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Subpart B [Reserved]

comments concerning the certification

and OFE's proposed prohibition order, Subpart C-Written comments,

and requests for public hearings. Prohi

bition order proceedings under section Public Hearings and Con

301, as amended by OBRA, will have ferences During Administra

only one period of 45 days, since no tive Proceedings

Tentative Staff Analysis will be pre

pared. The comment period may be ex$ 501.30 Purpose and scope.

tended by OFE in accordance with This subpart establishes the proce 8501.7. See $501.52(b) of this part for dures for requests for and the conduct further information with respect to the of public hearings; for submission of comment period. Written comments written comments; and for requests for shall be filed in accordance with $ 501.7. and conduct of conferences pursuant to an administrative proceeding before

(Department of Energy Organization Act,

Pub. L. 95-91, 91 Stat. 565 (42 U.S.C. 7101 Et OFE. Hearings shall be convened at the

seq.); Powerplant and Industrial Fuel Use request of any interested person, in ac

Act of 1978, Pub. L. 95-620, 92 Stat. 3289 (42 cordance with section 701(d) of FUA, U.S.C. 8301 et seq.); Omnibus Budget Recand shall be held at a time and place to onciliation Act of 1981 (Pub. L. 97–35); E.O. be decided by the Presiding Officer. 12009, 42 FR 46267, Sept. 15, 1977)

[46 FR 59889, Dec. 7, 1981, as amended at 47 $ 501.31 Written comments.

FR 50848, Nov. 10, 1982; 54 FR 52892, Dec. 22, (a) New facilities. Except as may be 1989] provided elsewhere in these regulations. OFE shall provide a period of at 8501.32 Conferences (other than least forty-five (45) days, commencing prepetition conferences). with publication of the Notice of AC (a) At any time following commenceceptance of Petition, of in the case of ment of a proceeding before OFE, an certification exemptions, Notice of Ac- interested person may request a conceptance and availability of Certifi- ference with the staff of OFE to discuss cation, in the FEDERAL REGISTER in ac- a petition, permit or any other issue cordance with $ 501.63(a), for submission pending before OFE. The request for a of written comments concerning a peti conference should generally be in writtion for an exemption. Written com ing and should indicate the subjects to ments shall be made in accordance be covered and should describe the rewith 8501.7.

quester's interest in the proceeding. (b) Existing facilities. Except as may Conferences held after the commencebe provided elsewhere in these regula- ment of an administrative proceeding tions, OFE shall provide a period of at before OFE shall be convened at the least 45 days for submission of written discretion of OFE or the Presiding Officomments concerning a proposed pro cer. hibition rule or order or a petition for (b) When OFE convenes a conference a permit. In the case of a proposed pro- in accordance with this section, any hibition rule or order issued to an ex- person invited may present views as to isting electing powerplant, OFE shall the issue or issues involved. Documenalso provide for a period of at least 45 tary evidence may be submitted at the days for submission of written com- conference and such evidence, to the ments concerning a Tentative Staff extent that it is not deemed to be conAnalysis. This period shall commence fidential, will be included in the adon the day after publication of the No- ministrative record. OFE will not nortice of Availability of the Tentative mally have a transcript of the conStaff Analysis in the FEDERAL REG- ference prepared but may do so at its ISTER. In the case of prohibition order discretion. proceedings for certifying powerplants (c) Because a conference is solely for under section 301 of FUA, as amended, the exchange of views incident to a OFE shall provide a period of at least proceeding, there will be no formal re45 days, beginning the day after the port or findings by OFE unless OFE in Notice of Acceptance of certification is its discretion determines that the preppublished, for submission of written aration of a report or findings would be

advisable. OFE will, however, place in the public file a record of any conference.

the hearing, and outline questions that are to be posed.

$501.33 Request for a public hearing.

(a) New facilities. In the case of a petition for an exemption under title II of FUA, any interested person may submit a written request that OFE convene a public hearing in accordance with section 701 of FUA no later than forty-five (45) days after publication of either the Notice of Acceptance of a petition, or in the case of a certification exemption, the publication of the Notice of Acceptance of Certification. This time period may be extended at the discretion of OFE.

