[Federal Register Volume 60, Number 54 (Tuesday, March 21, 1995)]
[Rules and Regulations]
[Pages 15015-15017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6798]
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DEPARTMENT OF ENERGY
10 CFR Parts 430, 765, and 766
Payments Equal to Taxes Provisions of the Nuclear Waste Policy
Act of 1982, As Amended, Interpretation and Procedures
AGENCY: Office of Hearings and Appeals, DOE.
ACTION: Final rule; technical amendments.
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[[Page 15016]]
SUMMARY: The Department is amending four rules which provide for
adjudications by the Office of Hearings and Appeals (OHA), in order to
conform them to OHA procedural regulations contained in a new part 1003
of chapter X, being published elsewhere in this issue of the Federal
Register. This change of procedural references will not substantively
affect the remedies provided under those rules. The Department is also
amending certain rules to make clear its original intent that an appeal
must be taken with OHA in order to exhaust administrative remedies.
EFFECTIVE DATE: These rules become effective April 20, 1995.
FOR FURTHER INFORMATION CONTACT: Roger Klurfeld, Assistant Director,
Office of Hearings and Appeals, U.S. Department of Energy, 1000
Independence Avenue, SW., Washington, DC 20585, Telephone: 202-586-
2383, Internet: roger.klurfeld@hq.doe.gov.
SUPPLEMENTARY INFORMATION: OHA is a quasi-judicial body reporting to
the Secretary of Energy. It is responsible for conducting most informal
adjudicative proceedings of DOE where there is provision for separation
of functions, other than those which are subject to the jurisdiction of
the Federal Energy Regulatory Commission. Until today, procedural
regulations governing OHA practice appeared mainly in part 205 of title
10 of the Code of Federal Regulations. Part 205, however, was designed
to apply to matters involving the former oil price and allocation
control regulations which were in effect during the period 1973 through
January 1981. Because those oil-related proceedings are winding down,
and the OHA is conducting a variety of other informal adjudications for
the Department, the OHA procedural regulations have been organized as a
new part 1003 within chapter X of title 10, which contains the general
provisions of DOE regulations. Part 205 will continue to be used only
to adjudicate matters which relate specifically to the federal oil
regulations, while new part 1003 will be used for adjudicating most
other matters within OHA's jurisdiction.
The procedures codified in part 1003 become applicable where
program rules specifically reference them and state that a member of
the public can make a request for relief under these rules. Four
program rules or regulations currently reference part 205 procedures
where the new part 1003 procedures would be more appropriate.
Accordingly, DOE hereby is updating those references as follows. Until
today, the program regulations that the Department promulgated in the
Energy Conservation Program for Consumer Products, 10 CFR part 430,
have stated that any person receiving an order may file an appeal with
OHA using that office's appellate rules provided in 10 CFR part 205,
subpart H. See 10 CFR 430.27(n). This provision is updated to reference
the new appeals procedure in 10 CFR part 1003, subpart C. The same
change is made in program regulations contained in 10 CFR part 765
(Reimbursement for Costs of Remedial Action at Active Uranium and
Thorium Processing Sites) and 10 CFR part 766 (Uranium Enrichment
Decontamination and Decommissioning Fund; Procedures for Special
Assessment of Domestic Utilities). See 10 CFR 765.22(b) and 10 CFR
766.104(d). Finally, the Department stated in implementing the
Payments-Equal-to-Taxes (PETT) provisions of the Nuclear Waste Policy
Act of 1982, as amended, that an entity may file an appeal with OHA of
a DOE PETT determination using the OHA's 10 CFR part 205, subpart H
appellate rules. See Payments-Equal-To-Taxes Provisions of the Nuclear
Waste Policy Act of 1982, as Amended, Interpretation and Procedures, as
published in the Federal Register on August 27, 1991 (56 FR 42314). The
reference on page 42319, column 2, of that notice to ``10 CFR part 205
subpart H'' is hereby changed to ``10 CFR part 1003, subpart C.''
Therefore, persons following procedures for the PETT provisions should
now refer to 10 CFR part 1003, subpart C.
The procedural rules contained in the new 10 CFR part 1003, subpart
C, correspond to nearly identical procedural rules contained in
previously applicable 10 CFR part 205, subpart H. Thus, the foregoing
conforming amendments adopted today merely change the procedural
references and do not substantively affect the remedies available to
aggrieved parties under the affected program rules.
