[Federal Register Volume 60, Number 54 (Tuesday, March 21, 1995)]
[Rules and Regulations]
[Pages 15004-15015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6797]
[[Page 15003]]
_______________________________________________________________________
Part II
Department of Energy
_______________________________________________________________________
10 CFR Part 1003 et al.
Office of Hearings and Appeals Procedural Regulations; Payments Equal
to Taxes Provisions of the Nuclear Waste Policy Act of 1982, As
Amended, Interpretation and Procedures; Final Rules
Federal Register / Vol. 60, No. 54 / Tuesday, March 21, 1995 / Rules
and Regulations
[[Page 15004]]
DEPARTMENT OF ENERGY
10 CFR Part 1003
RIN 1901-AA55
Office of Hearings and Appeals Procedural Regulations
AGENCY: Office of Hearings and Appeals, DOE.
ACTION: Final rule.
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SUMMARY: The Department of Energy (DOE) amends its regulations by
adding a new part to contain procedural regulations governing
proceedings before the Office of Hearings and Appeals (OHA), a quasi-
judicial branch of the DOE, pertaining to matters within the
jurisdiction of that Office. These rules streamline and distill the
procedures governing the conduct of proceedings before the OHA and
update pertinent filing information. They will be used by OHA in most
cases that do not involve the former federal petroleum price and
allocation control regulations.
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:
I. Discussion
II. Procedural Requirements
I. Discussion
The Office of Hearings and Appeals (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. In connection
with these duties, OHA holds hearings, receives evidence, develops the
record, and issues final agency determinations, which are subject to
review in the federal courts. Except for regulations governing
proceedings before the Board of Contract Appeals and other procurement
and financial assistance appeals boards in DOE (which are independent
components of the Office of Hearings and Appeals and governed by their
own rules), procedural regulations governing OHA practice generally
have appeared before today in part 205 of title 10 of the Code of
Federal Regulations. Part 205 is a part of chapter II, subchapter A of
the DOE regulations, and 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. Part 205 will be
retained until the remaining oil-related proceedings are completed.
Because those oil-related proceedings are winding down, and the OHA is
conducting a variety of other informal adjudications for the
Department, it is now appropriate that the OHA procedural regulations
should appear in chapter X of title 10, which contains the general
provisions of DOE regulations. The rules issued today will be organized
as a new part 1003 within chapter X, and will be used by OHA in most
cases that do not involve the former federal petroleum regulations. At
the same time, these new procedures governing the conduct of
proceedings before the OHA have been streamlined, and pertinent filing
information has been updated.
A Notice of Proposed Rulemaking was published in the Federal
Register on July 7, 1994 (59 FR 34767). No comments were received.
Apart from general filing procedures, the regulations issued today
set forth OHA procedures for adjudicating various applications,
petitions, motions and related requests filed by the public. These
regulations include procedures for the filing of: (1) Applications for
Exception from a DOE rule, regulation or action having the effect of a
rule as defined by 5 U.S.C. 551(4); (2) Appeals of DOE orders; (3)
Applications for Stay of DOE orders; (4) Motions for Modification or
Rescission of OHA orders; (5) Requests for Conferences and Hearings
before OHA; and (6) Petitions for Special Redress or Other Relief.
These rules are not intended to grant by themselves any new
authority to the Office of Hearings and Appeals to conduct informal
adjudications. They are designed to provide standard procedural rules
that may be used to cover a variety of situations that may be
encountered by the many different programs that the Department
implements.
There are two ways these regulations become applicable. First, the
procedures outlined in these rules 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. For example, the
program regulations that the Department promulgated in the Energy
Conservation Program for Consumer Products state that any person
receiving an order may file an appeal with the Office of Hearings and
Appeals using that Office's appellate rules. See 10 CFR
430.27(n).1
\1\ Elsewhere in today's Federal Register, DOE is changing
existing references in program rules from part 205 to part 1003. For
instance, the DOE is modifying section 430.27(n) of 10 CFR part 430
(DOE Energy Conservation Program for Consumer Products) to provide
that an aggrieved person filing an appeal under that part shall
proceed under subpart C of the new part 1003, in place of subpart H
of part 205. Future rulemakings which invoke OHA's adjudicatory
authority will refer to the rules contained in part 1003 as the
operative administrative process.
Second, these rules may be applicable where a statute requires or
authorizes the Department to provide procedures that permit the public
to seek redress, and the appropriate departmental official has
delegated the responsibility to implement that requirement to the
Office of Hearings and Appeals. For example, section 504 (42 U.S.C.
7194) of the Department of Energy Organization Act (DOE Act) (42 U.S.C.
7101 et seq.) requires the Secretary of Energy to provide for the
making of adjustments to a rule or regulation issued under four
statutes--the Emergency Petroleum Allocation Act of 1973 (since
expired), the Federal Energy Administration Act of 1974 (FEAA), the
Energy Supply and Environmental Coordination Act of 1974, and the
Energy Policy and Conservation Act--as may be necessary to prevent
special hardship, inequity, or unfair distribution of burdens. The
Secretary has delegated that responsibility to the Office of Hearings
and Appeals, which is promulgating procedures in subpart B today by
which members of the public may seek an exception from rules or
regulations issued under the three named statutes which remain in
effect.2 (See also part 205, subpart D, for exception provisions
applicable to the oil program.)
\2\ Similarly under delegation to OHA, persons may petition for
relief under subpart G (Private Grievances and Redress) with respect
to those program functions assigned to DOE under the FEAA which are
not oil related. (See FEAA section 21, 15 U.S.C. 780.)
Despite the establishment of standard procedures in these rules,
there may be situations where the Office of Hearings and Appeals needs
to use procedures specific to the particular needs of a program. In
those situations, DOE program regulations themselves contain procedures
governing OHA proceedings conducted under authority of those particular
regulations, rather than a reference to OHA procedural rules. For
example, the DOE Contractor Employee Protection Program contains
procedural rules governing OHA proceedings under 10 CFR part 708.
Similarly, procedural [[Page 15005]] rules governing OHA proceedings
involving eligibility for access to classified matter or special
nuclear material are contained in 10 CFR part 710. Under these
circumstances, the rules in the program rules would govern OHA
proceedings in those matters, and the rules in part 1003 would not
apply.
With the exception of the regulations governing the filing and
adjudication of an Application for Exception, the rules promulgated
today correspond to nearly identical procedural rules contained in 10
CFR part 205, which were promulgated in the 1970's to adjudicate
matters relating to the federal oil regulations. Regulations concerning
the filing and adjudication of an Application for Exception have been
revised and are contained in 10 CFR part 1003, subpart B. Generally, an
Application for Exception may be filed by a person seeking an exception
from a DOE regulatory requirement, where such relief is authorized by
the pertinent regulations or underlying statute. Similar to the
regulations appearing in 10 CFR part 205, subpart D, the rules
promulgated today provide that an aggrieved person may file an
Application for Exception from a DOE regulation on the basis that the
specific regulatory requirement results in a serious hardship, gross
inequity or unfair distribution of burdens. The rules set forth in part
1003, subpart B, present a simpler procedure than the rules in part
205, subpart D, by (1) eliminating the issuance of a Proposed Decision
and Order and related procedures prior to issuance of a final Decision
and Order, and (2) providing for an administrative appeal of the final
Decision and Order by an aggrieved party directly to OHA, except in
exception proceedings brought under section 504 of the DOE Act which
will continue to be appealable to the Federal Energy Regulatory
Commission. The rules make the adjudication of Applications for
Exception more effective since they are more practicable than the more
complex procedures of part 205, subpart D, which were formulated in
contemplation of the federal oil regulations.
It is 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, new 10 CFR 1003.30 provides that
a person aggrieved by a DOE order appealable under subpart C of these
regulations has not exhausted administrative remedies until an appeal
has been filed and an order granting or denying the appeal has been
issued. In addition, section 1003.30 provides that a person filing an
appeal must also file an ``Application for Stay'' under subpart D of
part 1003 if the grant of such a stay is necessary to render the
administrative action inoperable and thus preclude judicial review
pending final OHA action on the appeal.
II. Procedural Requirements
A. Executive Order 12866
Today's regulatory action has been determined not to be a
``significant regulatory action'' under Executive Order 12866,
``Regulatory Planning and Review'' (58 FR 51735, October 4, 1993).
Accordingly, today's action was not subject to review under the
Executive Order by the Office of Information and Regulatory Affairs.
