(a) Orders generally. When the Executive Assistant Director determines that a facility is in violation of any of the requirements of this part, the Executive Assistant Director may take appropriate action including the issuance of an appropriate Order.

(b) Orders Assessing Civil Penalty and Orders to Cease Operations. (1) Where the Executive Assistant Director determines that a facility is in violation of an Order issued pursuant to paragraph (a) of this section, the Executive Assistant Director may enter an Order Assessing Civil Penalty, Order to Cease Operations, or both.

(2) Following the issuance of an Order by the Executive Assistant Director pursuant to paragraph (b)(1) of this section, the facility may enter further consultations with the Department.

(3) Where the Executive Assistant Director determines that a facility is in violation of an Order issued pursuant to paragraph (a) of this section and issues an Order Assessing Civil Penalty pursuant to paragraph (b)(1) of this section, a chemical facility is liable to the United States for a civil penalty of not more than $25,000 for each day during which the violation continues, if the violation of the Order occurred on or before November 2, 2015, or $41,093 for each day during which the violation of the Order continues, if the violation occurred after November 2, 2015.

(c) Procedures for Orders. (1) At a minimum, an Order shall be signed by the Executive Assistant Director, shall be dated, and shall include:

(i) The name and address of the facility in question;

(ii) A listing of the provision(s) that the facility is alleged to have violated;

(iii) A statement of facts upon which the alleged instances of noncompliance are based;

(iv) A clear explanation of deficiencies in the facility's chemical security program, including, if applicable, any deficiencies in the facility's Security Vulnerability Assessment, Site Security Plan, or both;

(v) A statement indicating what action(s) the facility must take to remedy the instance(s) of noncompliance; and

(vi) The date by which the facility must comply with the terms of the Order.

(2) The Executive Assistant Director may establish procedures for the issuance of Orders.

(d) A facility must comply with the terms of the Order by the date specified in the Order unless the facility has filed a timely Notice of Application for Review under § 27.310.

(e) Where a facility or other person contests the determination of the Executive Assistant Director to issue an Order, a chemical facility may seek an adjudication pursuant to § 27.310.

(f) An Order issued under this section becomes final agency action when the time to file a Notice of Application for Review under § 27.310 has passed without such a filing or upon the conclusion of adjudication or appeal proceedings under this subpart.

[72 FR 17729, Apr. 9, 2007, as amended at 81 FR 43001, July 1, 2016; 82 FR 8579, Jan. 27, 2017; 83 FR 13834, Apr. 2, 2018; 84 FR 13508, Apr. 5, 2019; 85 FR 36478, June 17, 2020; 86 FR 41892, Aug. 4, 2021; 86 FR 57539, Oct. 18, 2021; 87 FR 1326, Jan. 11, 2022; 88 FR 2182, Jan. 13, 2023]

(a) Any facility or other person who has received a Finding pursuant to § 27.230(a)(12)(iv), a Determination pursuant to § 27.245(b), or an Order pursuant to § 27.300 is entitled to an adjudication, by a neutral adjudications officer, of any issue of material fact relevant to any administrative action that deprives that person of a cognizable interest in liberty or property.

(b) A neutral adjudications officer appointed pursuant to § 27.315 shall issue an Initial Decision on any material factual issue related to a Finding pursuant to § 27.230(a)(12)(iv), a Determination pursuant to § 27.245, or an Order pursuant to § 27.300 before any such administrative action is reviewed on appeal pursuant to § 27.345.

[72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41892, Aug. 4, 2021]

(a) Proceedings instituted by facilities or other persons. A facility or other person may institute proceedings to review a determination by the Executive Assistant Director:

(1) Finding, pursuant to the § 27.230(a)(12)(iv), that an individual is a potential security threat;

(2) Disapproving a Site Security Plan pursuant to § 27.245(b); or

(3) Issuing an Order pursuant to § 27.300(a) or (b).

(b) Procedure for applications by facilities or other persons. A facility or other person may institute Proceedings by filing a Notice of Application for Review specifying that the facility or other person requests a Proceeding to review a determination specified in paragraph (a) of this section.

(1) An Applicant institutes a Proceeding by filing a Notice of Application for Review.

(2) An Applicant must file a Notice of Application for Review within seven calendar days of notification to the facility or other person of the Executive Assistant Director's Finding, Determination, or Order.

