[Code of Federal Regulations]
[Title 10, Volume 3]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 10CFR430.74]

[Page 295-296]
 
                            TITLE 10--ENERGY
 
                    CHAPTER II--DEPARTMENT OF ENERGY
 
PART 430_ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS--Table of 
Contents
 
                 Subpart F_Certification and Enforcement
 
Sec. 430.74  Hearings and appeals.

    (a) Pursuant to section 333(d) of the Act, before issuing an order 
assessing a civil penalty against any person under this section, the 
Secretary shall provide to such person notice of the proposed penalty. 
Such notice shall inform such person of that person's opportunity to 
elect in writing within 30 days after the date of receipt of such 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 an election is made within 30 calendar days after 
receipt of notice under paragraph (a) of this section to have paragraph 
(c) of this section apply with respect to such penalty, the Secretary 
shall assess the penalty, by order, after a determination of violation 
has been made on the record after an opportunity for an agency hearing 
pursuant to section 554 of title 5, United States Code, before an 
administrative law judge appointed under section 3105 of such title 5. 
Such assessment order shall include the administrative law judge's 
findings and the basis for such assessment.
    (2) Any person against whom a penalty is assessed under this section 
may, within 60 calendar days after the date of the order of the 
Secretary assessing such penalty, institute an action in the United 
States Court of Appeals for the appropriate judicial circuit for 
judicial review of such order in accordance with chapter 7 of title 5, 
United States Code. The court shall 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 section have been elected, the Secretary shall 
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.

[[Page 296]]

    (2) If the civil penalty has not been paid within 60 calendar days 
after the assessment has been made under paragraph (c)(1) of this 
section, the Secretary shall institute an action in the appropriate 
District Court of the United States for an order affirming the 
assessment of the civil penalty. The court shall have authority to 
review de novo the law and the facts involved and shall have 
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 may not be revoked 
except 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 shall 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 shall not be subject to review.
    (e)(1) In accordance with the provisions of section 333(d)(5)(A) 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 Secretary shall be represented by the General Counsel of the 
Department of Energy (or any attorney or attorneys within DOE designated 
by the Secretary) who shall 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 shall 
consult with the Attorney General concerning such litigation and the 
Attorney General shall provide, on request, such assistance in the 
conduct of such litigation as may be appropriate.
    (2) In accordance with the provisions of section 333(d)(5)(B) of the 
Act, and subject to the provisions of section 502(c) of the Department 
of Energy Organization Act, the Secretary shall 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) of the 
Act, section 402(d) of the Department of Energy Organization Act shall 
not apply with respect to the function of the Secretary under this 
section.