B. Executive Order 12612
Executive Order 12612 requires that regulations or rules be
reviewed for direct effects on States, on the relationship between the
national government and the States, or in the distribution of power
among various levels of government. If there are sufficient substantial
direct effects, then Executive Order 12612 requires preparation of a
federalism assessment to be used in all decisions involved in
promulgating or implementing a regulation or rule.
Today's regulations do not affect any traditional State function.
There are therefore no substantial direct effects requiring evaluation
or assessment under Executive Order 12612.
C. Regulatory Flexibility Analysis
These regulations were reviewed under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.) which requires preparation of a regulatory
flexibility analysis for any regulations that will have a significant
economic impact on a substantial number of small entities. This action
essentially recodifies existing procedural regulations. DOE,
accordingly, certifies that there will not be a significant and adverse
economic impact on a substantial number of small entities and that
preparation of a regulatory flexibility analysis is not warranted.
D. National Environmental Policy Act
The rules issued today are strictly procedural in nature.
Preparation of an environmental assessment or environmental impact
statement under the National Environmental Policy Act of 1969, as
amended (42 U.S.C. 4321 et seq.) is not required for such rules under
Appendix A to subpart D of 10 CFR part 1021. More specifically, DOE has
determined that this rule is covered under the Categorical Exclusion
found in paragraph A.6 of Appendix A to subpart D of part 1021, which
applies to the establishment of procedural rulemakings. Accordingly,
neither an environmental assessment nor an environmental impact
statement is required.
E. Paperwork Reduction Act
There will be no additional paperwork burden imposed by the rules
issued today. Therefore, the goals of the Paperwork Reduction Act are
not diminished by the rules.
F. Review Under Executive Order 12778
Section 2 of Executive Order 12778 instructs each agency to adhere
to certain requirements in promulgating new regulations and reviewing
existing regulations. These requirements, set forth in sections 2(a)
and (b)(2), include eliminating drafting errors and needless ambiguity,
drafting the regulations to minimize litigation, providing clear and
certain legal standards for affected conduct, and promoting
simplification and burden reduction. Agencies are also instructed to
make every reasonable effort to ensure that the regulation specifies
clearly any preemptive effect, effect on existing federal law or
regulation, and retroactive effect; describes any administrative
proceedings to be available prior to judicial review and any provisions
for the exhaustion of such administrative proceedings; and defines key
terms. The DOE certifies that today's rule meets the requirements of
sections 2(a) and (b)(2) of Executive Order 12778.
List of Subjects in 10 CFR Part 1003
Administrative practice and procedure, Appeal procedures, Hearing
and appeal procedures, Practice and procedure.
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, title 10, chapter X of
the CFR is amended by adding a new part 1003 to read as set forth
below: [[Page 15006]]
PART 1003--OFFICE OF HEARINGS AND APPEALS PROCEDURAL REGULATIONS
Subpart A--General Provisions
Sec.
1003.1 Purpose and scope.
1003.2 Definitions.
1003.3 Appearance before the OHA.
1003.4 Filing of documents.
1003.5 Computation of time.
1003.6 Extension of time.
1003.7 Service.
1003.8 Subpoenas, special report orders, oaths, witnesses.
1003.9 General filing requirements.
1003.10 Effective date of orders.
1003.11 Address for filing documents.
1003.12 Ratification of prior directives, orders and actions.
1003.13 Public reference room.
1003.14 Notice of proceedings.
Subpart B--Exceptions
1003.20 Purpose and scope.
1003.21 What to file.
1003.22 Where to file.
1003.23 Notice.
1003.24 Contents.
1003.25 OHA evaluation.
1003.26 Decision and Order.
1003.27 Appeal of exception order.
Subpart C--Appeals
1003.30 Purpose and scope.
1003.31 Who may file.
1003.32 What to file.
1003.33 Where to file.
1003.34 Notice.
1003.35 Contents.
1003.36 OHA evaluation.
1003.37 Decision and Order.
Subpart D--Stays
1003.40 Purpose and scope.
1003.41 What to file.
1003.42 Where to file.
1003.43 Notice.
1003.44 Contents.
1003.45 OHA evaluation.
1003.46 Decision and Order.
Subpart E--Modification or Rescission
1003.50 Purpose and scope.
1003.51 What to file.
1003.52 Where to file.
1003.53 Notice.
1003.54 Contents.
1003.55 OHA evaluation.
1003.56 Decision and Order.
Subpart F--Conferences and Hearings
1003.60 Purpose and scope.
1003.61 Conferences.
1003.62 Hearings.
Subpart G--Private Grievances and Redress
1003.70 Purpose and scope.
1003.71 Who may file.
1003.72 What to file.
1003.73 Where to file.
1003.74 Notice.
1003.75 Contents.
1003.76 OHA evaluation of request.
1003.77 Decision and Order.
Authority: 15 U.S.C. 761 et seq.; 42 U.S.C. 7101 et seq.
Subpart A--General Provisions
Sec. 1003.1 Purpose and scope.
This part establishes the procedures to be utilized and identifies
the sanctions that are available in most proceedings before the Office
of Hearings and Appeals of the Department of Energy. These procedures
provide standard rules of practice in a variety of informal
adjudications when jurisdiction is vested in the Office of Hearings and
Appeals. Any or all of the procedures contained in this part may be
incorporated by reference in another DOE rule or regulation which
invokes the adjudicatory authority of the Office of Hearings and
Appeals. The procedures may also be made applicable at the direction of
an appropriate DOE official if incorporated by reference in the
delegation. These rules do not apply in instances in which DOE
regulations themselves contain procedures governing OHA proceedings
conducted under authority of those particular regulations. (E.g., 10
CFR part 708-DOE Contractor Employee Protection Program; 10 CFR part
710-Criteria and Procedures for Determining Eligibility for Access to
Classified Matter or Special Nuclear Material.) These rules also do not
apply to matters which relate specifically to the federal oil
regulations (10 CFR parts 210, 211, and 212) and which are governed by
the procedures contained in 10 CFR part 205, or to matters before the
DOE Board of Contract Appeals or other procurement and financial
assistance appeals boards, which are governed by their own rules.
Sec. 1003.2 Definitions.
(a) As used in this part:
Action means an order issued, or a rulemaking undertaken, by the
DOE.
Aggrieved, with respect to a person, means adversely affected by an
action of the DOE.
Conference means an informal meeting between the Office of Hearings
and Appeals and any person aggrieved by an action of the DOE.
Director means the Director of the Office of Hearings and Appeals
or duly authorized delegate.
DOE means the Department of Energy, created by the Department of
Energy Organization Act (42 U.S.C. 7101 et seq.).
Duly authorized representative means a person who has been
designated to appear before the Office of Hearings and Appeals in
connection with a proceeding on behalf of a person interested in or
aggrieved by an action of the DOE. Such appearance may consist of the
submission of a written document, a personal appearance, verbal
communication, or any other participation in the proceeding.
Exception means the waiver or modification of the requirements of a
rule, regulation or other DOE action having the effect of a rule as
defined by 5 U.S.C. 551(4) under a specific set of facts, pursuant to
subpart B of this part.
Federal legal holiday means the first day of January, the third
Monday of January, the third Monday of February, the last Monday of
May, the fourth day of July, the first Monday of September, the second
Monday of October, the eleventh day of November, the fourth Thursday of
November, the twenty-fifth day of December, or any other calendar day
designated as a holiday by federal statute or Executive order.
OHA means the Office of Hearings and Appeals of the Department of
Energy.
Order means the whole or a part of a final disposition, whether
affirmative, negative, injunctive, or declaratory in form, of DOE in a
matter other than rulemaking but including licensing. This definition
does not include internal DOE orders and directives issued by the
Secretary of Energy or delegate in the management and administration of
departmental elements and functions.
Person means any individual, firm, estate, trust, sole
proprietorship, partnership, association, company, joint-venture,
corporation, governmental unit or instrumentality thereof, or a
charitable, educational or other institution, and includes any officer,
director, owner or duly authorized representative thereof.
Proceeding means the process and activity, and any part thereof,
instituted by the OHA, either on its own initiative or in response to
an application, complaint, petition or request submitted by a person,
that may lead to an action by the OHA.
SRO means a special report order issued pursuant to Sec. 1003.8(b)
of this part.
(b) Throughout this part the use of a word or term in the singular
shall include the plural, and the use of the male gender shall include
the female gender.
Sec. 1003.3 Appearance before the OHA.