(3) The Applicant shall file and simultaneously serve each Notice of Application for Review and all subsequent filings on the Executive Assistant Director and the Office of the Chief Counsel.

(4) An Order is stayed from the timely filing of a Notice of Application for Review until the Presiding Officer issues an Initial Decision, unless the Secretary has lifted the stay due to exigent circumstances pursuant to paragraph (d) of this section.

(5) The Applicant shall file and serve an Application for Review within 14 calendar days of the notification to the facility or other person of the Executive Assistant Director's Finding, Determination, or Order.

(6) Each Application for Review shall be accompanied by all legal memoranda, other documents, declarations, affidavits, and other evidence supporting the position asserted by the Applicant.

(c) Response. The Executive Assistant Director, through the Office of the Chief Counsel, shall file and serve a Response, accompanied by all legal memoranda, other documents, declarations, affidavits, and other evidence supporting the position asserted by the Executive Assistant Director within 14 calendar days of the filing and service of the Application for Review and all supporting papers.

(d) Procedural modifications. The Secretary may, in exigent circumstances (as determined in his or her sole discretion):

(1) Lift any stay applicable to any Order under § 27.300;

(2) Modify the time for a response;

(3) Rule on the sufficiency of Applications for Review; or

(4) Otherwise modify these procedures with respect to particular matters.

[72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41892, Aug. 4, 2021]

(a) Immediately upon the filing of any Application for Review, the Secretary shall appoint an attorney, who is employed by the Department and who has not performed any investigative or prosecutorial function with respect to the matter, to act as a neutral adjudications officer or Presiding Officer for the compilation of a factual record and the recommendation of an Initial Decision for each Proceeding.

(b) Notwithstanding paragraph (a) of this section, the Secretary may appoint one or more attorneys who are employed by the Department and who do not perform any investigative or prosecutorial function with respect to this subpart, to serve, generally, in the capacity as Presiding Officer(s) for such matters pursuant to such procedures as the Secretary may hereafter establish.

[72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41892, Aug. 4, 2021]

(a) At no time after the designation of a Presiding Officer for a Proceeding and prior to the issuance of a Final Decision pursuant to § 27.345 with respect to a facility or other person, shall the appointed Presiding Officer, or any person who will advise that official in the decision on the matter, discuss ex parte the merits of the proceeding with any interested person outside the Department, with any Department official who performs a prosecutorial or investigative function in such proceeding or a factually related proceeding, or with any representative of such person.

(b) If, after appointment of a Presiding Officer and prior to the issuance of a Final Decision pursuant to § 27.345 with respect to a facility or other person, the appointed Presiding Officer, or any person who will advise that official in the decision on the matter, receives from or on behalf of any party, by means of an ex parte communication, information that is relevant to the decision of the matter and to which other parties have not had an opportunity to respond, a summary of such information shall be served on all other parties, who shall have an opportunity to reply to the ex parte communication within a time set by the Presiding Officer.

(c) The consideration of classified information or CVI pursuant to an in camera procedure does not constitute a prohibited ex parte communication for purposes of this subpart.

[72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41892, Aug. 4, 2021]

The Executive Assistant Director bears the initial burden of proving the facts necessary to support the challenged administrative action at every proceeding instituted under this subpart.

[72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41892, Aug. 4, 2021]

(a) The Presiding Officer appointed for each Proceeding shall immediately consider whether the summary adjudication of the Application for Review is appropriate based on the Application for Review, the Response, and all the supporting filings of the parties pursuant to §§ 27.310(b)(5) and 27.310(c).

(1) The Presiding Officer shall promptly issue any necessary scheduling order for any additional briefing of the issue of summary adjudication on the Application for Review and Response.

(2) The Presiding Officer may conduct scheduling conferences and other proceedings that the Presiding Officer determines to be appropriate.

(b) If the Presiding Officer determines that there is no genuine issue of material fact and that one party or the other is entitled to a decision as a matter of law, then the record shall be closed and the Presiding Officer shall issue an Initial Decision on the Application for Review pursuant to § 27.340.

(c) If a Presiding Officer determines that any factual issues require the cross-examination of one or more witnesses or other proceedings at a hearing, the Presiding Officer, in consultation with the parties, shall promptly schedule a hearing to be conducted pursuant to § 27.335.

