Page images
PDF
EPUB

of the factual statements, and the requesting party may rely upon it only to the extent that the facts of the actual situation correspond to those upon which the interpretation is based.

(b) Criteria. (1) DOE will base its FUA interpretations on the DEOA and FUA, as applicable, and the regulations and published rulings of DOE as applied to the specific factual situation presented.

(2) DOE will take into consideration previously issued interpretations dealing with the same or a related issue.

inconsistent with the amended regulation or ruling.

(f) Any person who believes he is directly affected by an interpretation issued by DOE, and who believes that he will be aggrieved by its implementation, may submit a petition for reconsideration of that interpretation to the General Counsel. DOE will acknowledge receipt of all requests for reconsideration; however, this acknowledgement in no way binds DOE to commence any proceeding on the request. If within sixty (60) days of DOE's acknowledgement of the receipt of a request for reconsideration, DOE has not issued either a notice of intent to commence a proceeding to reconsider the interpretation or a modification, revision or rescission of the original interpretation, the request for reconsideration will be deemed denied. DOE may, in its discretion, issue a formal denial of a request for reconsideration if:

(1) The request has not been filed in a timely manner, and good cause therefor has not been shown;

(2) The person requesting reconsideration is not aggrieved or otherwise injured substantially by the interpretation; or

(3) The request is defective because it fails to state and to present facts and legal argument that the interpretation was erroneous in fact or in law, or that it was arbitrary or capricious.

8501.134 Issuance and effect of inter

pretations. (a) DOE may issue an interpretation after consideration of the request for interpretation and other relevant information received or obtained during the proceeding.

(b) The interpretation will contain a written statement of the information upon which it is based and a legal analysis of and conclusions regarding the application of rulings, regulations and other precedent to the situation presented in the request.

(c) Only those persons to whom an interpretation is specifically addressed, and other persons upon whom the DOE serves the interpretation and who are directly involved in the same transaction or act, are entitled to rely upon it. No person entitled to rely upon an interpretation shall be subject to civil or criminal penalties stated in title VII of FUA for any act taken in reliance upon the interpretation, notwithstanding that the interpretation shall thereafter be declared by judicial or other competent authority to be invalid.

(d) DOE may at any time rescind or modify an interpretation on its own initiative. Rescission or modification shall be made by notifying persons entitled to rely on the interpretation that it is rescinded or modified. This notification will include a statement of the reasons for the rescission or modification and, in the case of a modification, a restatement of the interpretation as modified.

(e) An interpretation is modified by a subsequent amendment to the regulations or ruling to the extent that it is

Subpart J-Rulings 8501.140 Purpose and scope.

DOE may issue rulings in accordance with the provisions of this subpart. DOE will publish each ruling in the FEDERAL REGISTER and in 10 CFR part 518. A person is entitled to rely upon a ruling to the extent provided in this subpart.

$ 501.141 Criteria for issuance.

(a) The General Counsel may issue a ruling whenever:

(1) There has been a substantial number of inquiries with regard to similar factual situations or a particular section of the regulations; or

(2) It is determined that a ruling will be of assistance to the public in applying the regulations to a specific situation.

[blocks in formation]

$ 501.142 Modification or rescission.

(a) A ruling may be modified or rescinded by

(1) Publication of the modification or rescission by DOE in the FEDERAL REGISTER and in 10 CFR part 518; or

(2) Adoption of a rule that supersedes or modifies a prior ruling.

(b) A person shall not be subject to the sanctions or penalties stated in these regulations for actions taken in reliance upon ruling, notwithstanding that the ruling is subsequently declared to be invalid or no longer applicable. A person affected by a ruling may not rely upon it for more than 30 days after it has been rendered invalid pursuant to issuance of a superseding rule by OFE, or after it has been rescinded or modified by DOE.

а.

8 501.143 Comments.

Any interested person may file a written comment on or objection to a published ruling at any time with the Assistant General Counsel for Interpretations and Rulings at the address provided in $ 501.11.

$501.163 OFE evaluation.