(a) A person may make an appearance, including personal appearances
in the discretion of the OHA, and participate in any proceeding
described in this part on his own behalf or by a duly authorized
representative. [[Page 15007]] Any application, appeal, petition, or
request filed by a duly authorized representative shall contain a
statement by such person certifying that he is a duly authorized
representative. Falsification of such certification will subject such
person to the sanctions stated in 18 U.S.C. 1001.
(b) Suspension and disqualification. The OHA may deny, temporarily
or permanently, the privilege of participating in proceedings,
including oral presentation, to any individual who is found by the
OHA--
(1) To have made false or misleading statements, either verbally or
in writing;
(2) To have filed false or materially altered documents, affidavits
or other writings;
(3) To lack the specific authority to represent the person seeking
an OHA action; or
(4) To have engaged in or to be engaged in contumacious conduct
that substantially disrupts a proceeding.
Sec. 1003.4 Filing of documents.
(a) Any document filed with the OHA must be addressed as required
by Sec. 1003.11, and should conform to the requirements contained in
Sec. 1003.9. All documents and exhibits submitted become part of an OHA
file and will not be returned.
(b) A document submitted in connection with any proceeding
transmitted by first class United States mail and properly addressed is
considered to be filed upon mailing.
(c) Hand-delivered documents to be filed with the OHA shall be
submitted to Room 1E-234 at 1000 Independence Avenue, S.W., Washington,
D.C., on business days between the hours of 2:00 p.m. and 4:30 p.m.
(d) Documents hand delivered or received electronically after
regular business hours are deemed filed on the next regular business
day.
Sec. 1003.5 Computation of time.
(a) Days. (1) Except as provided in paragraph (b) of this section,
in computing any period of time prescribed or allowed by these
regulations or by an order of the OHA, the day of the act, event, or
default from which the designated period of time begins to run is not
to be included. The last day of the period so computed is to be
included unless it is a Saturday, Sunday, or federal legal holiday, in
which event the period runs until the end of the next day that is not a
Saturday, Sunday, or a federal legal holiday.
(2) Saturdays, Sundays and federal legal holidays shall be excluded
from the computation of time when the period of time allowed or
prescribed is 7 days or less.
(b) Hours. If the period of time prescribed in an order issued by
the OHA is stated in hours rather than days, the period of time shall
begin to run upon actual notice of such order, whether by verbal or
written communication, to the person directly affected, and shall run
without interruption, unless otherwise provided in the order, or unless
the order is stayed, modified, suspended or rescinded. When a written
order is transmitted by verbal communication, the written order shall
be served as soon thereafter as is feasible.
(c) Additional time after service by mail. Whenever a person is
required to perform an act, to cease and desist therefrom, or to
initiate a proceeding under this part within a prescribed period of
time after issuance to such person of an order, notice or other
document and the order, notice or other document is served solely by
mail, 3 days shall be added to the prescribed period.
Sec. 1003.6 Extension of time.
When a document is required to be filed within a prescribed time,
an extension of time to file may be granted by the OHA upon good cause
shown.
Sec. 1003.7 Service.
(a) All documents required to be served under this part shall be
served personally or by first class United States mail, except as
otherwise provided.
(b) Service upon a person's duly authorized representative shall
constitute service upon that person.
(c) Official United States Postal Service receipts from certified
mailing shall constitute evidence of service.
Sec. 1003.8 Subpoenas, special report orders, oaths, witnesses.
(a) In accordance with the provisions of this section and as
otherwise authorized by law, the Director may sign, issue and serve
subpoenas; administer oaths and affirmations; take sworn testimony;
compel attendance of and sequester witnesses; control dissemination of
any record of testimony taken pursuant to this section; subpoena and
reproduce books, papers, correspondence, memoranda, contracts,
agreements, or other relevant records or tangible evidence including,
but not limited to, information retained in computerized or other
automated systems in possession of the subpoenaed person.
(b) The Director may issue a Special Report Order requiring any
person subject to the jurisdiction of the OHA to file a special report
providing information relating to the OHA proceeding, including but not
limited to written answers to specific questions. The SRO may be in
addition to any other reports required.
(c) The Director, for good cause shown, may extend the time
prescribed for compliance with the subpoena or SRO and negotiate and
approve the terms of satisfactory compliance.
(d) Prior to the time specified for compliance, but in no event
more than 10 days after the date of service of the subpoena or SRO, the
person upon whom the document was served may file a request for review
of the subpoena or SRO with the Director. The Director then shall
provide notice of receipt to the person requesting review, may extend
the time prescribed for compliance with the subpoena or SRO, and may
negotiate and approve the terms of satisfactory compliance.
(e) If the subpoena or SRO is not modified or rescinded within 10
days of the date of the Director's notice of receipt:
(1) The subpoena or SRO shall be effective as issued; and
(2) The person upon whom the document was served shall comply with
the subpoena or SRO within 20 days of the date of the Director's notice
of receipt, unless otherwise notified in writing by the Director.
(f) There is no administrative appeal of a subpoena or SRO.
(g) A subpoena or SRO shall be served upon a person named in the
document by delivering a copy of the document to the person named.
(h) Delivery of a copy of a subpoena or SRO to a natural person may
be made by:
(1) Handing it to the person;
(2) Leaving it at the person's office with the person in charge of
the office;
(3) Leaving it at the person's dwelling or usual place of abode
with a person of suitable age and discretion who resides there;
(4) Mailing it to the person by certified mail, at his last known
address; or
(5) Any method that provides the person with actual notice prior to
the return date of the document.
(i) Delivery of a copy of a subpoena or SRO to a person who is not
a natural person may be made by:
(1) Handing it to a registered agent of the person;
(2) Handing it to any officer, director, or agent in charge of any
office of such person;
(3) Mailing it to the last known address of any registered agent,
officer, director, or agent in charge of any office of the person by
certified mail; or [[Page 15008]]
(4) Any method that provides any registered agent, officer,
director, or agent in charge of any office of the person with actual
notice of the document prior to the return date of the document.
(j) A witness subpoenaed by the OHA may be paid the same fees and
mileage as paid to a witness in the district courts of the United
States.
(k) If in the course of a proceeding a subpoena is issued at the
request of a person other than an officer or agency of the United
States, the witness fees and mileage shall be paid by the person who
requested the subpoena. However, at the request of the person, the
witness fees and mileage may be paid by the OHA if the person shows:
(1) The presence of the subpoenaed witness will materially advance
the proceeding; and
(2) The person who requested that the subpoena be issued would
suffer a serious hardship if required to pay the witness fees and
mileage.
(l) If any person upon whom a subpoena or SRO is served pursuant to
this section refuses or fails to comply with any provision of the
subpoena or SRO, an action may be commenced in the appropriate United
States District Court to enforce the subpoena or SRO.
(m) Documents produced in response to a subpoena shall be
accompanied by the sworn certification, under penalty of perjury, of
the person to whom the subpoena was directed or his authorized agent
that:
(1) A diligent search has been made for each document responsive to
the subpoena; and
(2) To the best of his knowledge, information, and belief each
document responsive to the subpoena is being produced.
(n) Any information furnished in response to an SRO shall be
accompanied by the sworn certification, under penalty of perjury, of
the person to whom it was directed or his authorized agent who actually
provides the information that:
(1) A diligent effort has been made to provide all information
required by the SRO; and
(2) All information furnished is true, complete, and correct.
(o) If any document responsive to a subpoena is not produced or any
information required by an SRO is not furnished, the certification
shall include a statement setting forth every reason for failing to
comply with the subpoena or SRO. If a person to whom a subpoena or SRO
is directed withholds any document or information because of a claim of
attorney-client or other privilege, the person submitting the
certification required by paragraph (m) or (n) of this section also
shall submit a written list of the documents or the information
withheld indicating a description of each document or information, the
date of the document, each person shown on the document as having
received a copy of the document, each person shown on the document as
having prepared or been sent the document, the privilege relied upon as
the basis for withholding the document or information, and an
identification of the person whose privilege is being asserted.
(p) If testimony is taken pursuant to a subpoena, the Director
shall determine whether the testimony shall be recorded and the means
by which the testimony is recorded.
(q) A witness whose testimony is recorded may procure a copy of his
testimony by making a written request for a copy and paying the
appropriate fees. However, the Director may deny the request for good
cause. Upon proper identification, any witness or his attorney has the
right to inspect the official transcript of the witness' own testimony.