(b) Eristing powerplants. In the case of a petition for an exemption from a prohibition imposed by a final rule or order issued by OFE to an electing powerplant under former sections of title III of FUA or a petition for a permit under $504.1, any interested person may submit a written request that OFE convene a public hearing in accordance with section 701 of FUA within 45 days after the notice of the filing of a petition is published in the FEDERAL REGISTER. In the case of a proposed prohibition rule or order issued to an electing powerplant under former section 301, the 45 day period in which to request a public hearing shall commence upon the publication of the Notice of Availability of the Tentative Staff Analysis. In the case of a proposed prohibition order to be issued to certifying powerplants under section 301 of FUA, as amended, the 45 day period in which to request a public hearing commences upon publication of the Notice of Acceptance of Certification. This time limit may be extended at the discretion of OFE in accordance with $501.7.

(c) Contents of request. A request for a public hearing must be in writing and must include a description of the requesting party's interest in the proceeding and a statement of the issues involved. The request should, to the extent possible, identify any witnesses that are to be called, summarize the anticipated testimony to be given at

(Department of Energy Organization Act, Pub. L. 95–91, 91 Stat. 565 (42 U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of 1978, Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.); Omnibus Budget Reconciliation Act of 1981 (Pub. L. 97–35); E.O. 12009, 42 FR 46267, Sept. 15, 1977) (46 FR 59889, Dec. 7, 1981, as amended at 47 FR 50848, Nov. 10, 1982; 54 FR 52892, Dec. 22, 1989) $ 501.34 Public hearing.

(a) A public hearing under this subsection is for the purpose of insuring that all issues are fully and properly developed, but is not a formal adjudicatory hearing subject to the provisions of 5 U.S.C. 554 and 556.

(b) Opportunity to be heard at a public hearing. (1) Any interested person, may request, and OFE will provide, an opportunity to present oral or written data, views and arguments at a public hearing on any proposed prohibition rule or order, or on any petition for an exemption or permit. An interested person may file a request to be listed as a party to a hearing on the service list prepared by the Presiding Officer pursuant to 8501.34(d) of this part.

(2) Participants at the public hearing will have an opportunity to present oral or written data, views and arguments.

(3) A request for a public hearing may be withdrawn by the requestor at any time. If other persons have requested to participate as parties in the public hearing, OFE may cancel the hearing only if all parties agree to cancellation. OFE will give notice, whenever possible, in the FEDERAL REGISTER of the cancellation of any hearings for which there has been prior notice

(c) Presiding Officer. OFE will appoint a Presiding Officer to conduct the public hearing.

(d) Powers of the Presiding Officer. The Presiding Officer is responsible for orderly conduct of the hearing and for certification of the record of the public hearing. The Presiding Officer will not prepare any recommended findings, conclusions, or any other recommendations for disposition of a particular

case, except those of a procedural nature. The Presiding Officer has, but is not limited to the following powers:

(1) Administer oaths, affirmations and protective orders;

(2) Issue administrative subpoenas and rule on motions to modify or withdraw subpoenas that he has issued;

(3) Rule on questions as to relevance and materiality of evidence;

(4) Regulate the course of the public hearing;

(5) Hold conferences for the simplification of issues by consent of the parties;

(6) Require submission of evidence in writing where appropriate;

(7) Establish service lists;

(8) Dispose of procedural requests and similar matters; and

(9) Take other actions authorized by these rules. The Presiding Officer may also limit the number of witnesses to be presented by any party and may impose

able time limits for testimony The Presiding Officer shall establish and maintain a service list that contains the names and addresses of all parties to the OFE proceeding. At the time the Presiding Officer certifies the record, he will provide the staff of OFE with an index of the issues addressed in the record.

(e) Notice. OFE will convene a public hearing only after publishing a notice in the FEDERAL REGISTER that states the time, place and nature of the public hearing.

(1) Opportunity to question at the public hearing. At any public hearing requested pursuant to paragraph (b) of this section, with respect to disputed issues of material fact, OFE will provide any interested person an opportunity to question:

(1) Other interested persons who make oral presentations;

(2) Employees and contractors of the United States who have made written or oral presentations or who have par ticipated in the development of the proposed rule or order or in the consideration of the petition for an exemption or permit; and

(3) Experts and consultants who have provided information to any person who makes an oral presentation and

which is contained in or referred to in such presentation.