(a) The record shall consist of the complaint and any supporting documents and all other relevant information developed in the course of any investigations or proceedings related to that complaint. OFE may investigate and corroborate any statement in the complaint or related documents submitted, and may utilize in its evaluation any relevant facts obtained by such investigation or from any other source of information. OFE may solicit or accept submissions from third persons relevant to the complaint or other related documents.

(b) Confidentiality of information. OFE will treat as confidential information received in any investigation of a complaint, including the identity of the complainant and the identity of any other persons who provide information to the extent such information is exempt from public disclosure under the Freedom of Information Act, 5 U.S.C. 552. OFE reserves the right to make disclosures that would be in the public interest.

Subpart K-Enforcement 8501.160 Purpose and scope.

This subpart provides the procedures by which OFE may initiate enforcement proceedings on its own behalf and by which complaints concerning a violation of the Act or any rule or order thereunder may be filed. $501.161 Filing a complaint.

(a) A complaint under this subpart must be submitted in writing over the signature of the person making the complaint in accordance with the general filing requirements stated in $ 501.7. OFE will accept oral complaints that otherwise satisfy the requirements of this subpart, but OFE may request written verification.

(b) A complaint shall be filed at the address provided in 8501.11. $ 501.162 Contents of a complaint.

A complaint must contain a complete statement of all relevant facts pertaining to the act or transaction that is the subject of the complaint. It must also include the names and addresses of

8501.164 Decision to initiate enforce

ment proceedings. After investigation of a specific complaint or based on any relevant information received or obtained during an investigation, OFE may issue a notice of violation, determine that no violation has occurred, or take such other actions as it deems appropriate. Prior to issuance of a notice of violation, and before commencement of an enforcement proceeding, OFE may transmit a draft of the notice of violation to the potentially affected person in order to promote an informal resolution of the violation.

8501.165 Commencement of enforce

ment proceedings. (a) Whenever, on the basis of any information available, OFE determines that a person is in violation or about

to be in violation of any provision of these regulations, OFE may issue a notice of violation stating, in writing and with reasonable specificity, the nature of the violation. An enforcement proceeding commences with the issuance of a notice of violation.

(b) Contents of the notice of violation. OFE will set forth in the notice of violation the nature of the violation, the relevant facts that OFE believes establish the violation and the legal basis for the conclusions reached therein. OFE may also include with the notice of violation a copy of a proposed order. The notice of violation will also state whether or not OFE proposes to assess civil penalties.

(1) If OFE proposes to assess a civil penalty, a notice of violation will be issued to the violator with an opportunity for a hearing before an Administrative Law Judge, as set forth in $501.166(a)(1) of this part, before any final determination on the violation and penalty are made by OFE. The recipient of the notice will also be informed of his right to elect to have the procedures of $501.166(a)(2) apply, in lieu of the hearing, with respect to a final determination on the assessment of any civil penalty.

(2) If OFE does not propose to assess a civil penalty, the violator will be provided the opportunity for a conference, as set forth in $ 501.166(b), before a final determination on the violation is made by OFE. OFE may, in its discretion, also provide the violator an opportunity for a hearing pursuant to $501.166(a)(1).

(c) Service. OFE will serve the notice of violation in accordance with provisions set forth in 8501.6.

(d) Rescission. If, after issuance of a notice of violation and any related investigation, OFE finds no basis for the belief that a violation has occurred, is continuing to occur, or is about to occur, OFE may rescind the notice of violation by giving written notice to that effect to the recipient. $501.166 Hearings and conferences.

(a) When a civil penalty is proposed. (1) Hearing alternative in civil penalty assessment proceedings. Unless the recipient of a notice of violation elects in writing to have the provisions of para

graph (a)(2) of this section apply, OFE will commence a proceeding to assess a penalty and, prior to a final determination on the violation and assessment of a penalty, provide an opportunity for a hearing pursuant to 5 U.S.C. 554 before an Administrative Law Judge.