(r) The Director may sequester any person subpoenaed to furnish
documents or give testimony. Unless permitted by the Director, neither
a witness nor his attorney shall be present during the examination of
any other witnesses.
(s) A witness whose testimony is taken may be accompanied,
represented and advised by his attorney as follows:
(1) Upon the initiative of the attorney or witness, the attorney
may advise his client, in confidence, with respect to the question
asked his client, and if the witness refuses to answer any question,
the witness or his attorney is required to briefly state the legal
grounds for such refusal; and
(2) If the witness claims a privilege to refuse to answer a
question on the grounds of self-incrimination, the witness must assert
the privilege personally.
(t) The Director shall take all necessary action to regulate the
course of testimony and to avoid delay and prevent or restrain
contemptuous or obstructionist conduct or contemptuous language. OHA
may take actions as the circumstances may warrant in regard to any
instances where any attorney refuses to comply with directions or
provisions of this section.
Sec. 1003.9 General filing requirements.
(a) Purpose and scope. The provisions of this section shall apply
to all documents required or permitted to be filed with the OHA. One
copy of each document must be filed with the original, except as
provided in paragraph (f) of this section. A telefax filing of a
document will be accepted only if immediately followed by the filing by
mail or hand-delivery of the original document.
(b) Signing. Any document that is required to be signed, shall be
signed by the person filing the document. Any document filed by a duly
authorized representative shall contain a statement by such person
certifying that he is a duly authorized representative. (A false
certification is unlawful under the provisions of 18 U.S.C. 1001.) The
signature by the person or duly authorized representative constitutes a
certificate by the signer that the signer has read the document and
that to the best of the signer's knowledge, information and belief
formed after reasonable inquiry, the document is well grounded in fact,
warranted under existing law, and submitted in good faith and not for
any improper purpose such as to harass or to cause unnecessary delay.
If a document is signed in violation of this section, OHA may impose
the sanctions specified in section 1003.3 and other sanctions
determined to be appropriate.
(c) Labeling. An application, petition, or other request for action
by the OHA should be clearly labeled according to the nature of the
action involved both on the document and on the outside of the envelope
in which the document is transmitted.
(d) Obligation to supply information. A person who files an
application, petition, appeal or other request for action is under a
continuing obligation during the proceeding to provide the OHA with any
new or newly discovered information that is relevant to that
proceeding. Such information includes, but is not limited to,
information regarding any other application, petition, appeal or
request for action that is subsequently filed by that person with any
DOE office.
(e) The same or related matters. A person who files an application,
petition, appeal or other request for action by the OHA shall state
whether, to the best knowledge of that person, the same or related
issue, act or transaction has been or presently is being considered or
investigated by any other DOE office, other federal agency, department
or instrumentality; or by a state or municipal agency or court; or by
any law enforcement agency, including, but not limited to, a
consideration or investigation in connection with any proceeding
described in this part. In addition, the person shall state whether
contact has been made by the person or [[Page 15009]] one acting on his
behalf with any person who is employed by the DOE with regard to the
same issue, act or transaction or a related issue, act or transaction
arising out of the same factual situation; the name of the person
contacted; whether the contact was verbal or in writing; the nature and
substance of the contact; and the date or dates of the contact.
(f) Request for confidential treatment. (1) If any person filing a
document with the OHA claims that some or all of the information
contained in the document is exempt from the mandatory public
disclosure requirements of the Freedom of Information Act (5 U.S.C.
552), is information referred to in 18 U.S.C. 1905, or is otherwise
exempt by law from public disclosure, and if such person requests the
OHA not to disclose such information, such person shall file together
with the document two copies of the document from which has been
deleted the information for which such person wishes to claim
confidential treatment. The person shall indicate in the original
document that it is confidential or contains confidential information
and must file a statement specifying the justification for non-
disclosure of the information for which confidential treatment is
claimed. If the person states that the information comes within the
exception codified at 5 U.S.C. 552(b)(4) for trade secrets and
commercial or financial information, such person shall include a
statement specifying why such information is privileged or
confidential. If the person filing a document does not submit two
copies of the document with the confidential information deleted, the
OHA may assume that there is no objection to public disclosure of the
document in its entirety.
(2) The OHA retains the right to make its own determination with
regard to any claim of confidentiality, under criteria specified in 10
CFR 1004.11. Notice of the decision by the OHA to deny such claim, in
whole or in part, and an opportunity to respond shall be given to a
person claiming confidentiality of information no less than five days
prior to its public disclosure.
(g) Each application, petition or request for OHA action shall be
submitted as a separate document, even if the applications, petitions,
or requests deal with the same or a related issue, act or transaction,
or are submitted in connection with the same proceeding.
Sec. 1003.10 Effective date of orders.
Any order issued by the OHA under this part is effective as against
all persons having actual or constructive notice thereof upon issuance,
in accordance with its terms, unless and until it is stayed, modified,
suspended, or rescinded. An order is deemed to be issued on the date,
as specified in the order, on which it is signed by the Director of the
OHA or his designee, unless the order provides otherwise.
Sec. 1003.11 Address for filing documents.
All applications, requests, petitions, appeals, written
communications and other documents to be submitted to or filed with the
OHA, as provided in this part or otherwise, shall be addressed to the
Office of Hearings and Appeals, U.S. Department of Energy, 1000
Independence Avenue, S.W., Washington, D.C. 20585. The OHA has
facilities for the receipt of transmissions via FAX, at FAX Number
(202) 586-4972.
Sec. 1003.12 Ratification of prior directives, orders and actions.
All orders and other directives issued, all proceedings initiated,
and all other actions taken in accordance with 10 CFR part 205 prior to
the effective date of this part, are hereby confirmed and ratified, and
shall remain in full force and effect as if issued under this part,
unless or until they are altered, amended, modified or rescinded in
accordance with the provisions of this part.
Sec. 1003.13 Public reference room.
There shall be maintained at the OHA, 1000 Independence Avenue,
S.W., Washington, D.C., a public reference room in which shall be made
available for public inspection and copying, during business hours from
1:00 p.m. to 5:00 p.m.:
(a) A list of all persons who have applied for an exception, or
filed an appeal or petition, and a digest of each application;
(b) Each Decision and Order, with confidential information deleted,
issued in response to an application for an exception, petition or
other request, or at the conclusion of an appeal; and
(c) Any other information in the possession of OHA which is
required by statute to be made available for public inspection and
copying, and any other information that the OHA determines should be
made available to the public.
Sec. 1003.14 Notice of proceedings.
At regular intervals, the OHA shall publish in the Federal Register
a digest of the applications, appeals, petitions and other requests
filed, and a summary of the Decisions and Orders issued by the OHA,
pursuant to proceedings conducted under this part.
Subpart B--Exceptions
Sec. 1003.20 Purpose and scope.
(a) This subpart establishes the procedures for applying for an
exception, as provided for in section 504 (42 U.S.C. 7194) of the
Department of Energy Organization Act (42 U.S.C. 7101 et seq.), from a
rule, regulation or DOE action having the effect of a rule as defined
by 5 U.S.C. 551(4), based on an assertion of serious hardship, gross
inequity or unfair distribution of burdens, and for the consideration
of such application by the OHA. The procedures contained in this
subpart may be incorporated by reference in another DOE rule or
regulation which invokes the adjudicatory authority of the Office of
Hearings and Appeals. The procedures may also be made applicable to
proceedings undertaken at the direction of an appropriate DOE official
if incorporated by reference in the delegation.
(b) The filing of an application for an exception shall not
constitute grounds for noncompliance with the requirements from which
an exception is sought, unless a stay has been issued in accordance
with subpart D of this part.
Sec. 1003.21 What to file.
A person seeking relief under this subpart shall file an
``Application for Exception,'' which should be clearly labeled as such
both on the application and on the outside of the envelope in which the
application is transmitted, and shall be in writing. The general filing
requirements stated in Sec. 1003.9 shall be complied with in addition
to the requirements stated in this subpart.
Sec. 1003.22 Where to file.
All applications for exception shall be filed with the OHA at the
address provided in Sec. 1003.11.
Sec. 1003.23 Notice.
(a) The applicant shall send by United States mail a copy of the
application and any subsequent amendments or other documents relating
to the application, or a copy from which confidential information has
been deleted in accordance with Sec. 1003.9(f), to each person who is
reasonably ascertainable by the applicant as a person who would be
aggrieved by the OHA action sought. The copy of the application shall
be accompanied by a statement that the person may submit comments
regarding the application within 10 days. The application filed with
the OHA shall include certification to the OHA that the applicant has
complied with the requirements of this [[Page 15010]] paragraph and
shall include the names and addresses of each person to whom a copy of
the application was sent.