(g) OFE encourages persons who wish to question Government witnesses to submit their questions at least ten (10) days in advance of the hearing.

(h) The Presiding Officer will allow questions by any interested person to be asked of those making presentations or submitting information, data, analyses or views at the hearing. The Presiding Officer may restrict questioning if he determines that such questioning is duplicative or is not likely to result in a timely and effective resolution of issues pending in the administrative proceeding for which the hearing is being conducted.

(i) The Presiding Officer or OFE may exercise discretion to control a hearing by denying, temporarily or permanently, the privilege of participating in a particular OFE hearing if OFE finds, for example, that a person:

(1) Has knowingly made false or misleading statements, either orally or in writing;

(2) Has knowingly filed false affidavits or other writings;

(3) Lacks the specific authority to represent the person seeking an OFE action; or

(4) Has disrupted or is disrupting a hearing.

(j) Evidence. (1) The Presiding Officer is responsible for orderly submission of information, data, materials, views or other evidence into the record of the public hearing. The Presiding Officer may exclude any evidence that is irrelevant, immaterial or unduly repetitious. Judicial rules of evidence do not apply.

(2) Documentary material must be of a size consistent with ease of handling, transportation and filing, and a reasonable number of copies should be made available at the public hearing for the use of interested persons. An original and fourteen (14) copies shall be furnished to the Presiding Officer and one copy to each party listed on the service list. Large exhibits that are used during the hearing must be provided on no larger than 1142"x14" legal size paper if they are to be submitted into the hearing record.

(k) Hearing record. OFE will have a verbatim transcript made of the public

hearing. The hearing record shall re- Subpart D-Subpoenas, Special main open for a period of fourteen (14)

Report Orders, Oaths and Witdays following the public hearing, un

nesses less extended by OFE, during which time the participants at the hearing $ 501.40 Issuance. may submit additional written state

(a) Authority. As authorized by secments which will be made part of the administrative record and will be

tion 711 of FUA and section 645 of the served by the Presiding Officer upon

DEOA, the Administrator, his duly authose parties listed on the service list.

thorized agent or a Presiding Officer

may, in accordance with 10 CFR 205.8, OFE may also request additional information, data or analysis following the

sign, issue, and serve subpoenas; issue hearing in order to resolve disputed

special report orders (SRO); administer issues in the record. If OFE receives or

oaths and affirmations; take sworn tesobtains any relevant information or

timony, compel attendance of and seevidence that is placed in the record quester witnesses; control the dissemiafter the close of the public hearing or

nation of any record of testimony comment period, it will so notify all

taken pursuant to this section; and participants, and allow an additional

subpoena and reproduce books, papers, fourteen (14) days for submission of evi

correspondence, memoranda, contracts, dence in rebuttal. In addition, OFE agreements, or other relevant records may, in its discretion, re-open the

of tangible evidence including, but not hearing at the request of a party or

limited to, information retained in participant, to permit further rebuttal computerized or other automated sysof evidence or statements submitted to tems in the possession of the subpoeOFE and made part of the hearing naed person. record after the close of the hearing. (b) Petition to withdraw or modify. The transcript, together with any writ. Prior to the time specified for compliten comments submitted in the course ance in the subpoena or SRO, the perof the proceeding, will be made part of son to whom the subpoena or SRO is the record available for public inspec directed may apply for its withdrawal tion and copying at the OFE Public In or modification as provided in 10 CFR formation Office, as provided in $ 501.12. 205.8, except that if the subpoena or

SRO is issued by a duly appointed Pre$501.35 Public file.

siding Officer, the request to withdraw (a) Contents. The public file shall con

or modify must be addressed to that sist of the rule, order, or petition, with

Presiding Officer, and its grant or desupporting data and supplemental in

nial will be decided by him. formation, and all data and information submitted by interested persons. Subpart E-Prohibition Rules and Materials which are claimed by any

Orders party to be exempt from public disclosure under the Freedom of Information $501.50 ' Policy. Act (5 U.S.C. 552) shall be excised from

Except in conjunction with a prohibithe public file provided OFE has made

tion order requested by the intended a determination that the material is

recipient, OFE shall not propose to confidential in accordance with

prohibit or prohibit by rule or order $501.7(a)(11) of this part.

