[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: 10CFR431.196]
[Page 345-348]
TITLE 10--ENERGY
CHAPTER II--DEPARTMENT OF ENERGY
PART 431_ENERGY EFFICIENCY PROGRAM FOR CERTAIN COMMERCIAL AND INDUSTRIAL
EQUIPMENT--Table of Contents
Subpart K_Enforcement
Sec. 431.196 Hearings and appeals.
(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
[[Page 346]]
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.
(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.
(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.
(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
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apply with respect to the function of the Secretary under this section.
Appendix A to Subpart K 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 (X1 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(X1)) 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 (X1) 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 (X1) 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 (X2) 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(X2)) 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 (X2) to the lower control limit (LCL2)
to find one of the following:
(i) If the mean of the combined sample (X2) 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 (X2) is equal to
or greater than the lower control limit (LCL2), the basic
model is in compliance and testing is at an end.
[[Page 348]]
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.