(b) Notwithstanding the provision of paragraph (a) of this section,
if an applicant determines that compliance with paragraph (a) of this
section would be impracticable, the applicant shall:
(1) Comply with the requirements of paragraph (a) of this section
with regard to those persons whom it is reasonable and practicable to
notify; and
(2) Include with the application a description of the persons or
class or classes of persons to whom notice was sent. The OHA may
require the applicant to provide additional or alternative notice, may
determine that the notice required by paragraph (a) of this section is
not impracticable, or may determine that notice should be published in
the Federal Register.
(c) The OHA shall serve notice on any other person readily
identified by the OHA as one who would be aggrieved by the OHA action
sought and may serve notice on any other person that written comments
regarding the application will be accepted if filed within 10 days of
service of such notice.
(d) Any person submitting written comments to the OHA with respect
to an application filed under this subpart shall send a copy of the
comments, or a copy from which confidential information has been
deleted in accordance with Sec. 1003.9(f), to the applicant. The person
shall certify to the OHA that he has complied with the requirements of
this paragraph. The OHA may notify other persons participating in the
proceeding of such comments and provide an opportunity for such persons
to respond.
Sec. 1003.24 Contents.
(a) The application shall contain a full and complete statement of
all relevant facts pertaining to the circumstances, act or transaction
that is the subject of the application and to the OHA action sought.
Such facts shall include the names and addresses of all affected
persons (if reasonably ascertainable); a complete statement of the
business or other reasons that justify the act or transaction; a
description of the acts or transactions that would be affected by the
requested OHA action; and a full discussion of the pertinent provisions
and relevant facts contained in the documents submitted with the
application. Copies of all relevant contracts, agreements, leases,
instruments, and other documents shall be submitted with the
application.
(b) The applicant shall state whether he requests or intends to
request that there be a conference or hearing regarding the
application. Any request not made at the time the application is filed
shall be made as soon thereafter as possible. The request and the OHA
determination on the request shall be made in accordance with subpart F
of this part.
(c) The application shall include a discussion of all relevant
authorities, including, but not limited to, DOE rules, regulations, and
decisions on appeals and exceptions relied upon to support the
particular action sought therein.
(d) The application shall specify the exact nature and extent of
the relief requested.
Sec. 1003.25 OHA evaluation.
(a) (1) OHA may initiate an investigation of any statement in an
application and utilize in its evaluation any relevant facts obtained
by such investigation. The OHA may solicit and accept submissions from
third persons relevant to any application provided that the applicant
is afforded an opportunity to respond to all third person submissions.
In evaluating an application, the OHA may consider any other source of
information. The OHA on its own initiative may convene a hearing or
conference, if, in its discretion, it considers that such hearing or
conference will advance its evaluation of the application. The OHA may
issue appropriate orders as warranted in the proceeding.
(2) If the OHA determines that there is insufficient information
upon which to base a decision and if upon request additional
information is not submitted by the applicant, the OHA may dismiss the
application without prejudice. If the failure to supply additional
information is repeated or willful, the OHA may dismiss the application
with prejudice. If the applicant fails to provide the notice required
by Sec. 1003.23, the OHA may dismiss the application without prejudice.
(b)(1) The OHA shall consider an application for an exception only
when it determines that a more appropriate proceeding is not provided
by DOE regulations.
(2) An application for an exception may be granted to alleviate or
prevent serious hardship, gross inequity or unfair distribution of
burdens.
(3) An application for an exception shall be decided in a manner
that is, to the extent possible, consistent with the disposition of
previous applications for exception.
Sec. 1003.26 Decision and Order.
(a) Upon consideration of the application and other relevant
information received or obtained during the proceeding, the OHA shall
issue an order granting or denying the application, in whole or in
part.
(b) The Decision and Order shall include a written statement
setting forth the relevant facts and the legal basis of the order. The
Decision and Order shall provide that any person aggrieved thereby may
file an appeal in accordance with Sec. 1003.27.
(c) The OHA shall serve a copy of the Decision and Order upon the
applicant, any other person who participated in the proceeding, and
upon any other person readily identifiable by the OHA as one who is
aggrieved by such Decision and Order.
Sec. 1003.27 Appeal of exception order.
(a) Except as provided in paragraph (b) of this section, any person
aggrieved by an order issued by the OHA under this subpart may file an
appeal with the OHA in accordance with subpart C of this part. Any
appeal filed under this paragraph must be filed within 30 days of
service, or constructive service under Sec. 1003.14, of the order from
which the appeal is taken.
(b) Any person aggrieved or adversely affected by the denial of a
request for exception relief filed pursuant to Sec. 504 of the
Department of Energy Organization Act (42 U.S.C. 7194) may appeal to
the Federal Energy Regulatory Commission, in accordance with the
Commission's regulations.
Subpart C--Appeals
Sec. 1003.30 Purpose and scope.
This subpart establishes the procedures for the filing of an
administrative appeal of a DOE order and for the consideration of the
appeal by the Office of Hearings and Appeals. Unless a program rule or
regulation or a DOE delegation of authority provides otherwise, a
person aggrieved by a DOE order appealable under this subpart has not
exhausted his or her administrative remedies until an appeal has been
filed under this subpart and an order granting or denying the appeal
has been issued. A person filing an appeal must also file an
``Application for Stay'' under subpart D of this part if the grant of a
stay is necessary under Section 10(c) of the Administrative Procedure
Act (5 U.S.C. 704) to preclude judicial review pending final action on
the appeal.
Sec. 1003.31 Who may file.
Any person may file an appeal under this subpart who is so
authorized by Sec. 1003.27, a program rule or regulation, or a DOE
delegation of authority. [[Page 15011]]
Sec. 1003.32 What to file.
A person filing under this subpart shall file an ``Appeal of
Order'' which should be clearly labeled as such both on the appeal and
on the outside of the envelope in which the appeal is transmitted, and
shall be in writing. The general filing requirements stated in
Sec. 1003.9 shall be complied with in addition to the requirements
stated in this subpart.
Sec. 1003.33 Where to file.
The appeal shall be filed with the OHA at the address provided in
Sec. 1003.11.
Sec. 1003.34 Notice.
(a) The appellant shall send by United States mail a copy of the
appeal and any subsequent amendments or other documents relating to the
appeal, or a copy from which confidential information has been deleted
in accordance with Sec. 1003.9(f), to each person who is reasonably
ascertainable by the appellant as a person who would be aggrieved by
the OHA action sought, including those who participated in the process
that led to the issuance of the order from which the appeal has been
taken. The copy of the appeal shall be accompanied by a statement that
the person may submit comments regarding the appeal to the OHA within
10 days. The appeal filed with the OHA shall include certification to
the OHA that the appellant has complied with the requirements of this
paragraph and shall include the names and addresses of each person to
whom a copy of the appeal was sent.
(b) Notwithstanding the provisions of paragraph (a) of this
section, if any appellant determines that compliance with paragraph (a)
of this section would be impracticable, the appellant shall:
(1) Comply with the requirements of paragraph (a) of this section
with regard to those persons whom it is reasonable and possible to
notify; and
(2) Include with the appeal a description of the persons or class
or classes of persons to whom notice was not sent. The OHA may require
the appellant to provide additional or alternative notice, may
determine that the notice required by paragraph (a) of this section is
not impracticable, or may determine that notice should be published in
the Federal Register.
(c) The OHA shall serve notice on any other person readily
identifiable by the OHA as one who would be aggrieved by the OHA action
sought and may serve notice on any other person that written comments
regarding the appeal will be accepted if filed within 10 days of the
service of that notice.
(d) Any person submitting written comments to the OHA with respect
to an appeal filed under this subpart shall send a copy of the
comments, or a copy from which confidential information has been
deleted in accordance with Sec. 1003.9(f), to the appellant. The person
shall certify to the OHA that he has complied with the requirements of
this paragraph. The OHA may notify other persons participating in the
proceeding of such comments and provide an opportunity for such persons
to respond.
Sec. 1003.35 Contents.