[72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41892, Aug. 4, 2021]

(a) Any hearing shall be held as expeditiously as possible at the location most conducive to a prompt presentation of any necessary testimony or other proceedings.

(1) Videoconferencing and teleconferencing may be used where appropriate at the discretion of the Presiding Officer.

(2) Each party offering the affirmative testimony of a witness shall present that testimony by declaration, affidavit, or other sworn statement submitted in advance as ordered by the Presiding Officer.

(3) Any witness presented for further examination shall be asked to testify under an oath or affirmation.

(4) The hearing shall be recorded verbatim.

(b)(1) A facility or other person may appear and be heard on his or her own behalf or through any counsel of his or her choice who is qualified to possess CVI.

(2) A facility or other person individually, or through counsel, may offer relevant and material information including written direct testimony, which he or she believes should be considered in opposition to the administrative action, or which may bear on the sanction being sought.

(3) The facility or other person individually, or through counsel, may conduct such cross-examination as may be specifically allowed by the Presiding Officer for a full determination of the facts.

[72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41892, Aug. 4, 2021]

(a) The Presiding Officer shall close and certify the record of the adjudication promptly upon the completion of:

(1) Summary judgment proceedings,

(2) A hearing, if necessary,

(3) The submission of post hearing briefs, if any are ordered by the Presiding Officer, and

(4) The conclusion of oral arguments, if any are permitted by the Presiding Officer.

(b) The Presiding Officer shall issue an Initial Decision based on the certified record, and the decision shall be subject to appeal pursuant to § 27.345.

(c) An Initial Decision shall become a final agency action on the expiration of the time for an Appeal pursuant to § 27.345.

(a) Right to appeal. A facility or any person who has received an Initial Decision under § 27.340(b) has the right to appeal to the Director acting as a neutral appeals officer.

(b) Procedure for appeals. (1) The Executive Assistant Director, a facility or other person, or a representative on behalf of a facility or person, may institute an Appeal by filing a Notice of Appeal with the office of the Department hereinafter designated by the Secretary.

(2) The Executive Assistant Director, a facility, or other person must file a Notice of Appeal within seven calendar days of the service of the Presiding Officer's Initial Decision.

(3) The Appellant shall file with the designated office and simultaneously serve each Notice of Appeal and all subsequent filings on the Office of the Chief Counsel.

(4) An Initial Decision is stayed from the timely filing of a Notice of Appeal until the Director issues a Final Decision, unless the Secretary lifts the stay due to exigent circumstances pursuant to § 27.310(d).

(5) The Appellant shall file and serve a Brief within 28 calendar days of the notification of the service of the Presiding Officer's Initial Decision.

(6) The Appellee shall file and serve its Opposition Brief within 28 calendar days of the service of the Appellant's Brief.

(c) The Director may provide for an expedited appeal for appropriate matters.

(d) Ex parte communications. (1) At no time after the filing of a Notice of Appeal pursuant to paragraph (b)(1) of this section and prior to the issuance of a Final Decision on an Appeal pursuant to paragraph (f) of this section with respect to a facility or other person shall the Director, his or her designee, or any person who will advise that official in the decision on the matter, discuss ex parte the merits of the proceeding with any interested person outside the Department, with any Department official who performs a prosecutorial or investigative function in such proceeding or a factually related proceeding, or with any representative of such person.

(2) If, after the filing of a Notice of Appeal pursuant to paragraph (b)(1) of this section and prior to the issuance of a Final Decision on an Appeal pursuant to paragraph (f) of this section with respect to a facility or other person, the Director, his or her designee, or any person who will advise that official in the decision on the matter, receives from or on behalf of any party, by means of an ex parte communication, information that is relevant to the decision of the matter and to which other parties have not had an opportunity to respond, a summary of such information shall be served on all other parties, who shall have an opportunity to reply to the ex parte communication within a time set by the Director or his or her designee.

(3) The consideration of classified information or CVI pursuant to an in camera procedure does not constitute a prohibited ex parte communication for purposes of this subpart.

(e) A facility or other person may elect to have the Director participate in any mediation or other resolution process by expressly waiving, in writing, any argument that such participation has compromised the Appeal process.

(f) The Director shall issue a Final Decision and serve it upon the parties. A Final Decision made by the Director constitutes final agency action.

(g) The Secretary may establish procedures for the conduct of Appeals pursuant to this section.

[72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41893, Aug. 4, 2021]