessment order will include the administrative law judge's findings and the basis for such assessment.
(2) Any person against whom the Secretary assesses a penalty under this paragraph may, within 60 calendar days after the date of the order assessing such penalty, initiate action in the United States Court of Appeals for the appropriate judicial circuit for judicial review of such order in accordance with 5 U.S.C. chapter 7. The court will have jurisdiction to enter a judgment affirming, modifying, or setting aside in whole or in part, the order of the Secretary, or the court may remand the proceeding to the Secretary for such further action as the court may direct.
(c)(1) In the case of any civil penalty with respect to which the procedures of this paragraph have been elected, the Secretary will promptly assess such penalty, by order, after the date of the receipt of the notice under paragraph (a) of this section of the proposed penalty.
(1) In the case of any civil penalty with respect to which the procedures of this paragraph have been elected, the Secretary will promptly assess such penalty, by order, after the date of the receipt of the notice under paragraph (a) of this section of the proposed penalty.
(2) If the person has not paid the civil penalty within 60 calendar days after the assessment has been made under paragraph (c)(1) of this section, the Secretary will institute an action in the appropriate District Court of the United States for an order affirming the assessment of the civil penalty. The court will have authority to review de novo the law and the facts involved and jurisdiction to enter a judgment enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part, such assessment.
(3) Any election to have this paragraph apply can only be revoked with the consent of the Secretary.
(d) If any person fails to pay an assessment of a civil penalty after it has become a final and unappealable order under paragraph (b) of this section, or after the appropriate District Court has entered final judgment in favor of the Secretary under paragraph (c) of this section, the Secretary will institute an action to recover the amount of such penalty in any appropriate District Court of the United States. In such action, the validity and appropriateness of such final assessment order or judgment will not be subject to review.
(e)(1) In accordance with the provisions of sections 333(d)(5)(A) and 345 of the Act and notwithstanding the provisions of title 28, United States Code, or Section 502(c) of the Department of Energy Organization Act, the General Counsel of the Department of Energy (or any attorney or attorneys within DOE designated by the Secretary) will represent the Secretary, and will supervise, conduct, and argue any civil litigation to which paragraph (c) of this section applies (including any related collection action under paragraph (d) of this section) in a court of the United States or in any other court, except the Supreme Court of the United States. However, the Secretary or the General Counsel will consult with the Attorney General concerning such litigation and the Attorney General will provide, on request, such assistance in the conduct of such litigation as may be appropriate.
(1) In accordance with the provisions of sections 333(d)(5)(A) and 345 of the Act and notwithstanding the provisions of title 28, United States Code, or Section 502(c) of the Department of Energy Organization Act, the General Counsel of the Department of Energy (or any attorney or attorneys within DOE designated by the Secretary) will represent the Secretary, and will supervise, conduct, and argue any civil litigation to which paragraph (c) of this section applies (including any related collection action under paragraph (d) of this section) in a court of the United States or in any other court, except the Supreme Court of the United States. However, the Secretary or the General Counsel will consult with the Attorney General concerning such litigation and the Attorney General will provide, on request, such assistance in the conduct of such litigation as may be appropriate.
(2) In accordance with the provisions of sections 333(d)(5)(B) and 345 of the Act, and subject to the provisions of Section 502(c) of the Department of Energy Organization Act, the Secretary will be represented by the Attorney General, or the Solicitor General, as appropriate, in actions under this section, except to the extent provided in paragraph (e)(1) of this section.
(3) In accordance with the provisions of Section 333(d)(5)(c) and 345 of the Act, Section 402(d) of the Department of Energy Organization Act will not apply with respect to the function of the Secretary under this section. Sec. Appendix A to Subpart U of Part 431--Sampling Plan for Enforcement
Testing of Electric Motors
Step 1. The first sample size (n1) must be five or more units.
Step 2. Compute the mean (XX1 of the measured energy performance of the n1 units in the first sample as follows:[GRAPHIC] [TIFF OMITTED] TR83AD04.005 where Xi is the measured full-load efficiency of unit i.