(a) The appeal shall contain a concise statement of grounds upon
which it is brought and a description of the relief sought. It shall
include a discussion of all relevant authorities, including, but not
limited to, DOE rules, regulations, and decisions on appeals and
exceptions relied upon to support the appeal. If the appeal includes a
request for relief based on significantly changed circumstances, there
shall be a complete description of the events, acts, or transactions
that comprise the significantly changed circumstances, and the
appellant shall state why, if the significantly changed circumstance is
new or newly discovered facts, such facts were not or could not have
been presented during the process that led to the issuance of the order
from which the appeal has been taken. For purposes of this subpart, the
term ``significantly changed circumstances'' shall mean--
(1) The discovery of material facts that were not known or could
not have been known at the time of the process that led to the issuance
of the order from which the appeal has been taken;
(2) The discovery of a law, rule, regulation, order or decision on
an appeal or any exception that was in effect at the time of the
process that led to the issuance of the order from which the appeal has
been taken, and which, if such had been made known to DOE, would have
been relevant and would have substantially altered the outcome; or
(3) A substantial change in the facts or circumstances upon which
an outstanding and continuing order affecting the appellant was issued,
which change has occurred during the interval between issuance of the
order and the date of the appeal and was caused by forces or
circumstances beyond the control of the appellant.
(b) A copy of the order that is the subject of the appeal shall be
submitted with the appeal.
(c) The appellant shall state whether he requests or intends to
request that there be a conference or hearing regarding the appeal. Any
request not made at the time the appeal is filed shall be made as soon
thereafter as possible. The request and the OHA determination on the
request shall be made in accordance with subpart F of this part.
Sec. 1003.36 OHA evaluation.
(a) (1) The OHA may initiate an investigation of any statement in
an appeal and utilize in its evaluation any relevant facts obtained by
such investigation. The OHA may solicit and accept submissions from
third persons relevant to any appeal provided that the appellant is
afforded an opportunity to respond to all third person submissions. In
evaluating an appeal, the OHA may consider any other source of
information. The OHA on its own initiative may convene a conference or
hearing if, in its discretion, it considers that such conference or
hearing will advance its evaluation of the appeal.
(2) If the OHA determines that there is insufficient information
upon which to base a decision and if, upon request, the necessary
additional information is not submitted, the OHA may dismiss the appeal
with leave to refile within a specified time. If the failure to supply
additional information is repeated or willful, the OHA may dismiss the
appeal with prejudice. If the appellant fails to provide the notice
required by Sec. 1003.34, the OHA may dismiss the appeal without
prejudice.
(b) The OHA may issue an order summarily denying the appeal if--
(1) It is not filed in a timely manner, unless good cause is shown;
or
(2) It is defective on its face for failure to state, and to
present facts and legal argument in support thereof, that the DOE
action was erroneous in fact or in law, or that it was arbitrary or
capricious.
(c) The OHA may deny any appeal if the appellant does not establish
that--
(1) The appeal was filed by a person aggrieved by a DOE action;
(2) The DOE's action was erroneous in fact or in law; or
(3) The DOE's action was arbitrary or capricious.
Sec. 1003.37 Decision and Order.
(a) Upon consideration of the appeal and other relevant information
received or obtained during the proceeding, the OHA shall enter an
appropriate order, which may include the modification of the order that
is the subject of the appeal.
(b) The Decision and Order shall include a written statement
setting forth the relevant facts and the legal basis of the Decision
and Order. The Decision and Order shall state that it is a final
[[Page 15012]] order of the DOE of which the appellant may seek
judicial review.
(c) The OHA shall serve a copy of the Decision and Order upon the
appellant, any other person who participated in the proceeding, and
upon any other person readily identifiable by the OHA as one who is
aggrieved by such Decision and Order.
Subpart D--Stays
Sec. 1003.40 Purpose and scope.
(a) This subpart establishes the procedures for applying for a
stay. It also specifies the nature of the relief which may be
effectuated through the approval of a stay.
(b) An application for a stay will be considered if it is incident
to a submission over which OHA has jurisdiction. An application for
stay may also be considered if the stay is requested pending judicial
review of an order issued by the OHA.
(c) All applicable DOE rules, regulations, orders, and generally
applicable requirements shall be complied with unless and until an
application for a stay is granted.
Sec. 1003.41 What to file.
A person filing under this subpart shall file an ``Application for
Stay'' which should be clearly labeled as such both on the application
and on the outside of the envelope in which the application is
transmitted. The application shall be in writing. The general filing
requirements stated in Sec. 1003.9 shall be complied with in addition
to the requirements stated in this subpart.
Sec. 1003.42 Where to file.
An Application for Stay shall be filed with the OHA at the address
provided in Sec. 1003.11.
Sec. 1003.43 Notice.
(a) An applicant for stay shall notify each person readily
identifiable as one who will be directly aggrieved by the OHA action
sought that it has filed an Application for Stay. The applicant shall
serve the application on each identified person and shall notify each
such person that the OHA will receive and endeavor to consider, subject
to time constraints imposed by the urgency of the proceeding, written
comments on the application that are submitted immediately.
(b) Any person submitting written comments to the OHA with respect
to an application filed under this subpart shall send a copy of the
comments, or a copy from which confidential information has been
deleted in accordance with Sec. 1003.9(f), to the applicant. The person
shall certify to the OHA that he has complied with the requirements of
this paragraph. The OHA may notify other persons participating in the
proceeding of such comments and provide an opportunity for such persons
to respond.
(c) The OHA shall require the applicant to take reasonable measures
depending on the circumstances and urgency of the case to notify each
person readily identified as one that would be directly aggrieved by
the OHA action sought of the date, time and place of any hearing or
other proceedings in the matter. However, if the Director of the OHA
concludes that the circumstances presented by the applicant justify
immediate action, the OHA may issue a Decision on the Application for
Stay prior to receipt of written comments or the oral presentation of
views by adversely affected parties.
Sec. 1003.44 Contents.
(a) An Application for Stay shall contain a full and complete
statement of all relevant facts pertaining to the act or transaction
that is the subject of the application and to the OHA action sought.
Such facts shall include, but not be limited to, all information that
relates to satisfaction of the criteria in Sec. 1003.45(b).
(b) The application shall include a description of the proceeding
incident to which the stay is being sought. This description shall
contain a discussion of all DOE actions relevant to the proceeding.
(c) The applicant shall state whether he requests that a conference
or hearing be convened regarding the application, as provided in
subpart F of this part.
Sec. 1003.45 OHA evaluation.
(a) (1) The OHA may initiate an investigation of any statement in
an application and utilize in its evaluation any relevant facts
obtained by such investigation. The OHA may order the submission of
additional information, and may solicit and accept submissions from
third persons relevant to an application provided that the applicant is
afforded an opportunity to respond to all third person submissions. In
evaluating an application, the OHA may also consider any other source
of information, and may conduct hearings or conferences either in
response to requests by parties in the proceeding or on its own
initiative.
(2) If the OHA determines that there is insufficient information
upon which to base a decision and if upon request additional
information is not submitted by the applicant, the OHA may dismiss the
application without prejudice. If the failure to supply additional
information is repeated or willful, the OHA may dismiss the application
with prejudice.
(3) The OHA shall process applications for stay as expeditiously as
possible. When administratively feasible, the OHA shall grant or deny
an Application for Stay within 10 business days after receipt of the
application.
(4) Notwithstanding any other provision of the DOE regulations, the
OHA may make a decision on any Application for Stay prior to the
receipt of written comments.
(b) The criteria to be considered and weighed by the OHA in
determining whether a stay should be granted are:
(1) Whether a showing has been made that an irreparable injury will
result in the event that the stay is denied;
(2) Whether a showing has been made that a denial of the stay will
result in a more immediate hardship or inequity to the applicant than a
grant of the stay would cause to other persons affected by the
proceeding;
(3) Whether a showing has been made that it would be desirable for
public policy reasons to grant immediate relief pending a decision by
OHA on the merits;
(4) Whether a showing has been made that it is impossible for the
applicant to fulfill the requirements of an outstanding order or
regulatory provision; and
(5) Whether a showing has been made that there is a strong
likelihood of success on the merits.
Sec. 1003.46 Decision and Order.
(a) In reaching a decision with respect to an Application for Stay,
the OHA shall consider all relevant information in the record. An
Application for Stay may be decided by the issuance of an order either
during the course of a hearing or conference in which an official
transcript is maintained or in a separate written Decision and Order.
Any such order shall include a statement of the relevant facts and the
legal basis of the decision. The approval or denial of a stay is not an
order of the OHA that is subject to administrative or judicial review.