the use of petroleum or natural gas ei(b) Availability. The public file shall

ther as a primary energy source or in be available for inspection at room

amounts in excess of the minimum 1E190, 1000 Independence Avenue SW.,

amount necessary to maintain reliWashington, DC. Photocopies may be

ability of operation consistent with made available, on request. The charge

reasonable fuel efficiency in an existfor such copies shall be made in accord

ing installation unless and until OFE ance with a written schedule.

adopts rules establishing regulatory re[ 16 FR 59889, Dec. 7, 1981, as amended at 54 quirements governing the issuance of FR 52892, Dec. 22, 1989)

such orders and rules in accordance with the applicable procedural and sub- ing, whichever occurs later. A request stantive requirements of law.

by the proposed order recipient for an (Department of Energy Organization Act,

extension of the three-month period Pub. L. 95–91, 91 Stat. 565 (42 U.S.C. 7101 et

may be granted at OFE's discretion. seq.); Powerplant and Industrial Fuel Use

(4) Subsequent to the end of the comAct of 1978, Pub. L. 95-620, 92 Stat. 3269 (42 ment period, OFE will issue a notice of U.S.C. 8301 et seq.); Omnibus Budget Rec whether OFE intends to proceed with onciliation Act of 1981 (Pub. L. 97-35); E.O. the prohibition order proceeding. 12009, 42 FR 46267, Sept. 15, 1977)

(5) An owner or operator of a facility (47 FR 50848, Nov. 10, 1982)

that may be subject to an order may

demonstrate prior to issuance of a final 8501.51 Prohibitions by order-elect prohibition order that the facility ing powerplants.

would qualify for an exemption if the (a) OFE may prohibit by order the prohibition had been established by use of petroleum or natural gas as a rule. OFE will not delay the issuance of primary energy source or in amounts a final prohibition order or stay the efin excess of the minimum amount nec fective date of such an order for the essary to maintain reliability of oper purpose of determining whether a proation consistent with reasonable fuel posed order recipient qualifies for a efficiency in an electing powerplant, if: particular exemption unless the dem

(1) That facility has not been identi onstration or qualification is subfied as a member of a category subject mitted prior to or during the second to a final rule at the time of the three-month comment period, comissuance of such order; and

mencing after issuance of a notice of (2) The requirements of $504.6 have intention to proceed, or unless matebeen met.

rials submitted after the period (i) (b) Notice of order and public participa could not have been submitted during tion. (1) OFE may hold a conference the period through the exercise of due with the proposed order recipient prior diligence, (ii) address material changes to issuing the proposed order.

in fact or law occurring after the close (2) Pursuant to section 701 of FUA, of the period, or (iii) consist of amplifiprior to the issuance of a final order to cation or rebuttal occasioned by the an electing powerplant, OFE shall pub subsequent course of the proceeding. A lish a proposed order in the FEDERAL request by the proposed order recipient REGISTER together with a statement of for an extension of this time period the reasons for the order. In the case of may be granted at OFE's discretion. a proposed order that would prohibit (6) Subsequent to the end of the secthe use of petroleum or natural gas as ond three (3) month period, OFE will, if a primary energy source, the finding it intends to issue a final prohibition required by former section 301(b)(1) of order, prepare and issue a Notice of the Act shall be published with such Availability of a Tentative Staff Analproposed order.

ysis. Interested persons wishing a hear(3) OFE shall provide a period for the ing must request a hearing within submission of written comments of at forty-five (45) day after issuance of the least three months after the date of the Notice of Availability of the Tentative proposed order. During this period, the Staff Analysis. During this forty-five recipient of the proposed order and any (45) days period, interested persons other interested person must submit may also submit written comments on any evidence that they have deter- the Tentative Staff Analysis. mined at that time to support their re (7) If a hearing has been requested, spective positions as to each of the OFE shall provide interested persons findings that OFE is required to make with an opportunity to present oral under section 301(b) of the Act. A pro data, views and arguments at a public posed order recipient may submit addi bearing held in accordance with subtional new evidence at any time prior part of this part. The hearing will to the close of the public comment pe- consider the findings which OFE must riod which follows publication of the make in order to issue a final prohibiTentative Staff Analysis or prior to the tion order and any exemption for which close of the record of any public hear the proposed order recipient submitted

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