Step 3. Compute the sample standard deviation (S1) of the measured full-load efficiency of the n1 units in the first sample as follows:[GRAPHIC] [TIFF OMITTED] TR83AD04.006
Step 4. Compute the standard error (SE(XX1)) of the mean full-load efficiency of the first sample as follows:[GRAPHIC] [TIFF OMITTED] TR83AD04.007
Step 5. Compute the lower control limit (LCL1) for the mean of the first sample using RE as the desired mean as follows:[GRAPHIC] [TIFF OMITTED] TR83AD04.008 where: RE is the applicable EPCA nominal full-load efficiency when the test is to determine compliance with the applicable statutory standard, or is the labeled nominal full-load efficiency when the test is to determine compliance with the labeled efficiency value, and t is the 2.5th percentile of a t-distribution for a sample size of n1, which yields a 97.5 percent confidence level for a one-tailed t-test.
Step 6. Compare the mean of the first sample (XX1) with the lower control limit (LCL1) to determine one of the following:
(i) If the mean of the first sample is below the lower control limit, then the basic model is in non-compliance and testing is at an end.
(ii) If the mean is equal to or greater than the lower control limit, no final determination of compliance or non-compliance can be made; proceed to Step 7.
Step 7. Determine the recommended sample size (n) as follows:
[GRAPHIC] [TIFF OMITTED] TR83AD04.009
where S1, RE and t have the values used in Steps 3 and 5, respectively. The factor[GRAPHIC] [TIFF OMITTED] TR83AD04.010 is based on a 20 percent tolerance in the total power loss at full-load and fixed output power.
Given the value of n, determine one of the following:
(i) If the value of n is less than or equal to n1 and if the mean energy efficiency of the first sample (XX1) is equal to or greater than the lower control limit (LCL1), the basic model is in compliance and testing is at an end.
(ii) If the value of n is greater than n1, the basic model is in non-compliance. The size of a second sample n2 is determined to be the smallest integer equal to or greater than the difference n-n1. If the value of n2 so calculated is greater than 20-n1, set n2 equal to 20-n1.
Step 8. Compute the combined (XX2) mean of the measured energy performance of the n1 and n2 units of the combined first and second samples as follows:[GRAPHIC] [TIFF OMITTED] TR83AD04.011
Step 9. Compute the standard error (SE(XX2)) of the mean full-load efficiency of the n1 and n2 units in the combined first and second samples as follows:[GRAPHIC] [TIFF OMITTED] TR83AD04.012 (Note that S1 is the value obtained above in Step 3.)
Step 10. Set the lower control limit (LCL2) to,
[GRAPHIC] [TIFF OMITTED] TR83AD04.013
where t has the value obtained in Step 5, and compare the combined sample mean (XX2) to the lower control limit (LCL2) to find one of the following:
(i) If the mean of the combined sample (XX2) is less than the lower control limit (LCL2), the basic model is in non-compliance and testing is at an end.
(ii) If the mean of the combined sample (XX2) is equal to or greater than the lower control limit (LCL2), the basic model is in compliance and testing is at an end.
Manufacturer-Option Testing
If a determination of non-compliance is made in Steps 6, 7 or 10, of this appendix A, the manufacturer may request that additional testing be conducted, in accordance with the following procedures.
Step A. The manufacturer requests that an additional number, n3, of units be tested, with n3 chosen such that n1 + n2 + n3 does not exceed 20.
Step B. Compute the mean full-load efficiency, standard error, and lower control limit of the new combined sample in accordance with the procedures prescribed in Steps 8, 9, and 10, of this appendix A.
Step C. Compare the mean performance of the new combined sample to the lower control limit (LCL2) to determine one of the following:
(a) If the new combined sample mean is equal to or greater than the lower control limit, the basic model is in compliance and testing is at an end.
(b) If the new combined sample mean is less than the lower control limit and the value of n1 + n2 + n3 is less than 20, the manufacturer may request that additional units be tested. The total of all units tested may not exceed 20. Steps A, B, and C are then repeated.
(c) Otherwise, the basic model is determined to be in non-compliance.