(b) In its discretion and upon a determination that it would be
desirable to do so in order to further the objectives stated in the
regulations or in the statutes the DOE is responsible for
administering, the OHA may order a stay on its own initiative.
Subpart E--Modification or Rescission
Sec. 1003.50 Purpose and scope.
This subpart establishes the procedures for the filing of an
[[Page 15013]] application for modification or rescission of a DOE
order. An application for modification or rescission is a summary
proceeding that will be initiated only if the criteria described in
Sec. 1003.55(b) are satisfied.
Sec. 1003.51 What to file.
A person filing under this subpart shall file an ``Application for
Modification (or Rescission),'' which should be clearly labeled as such
both on the application and on the outside of the envelope in which the
application is transmitted, and shall be in writing. The general filing
requirements stated in Sec. 1003.9 shall be complied with in addition
to the requirements stated in this subpart.
Sec. 1003.52 Where to file.
The application shall be filed with the OHA at the address provided
in Sec. 1003.11.
Sec. 1003.53 Notice.
(a) The applicant shall send by United States mail a copy of the
application and any subsequent amendments or other documents relating
to the application, from which confidential information has been
deleted in accordance with Sec. 1003.9(f), to each person who is
reasonably ascertainable by the applicant as a person who would be
aggrieved by the OHA action sought, including persons who participated
in the process that led to the issuance of the order for which the
modification or rescission is sought. The copy of the application shall
be accompanied by a statement that the person may submit comments
regarding the application to the OHA within 10 days. The application
filed with the OHA shall include certification to the OHA that the
applicant has complied with the requirements of this paragraph and
shall include the names and addresses of all persons to whom a copy of
the application was sent.
(b) If an applicant determines that compliance with paragraph (a)
of this section would be impracticable, the applicant shall:
(1) Comply with the requirements of paragraph (a) of this section
with regard to those persons whom it is reasonable and possible to
notify; and
(2) Include with the application a description of the persons or
class or classes of persons to whom notice was not sent. The OHA may
require the applicant to provide additional or alternative notice, may
determine that the notice required by paragraph (a) of this section is
not impracticable, or may determine that notice should be published in
the Federal Register.
(c) The OHA shall serve notice on any other person readily
identifiable by the OHA as one who would be aggrieved by the OHA action
sought and may serve notice on any other person that written comments
regarding the application will be accepted if filed within 10 days of
service of that notice.
(d) Any person submitting written comments to the OHA with respect
to an application filed under this subpart shall send a copy of the
comments, or a copy from which confidential information has been
deleted in accordance with Sec. 1003.9(f), to the applicant. The person
shall certify to the OHA that he has complied with the requirement of
this paragraph. The OHA may notify other persons participating in the
proceeding of such comments and provide an opportunity for such persons
to respond.
Sec. 1003.54 Contents.
(a) The application shall contain a full and complete statement of
all relevant facts pertaining to the circumstances, act or transaction
that is the subject of the application and to the OHA action sought.
Such facts shall include the names and addresses of all affected
persons (if reasonably ascertainable), a complete statement of the
business or other reasons that justify the act or transaction, a
description of the acts or transactions that would be affected by the
requested action, and a full description of the pertinent provisions
and relevant facts contained in any relevant documents. Copies of all
contracts, agreements, leases, instruments, and other documents
relevant to the application shall be submitted to the OHA upon its
request. A copy of the order of which modification or rescission is
sought shall be included with the application.
(b) The applicant shall state whether he requests or intends to
request that there be a conference regarding the application. Any
request not made at the time the application is filed shall be made as
soon thereafter as possible. The request and the OHA determination on
the request shall be made in accordance with subpart F of this part.
(c) The applicant shall fully describe the events, acts, or
transactions that comprise the significantly changed circumstances, as
defined in Sec. 1003.55(b)(2), upon which the application is based. The
applicant shall state why, if the significantly changed circumstance is
new or newly discovered facts, such facts were not or could not have
been presented during the process that led to the issuance of the order
for which modification or rescission is sought.
(d) The application shall include a discussion of all relevant
authorities, including, but not limited to, DOE rules, regulations, and
decisions on appeal and exceptions relied upon to support the action
sought therein.
Sec. 1003.55 OHA evaluation.
(a)(1) The OHA may initiate an investigation of any statement in an
application and utilize in its evaluation any relevant facts obtained
by such investigation. The OHA may solicit and accept submissions from
third persons relevant to any application for modification or
rescission provided that the applicant is afforded an opportunity to
respond to all third person submissions. In evaluating an application
for modification or rescission, the OHA may convene a conference, on
its own initiative, if, in its discretion, it considers that such
conference will advance its evaluation of the application.
(2) If the OHA determines that there is insufficient information
upon which to base a decision and if upon request the necessary
additional information is not submitted, the OHA may dismiss the
application without prejudice. If the failure to supply additional
information is repeated or willful, the OHA may dismiss the application
with prejudice. If the applicant fails to provide the notice required
by Sec. 1003.53, the OHA may dismiss the application without prejudice.
(b)(1) An application for modification or rescission of an order
shall be processed only if--
(i) The application demonstrates that it is based on significantly
changed circumstances; and
(ii) The period within which a person may file an appeal has lapsed
or, if an appeal has been filed, a final order has been issued.
(2) For purposes of this subpart, the term ``significantly changed
circumstances'' shall mean--
(i) The discovery of material facts that were not known or could
not have been known at the time of the proceeding and action upon which
the application is based;
(ii) The discovery of a law, rule, regulation, order or decision on
appeal or exception that was in effect at the time of the proceeding
upon which the application is based and which, if such had been made
known to the OHA, would have been relevant to the proceeding and would
have substantially altered the outcome; or
(iii) There has been a substantial change in the facts or
circumstances upon which an outstanding and continuing order of the OHA
affecting [[Page 15014]] the applicant was issued, which change has
occurred during the interval between issuance of such order and the
date of the application and was caused by forces or circumstances
beyond the control of the applicant.
Sec. 1003.56 Decision and Order.
(a) Upon consideration of the application and other relevant
information received or obtained during the proceeding, the OHA shall
issue a Decision and Order granting or denying the application.
(b) The Decision and Order shall include a written statement
setting forth the relevant facts and the legal basis of the Decision
and Order. When appropriate, the Decision and Order shall state that it
is a final order of which the applicant may seek judicial review.
(c) The OHA shall serve a copy of the Decision and Order upon the
applicant, any other person who participated in the proceeding and upon
any other person readily identifiable by the OHA as one who is
aggrieved by such Decision and Order.
Subpart F--Conferences and Hearings
Sec. 1003.60 Purpose and scope.
This subpart establishes the procedures for requesting and
conducting an OHA conference or hearing. Such proceedings shall be
convened in the discretion of the OHA, consistent with OHA
requirements.
Sec. 1003.61 Conferences.
(a) The OHA in its discretion may direct that a conference be
convened, on its own initiative or upon request by a person, when it
appears that such conference will materially advance the proceeding.
The determination as to who may attend a conference convened under this
subpart shall be in the discretion of the OHA, but a conference will
usually not be open to the public.
(b) A conference may be requested in connection with any proceeding
of the OHA by any person who would be aggrieved by that proceeding. The
request may be made in writing or verbally, but must include a specific
showing as to why such conference will materially advance the
proceeding. The request shall be addressed to the OHA, as provided in
Sec. 1003.11.
(c) A conference may only be convened after actual notice of the
time, place and nature of the conference is provided to the person who
requested the conference.
(d) When a conference is convened in accordance with this section,
each person may present views as to the issues involved. Documentary
evidence may be presented at the conference, but will be treated as if
submitted in the regular course of the proceeding. A transcript of the
conference will not usually be prepared. However, the OHA in its
discretion may have a verbatim transcript prepared.
(e) Because a conference is solely for the exchange of views
incident to a proceeding, there will be no formal reports or findings
unless the OHA in its discretion determines that such would be
advisable.
Sec. 1003.62 Hearings.
(a) The OHA in its discretion may direct that a hearing be convened
on its own initiative or upon request by a person, when it appears that
such hearing will materially advance the proceeding. All hearings
convened pursuant to this subpart shall be conducted by the Director of
the OHA or his designee. The determination as to who may attend a
hearing convened under this subpart shall be in the discretion of OHA.
Hearings will be open to the public, but may be closed at the
discretion of OHA if the reason is put in the record.