(2) Election alternative in civil penalty assessment proceedings. The recipient of a notice of violation in which a civil penalty assessment has been proposed may elect, in writing, within thirty (30) days of receipt of the notice, to waive the administrative proceedings described in paragraph (a)(1) of this section. OFE will make a determination on the proposed civil penalty assessment and issue a final order to that effect within forty-five (45) days after receiving notice of the exercise of this election.

(b) When a civil penalty is not proposed-opportunity to request a ference. If a person has received a notice of violation in which a civil penalty has not been proposed, he may, within thirty (30) days after receipt of the notice, request a conference with OFE to discuss the notice. In order to request a conference he must comply with the instructions set forth in the notice.

con

$501.167 Fuel use order.

(a) General. OFE will issue a Fuel Use Order if, after considering all the information received during the proceeding, OFE determines that a person has committed, is committing, or is about to commit a violation of FUA or of an order or rule thereunder.

(b) Contents. Any Fuel Use Order issued under this section shall set forth the relevant facts and legal basis for the order and where appropriate, the final penalty assessment and the basis therefor. When an administrative hearing is requested under $501.166(a) of this part, the Fuel Use Order will include the recommended findings and conclusions of the Administrative Law Judge (ALJ) and the basis for the penalty assessment. OFE will make a final determination as to any penalty assessment or other appropriate remedy based upon the recommended findings and conclusions of the ALJ and other information in the record of the enforcement proceeding. The order will an investigation under this section, including the identities of the person investigated and any other person who provides information, to the extent it is exempt from public disclosure pursuant to 5 U.S.C. 552 and 10 CFR part 1004.

be effective upon service, unless otherwise provided therein, or stayed pursuant to $ 501.120.

(c) Service. OFE will serve a copy of the Fuel Use Order upon any person who was served a copy of the notice of violation and upon all parties to any public proceeding on the notice of violation. OFE will place a copy of each final order on file in the Public Information Office described in 8501.12.

(d) Judicial review. Any person against whom a penalty is assessed pursuant to $ 501.167(b) after a hearing before an ALJ may, within sixty (60) calendar days after the date of issuance of the order assessing such penalty, institute an action in the United States Court of Appeals for the appropriate judicial circuit for judicial review of such order in accordance with the provisions of section 723 of FUA.

Subpart L-Investigations, Viola

tions, Sanctions and Judicial Actions

$ 501.180 Investigations.

(a) General. Pursuant to section 711 of FUA, the DEOA, and in accordance with the provisions of 10 CFR 205.201, OFE may initiate and conduct investigations relating to the scope, nature, and extent of compliance by any person with the rules, regulations, and orders issued by OFE under the authority of the Act, or any order or decree of court relating thereto, or any other agency action. When the circumstances warrant, OFE may issue subpoenas as provided in subpart D of this part. OFE may also conduct investigative conferences in conjunction with any investigation.

(b) Any duly authorized representative of OFE has the authority to conduct an investigation and to take such action as he deems necessary and appropriate to the conduct of the investigation.

(c) Notification. If any person is required to furnish information or documentary evidence pursuant to a subpoena or special report order, OFE will, upon written request, inform that person as to the general purposes of the investigation.

(d) Confidentiality. OFE shall not disclose any information received during

8501.181 Sanctions.

(a) General. (1) A violation of any provision of the Act (other than section 402 of FUA), or any rule or order thereunder shall be subject to the penalties and sanctions provided in subtitle C of title VII of FUA.

(2) Each day that any provision of the Act (other than section 402), or any rule or order thereunder is violated constitutes a separate violation within the meaning of the provisions of this section relating to civil penalties.

(b) Criminal penalties. Any person who willfully violates any provision of the Act (other than section 402), or any rule or order thereunder will be subject to a fine of not more than $50,000, or to imprisonment for not more than 1 year, or both, for each violation.

(c) Civil penalties. (1) Any person who violates any provisions of the Act (other than section 402) or any rule or order thereunder will be subject to the following civil penalty, which may not exceed $27,500 for each violation: Any person who operates a powerplant or major fuel burning installation under an exemption, during any 12-calendarmonth period, in excess of that authorized in such exemption will be assessed a civil penalty of up to $3.30 for each MCF of natural gas or up to $11 for each barrel of oil used in excess of that authorized in the exemption.