It has always been the intent of DOE to require parties to pursue
an administrative appeal prior to seeking judicial review. The Supreme
Court has interpreted section 10(c) of the Administrative Procedure Act
(APA) (5 U.S.C. 704) to provide that, with respect to actions brought
under the APA, an administrative appeal is a prerequisite to judicial
review only when expressly required by statute or when an agency rule
requires appeal before review and the administrative action is made
inoperative pending that review. Darby v. Cisneros, 113 S. Ct. 2539,
125 L. Ed. 2d 113 (1993). Accordingly, the Department is also amending
two program rules to make clear its original intent that a person who
receives an order from program officials must file an appeal with OHA
and await the issuance of an order granting or denying the appeal in
order to exhaust administrative remedies. The two programs are 10 CFR
part 430 regarding consumer products and PETT determinations under the
Nuclear Waste Policy Act of 1982. With respect to the rule on PETT
determinations, as published in the Federal Register on August 27, 1991
(56 FR 42314), the phrase on page 42319, column 2, that ``Appeals may
be filed with the Office of Hearings and Appeals (OHA)'' is modified to
read ``In order to exhaust administrative remedies, appeals must be
filed with the Office of Hearings and Appeals (OHA)''.1 The
specific changes to part 430 are set forth later in this notice.
\1\The affected provision in the PETT rule, with all changes
made today, now reads:
D. Appeals Process
An appeals process is available for those jurisdictions which
are challenging the original DOE determination related to PETT. In
order to exhaust administrative remedies, appeals must be filed with
the Office of Hearings and Appeals (OHA), U.S. Department of Energy,
1000 Independence Avenue, SW., Washington, DC 20585. The appeal must
be filed within 45 days from the date of issuance of an original DOE
determination related to PETT. Appeals will be governed by
procedures set forth in 10 CFR part 1003, subpart C. [56 FR at
42319.]
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Finally, a slight, nonsubstantive stylistic change is made in part
765.
List of Subjects
10 CFR Part 430
Administrative Practice and Procedure, Energy Conservation,
Household Appliances.
10 CFR Part 765
Radioactive materials, Reclamation, Reporting and recordkeeping
requirements, Uranium.
10 CFR Part 766
Confidential Business Information, Electric Power Rates, Electric
Utilities, Nuclear Materials, Radioactive Materials, Reclamation,
Reporting and Recordkeeping Requirements, Uranium, Waste Treatment and
Disposal.
Issued in Washington, DC on March 14, 1995.
George B. Breznay,
Director, Office of Hearings and Appeals.
For the reasons set forth in the preamble, 10 CFR parts 430, 765
and 766 are amended as set forth below: [[Page 15017]]
PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS
1. The authority citation for part 430 continues to read as
follows:
Authority: 42 U.S.C. 6291-6309.
Sec. 430.27 [Amended]
2. Section 430.27(n) is amended by adding at the beginning of the
paragraph the phrase ``In order to exhaust administrative remedies,'',
by revising the word ``may'' to read ``must'', and by revising the
reference to ``10 CFR part 205, subpart H'' to read ``10 CFR part 1003,
subpart C''.
PART 765--REIMBURSEMENT FOR COSTS OF REMEDIAL ACTION AT ACTIVE
URANIUM AND THORIUM PROCESSING SITES
3. The authority citation for part 765 continues to read as
follows:
Authority: Sections 1001-1004 of Pub. L. No. 102-486, 106 Stat.
2776 (42 U.S.C. 2296a et seq.)
4. Section 765.22(b) (third sentence) is revised to read as
follows:
Sec. 765.22 Appeals procedures.
(a) * * *
(b) * * * Appeals must comply with the procedures set forth in 10
CFR part 1003, subpart C. * * *
PART 766--URANIUM ENRICHMENT DECONTAMINATION AND DECOMMISSIONING
FUND; PROCEDURES FOR SPECIAL ASSESSMENT OF DOMESTIC UTILITIES
5. The authority citation for part 766 continues to read as
follows:
Authority: 42 U.S.C. 2201, 2297g, 2297g-1, 2297g-2, 7254.
Sec. 766.104 [Amended]
6. Section 766.104(d) (second sentence) is amended by revising ``10
CFR part 205, subpart H'' to read ``10 CFR part 1003, subpart C''.
[FR Doc. 95-6798 Filed 3-20-95; 8:45 am]
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