(b) A hearing may be requested by an applicant, appellant, or any
other person who would be aggrieved by the OHA action sought. The
request shall be in writing and shall include a specific showing as to
why such hearing will materially advance the proceeding. The request
shall be addressed to the OHA at the address provided in Sec. 1003.11.
(c) A hearing may be convened only after actual notice of the time,
place, and nature of the hearing is provided both to the applicant or
appellant and to any other person readily identifiable by the OHA as
one who would be aggrieved by the OHA action involved. The notice shall
include, as appropriate:
(1) A statement that such person may participate in the hearing; or
(2) A statement that such person may request a separate conference
or hearing regarding the application or appeal.
(d) When a hearing is convened in accordance with this section,
each person may present views as to the issue or issues involved.
Documentary evidence may be presented at the hearing, but will be
treated as if submitted in the regular course of the proceeding. A
transcript of the hearing will be prepared.
(e) If material factual issues remain in dispute after an
application or appeal has been filed, the Director of the OHA or his
designee may issue an order convening an evidentiary hearing in which
witnesses shall testify under oath, subject to cross-examination, for
the record and in the presence of a Presiding Officer. A Motion for
Evidentiary Hearing should specify the type of witness or witnesses
whose testimony is sought, the scope of questioning that is
anticipated, and the relevance of the questioning to the proceeding. A
motion may be summarily denied for lack of sufficient specificity,
because an evidentiary hearing would place an undue burden on another
person or the DOE, or because an evidentiary hearing would cause undue
delay.
(f) A Motion for Evidentiary Hearing must be served on any person
from whom information is sought and on parties to the underlying
administrative action. Any person who wishes to respond to a Motion for
Evidentiary Hearing must do so within ten days of service.
(g) In reaching a decision with respect to a request for a hearing
or motion filed under this subpart, the OHA shall consider all relevant
information in the record. If an order is issued granting a hearing or
evidentiary hearing, in whole or in part, the order shall specify the
parties, any limitations on the participation of a party, and the
issues to be considered. An order of the OHA issued under this section
is an interlocutory order which is subject to further administrative
review or appeal only upon issuance of a final Decision and Order in
the proceeding concerned.
(h) At any evidentiary hearing, the parties shall have the
opportunity to present material evidence that directly relates to a
particular issue set forth for hearing. The Presiding Officer may
administer oaths or affirmations, rule on objections to the
presentation of evidence, receive relevant material, require the
advance submission of documents offered as evidence, dispose of
procedural requests, determine the format of the hearing, modify any
order granting a Motion for Evidentiary Hearing, direct that written
motions, documents or briefs be filed with respect to issues raised
during the course of the hearing, ask questions of witnesses, issue
subpoenas, direct that documentary evidence be served upon other
parties (under protective order if such evidence is deemed
confidential) and otherwise regulate the conduct of the hearing.
Subpart G--Private Grievances and Redress
Sec. 1003.70 Purpose and scope.
The OHA shall receive and consider petitions that seek special
redress relief or other extraordinary assistance as provided for in the
Federal Energy [[Page 15015]] Administration Act of 1974, Section 21
(15 U.S.C. 780), apart from or in addition to the other proceedings
described in this part. This subpart may also apply if cross referenced
in another DOE rule or regulation, or in a DOE delegation of authority.
Petitions under this subpart shall include those seeking special
assistance based on an assertion that DOE is not complying with its
rules, regulations, or orders.
Sec. 1003.71 Who may file.
Any person may file a petition under this subpart who is adversely
affected by any DOE rule, regulation or order subject to 15 U.S.C. 780
or who is so authorized by a program rule or regulation or a DOE
delegation of authority.
Sec. 1003.72 What to file.
The person seeking relief under this subpart shall file a
``Petition for Special Redress or Other Relief,'' which shall be
clearly labeled as such both on the petition and on the outside of the
envelope in which it is transmitted, and shall be in writing. The
general filing requirements stated in Sec. 1003.9 shall be complied
with in addition to the requirements stated in this subpart.
Sec. 1003.73 Where to file.
A petition shall be filed with the OHA at the address provided in
Sec. 1003.11.
Sec. 1003.74 Notice.
(a) The person filing the petition, except a petition that asserts
that the DOE is not complying with agency rules, regulations, or
orders, shall send by United States mail a copy of the petition and any
subsequent amendments or other documents relating to the petition, or a
copy from which confidential information has been deleted in accordance
with Sec. 1003.9(f), to each person who is reasonably ascertainable by
the petitioner as a person who would be aggrieved by the OHA action
sought. The copy of the petition shall be accompanied by a statement
that the person may submit comments regarding the petition to the OHA
within 10 days. The copy filed with the OHA shall include certification
that the requirements of this paragraph have been complied with and
shall include the names and addresses of each person to whom a copy of
the petition was sent.
(b) Notwithstanding the provisions of paragraph (a) of this
section, if the petitioner determines that compliance with paragraph
(a) of this section would be impracticable, the petitioner shall:
(1) Comply with the requirements of paragraph (a) of this section
with regard to those persons whom it is reasonable and practicable to
notify; and
(2) Include with the petition a description of the persons or class
or classes of persons to whom notice was not sent.
(3) The OHA may require the petitioner to provide additional or
alternative notice, or may determine that the notice required by
paragraph (a) of this section is not impracticable, or may determine
that notice should be published in the Federal Register.
(c) The OHA shall serve notice on any other person readily
identifiable by the OHA as one who would be aggrieved by the OHA action
sought and may serve notice on any other person that written comments
regarding the petition will be accepted if filed within 10 days of
service of that notice.
(d) Any person submitting written comments to the OHA regarding a
petition filed under his subpart shall send a copy of the comments, or
a copy from which confidential information has been deleted in
accordance with Sec. 1003.9(f), to the petitioner. The person shall
certify to the OHA that he has complied with the requirements of this
paragraph. The OHA may notify other persons participating in the
proceeding of such comments and provide an opportunity for such persons
to respond.
Sec. 1003.75 Contents.
The petition shall contain a full and complete statement of all
relevant facts pertaining to the circumstances, act or transaction that
is the subject of the petition and to the OHA action sought. Such facts
shall include, but not be limited to, the names and addresses of all
affected persons (if reasonably ascertainable); a complete statement of
the business or other reasons that justify the act or transaction, if
applicable; a description of the act or transaction, if applicable; a
description of the acts or transactions that would be affected by the
requested action; a full discussion of the pertinent provisions and
relevant facts contained in the documents submitted with the petition,
and an explanation of how the petitioner is aggrieved by DOE's
position. Copies of all contracts, agreements, leases, instruments, and
other documents relevant to the petition shall be submitted to the OHA
upon its request.
Sec. 1003.76 OHA evaluation of request.
(a) (1) The OHA may initiate an investigation of any statement in a
petition and utilize in its evaluation any relevant facts obtained by
such investigation. The OHA may solicit and accept submissions from
third persons relevant to any petition provided that the petitioner is
afforded an opportunity to respond to all third person submissions. In
evaluating a petition, the OHA may consider any other source of
information. The OHA on its own initiative may convene a conference,
if, in its discretion, it considers that such will advance its
evaluation of the petition.
(2) If the OHA determines that there is insufficient information
upon which to base a decision and if, upon request, the necessary
additional information is not submitted, the OHA may dismiss the
petition without prejudice. If the failure to supply additional
information is repeated or willful, the OHA may dismiss the petition
with prejudice. If the petitioner fails to provide the notice required
by Sec. 1003.74, the OHA may dismiss the petition without prejudice.
(b) (1) The OHA will dismiss without prejudice a ``Petition for
Special Redress or Other Relief'' if it determines that another more
appropriate proceeding is provided by this part.
(2) The OHA will dismiss with prejudice a ``Petition for Special
Redress or Other Relief'' filed by a person who has exhausted his
administrative remedies with respect to any proceeding provided by this
part, and received a final order therefrom that addresses the same
issue or transaction.
Sec. 1003.77 Decision and Order.
(a) Upon consideration of the petition and other relevant
information received or obtained during the proceeding, the OHA will
issue a Decision and Order granting or denying the petition.
(b) The Decision and Order denying or granting the petition shall
include a written statement setting forth the relevant facts and legal
basis for the Decision and Order. Such Decision and Order shall state
that it is a final order of the DOE of which the petitioner may seek
judicial review.
[FR Doc. 95-6797 Filed 3-20-95; 8:45 am]
BILLING CODE 6450-01-P