(2) OFE may compromise and settle, and collect civil penalties whenever it considers it to be appropriate or advisable.

(d) Corporate personnel. (1) If a director, officer, or agent of a corporation willfully authorizes, orders, or performs any act or practice constituting in whole or in part a violation of the Act, or any rule or order thereunder, he will be subject to the penalties specified in paragraphs (b) and (c) of this section without regard to any penalties to which the corporation may be subject. He will not, however, be subject to imprisonment under paragraph (b) of

1

this section unless he knew of non- Subpart M-Use of Natural Gas or compliance by the corporation, or had

Petroleum for Emergency and received from OFE notice of non

Unanticipated Equipment compliance by the corporation. (2) Purposes of this paragraph:

Outage Purposes (i) Agent includes any employee or

8501.190 Purpose and scope. other person acting on behalf of the corporation on either a temporary or

(a) If a person operates a powerplant permanent basis; and

covered by any of the prohibitions of (ii) Notice of noncompliance is a final titles II, III, or IV of FUA, 8501.191 of Fuel Use Order issued under $501.167 of this subpart establishes procedures to this part.

be followed for the use of minimum

amounts of natural gas or petroleum [46 FR 59889, Dec. 7, 1981, as amended at 62

under FUA section 103(a)(15)(B) in FR 46183, Sept. 2, 1997)

order to alleviate or prevent unantici$ 501.182 Injunctions.

pated equipment outages and emerWhenever it appears to OFE that any

gencies directly affecting the public

health, safety, or welfare that would person has committed, is committing,

result from electric power outages. or is about to commit a violation of any provision of the Act, or any rule or

(b) Explanatory note: If a person operorder thereunder, OFE may, in accord

ates a rental boiler as a powerplant ance with section 724 of FUA, bring a

covered by any of the prohibitions of civil action in the appropriate United

titles II, III, or IV of FUA, he may be States District Court to enjoin such

able to use the provisions of this subacts or practices. The relief sought

part for the emergency use of natural may include a mandatory injunction

gas or petroleum. commanding any person to comply (54 FR 52893, Dec. 22, 1989) with any provision of such provision, order or rule, the violation of which is 8501.191 Use of natural gas or petroprohibited by section 724 of FUA and leum for certain unanticipated may also include interim equitable re- equipment outages and lief.

gencies defined

section

103(a)(15)(B) of the act. $501.183 Citizen suits.

(a) In the event of the occurrence or (a) General. A person who believes he

imminent occurrence of an emergency, is aggrieved by the failure of OFE to or of the occurrence or imminent ocperform any nondiscretionary act of currence of an unanticipated equipduty under the Act may file a Petition ment outage in the unit, an owner or for Action for OFE to take such action operator of a powerplant is automatias he may feel to be proper. This peti- cally permitted to use minimum tion must be filed at the address pro- amounts of natural gas or petroleum in vided in $ 501.11. The petition must the unit or in a substitute unit to prespecify the action requested and set vent or alleviate the outage or to preforth the facts and legal arguments vent or alleviate the emergency if he that constitute the basis for the re- complies with procedures contained in quest. The filing of a Petition for Ac- paragraph (b) of this section. tion will serve as notice to OFE under (b) If the use of minimum amounts of FUA section 725(b) for purposes of any petroleum or natural gas is required citizens suit that may be subsequently for purposes specified in this section,

the owner or operator must notify OFE (b) OFE decision. Within sixty (60) of such use by telegram or telephone days of receiving the Petition for Ac- within 24 hours after the commencetion, OFE will notify the person giving ment of such use. Immediately therenotice under this section that it has in- after a written confirmation must be stituted the action requested or that submitted to OFE, describing, to the other described action is being taken, best estimate of the owner or operator, or that other described action is being (1) the nature of the emergency and (2) taken, or that no action is being taken how long petroleum or natural gas use and the reasons therefor.

is likely to be required.

emer

in

filed.

« PreviousContinue »