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590.407 Reports of changes.

it opposes an application or other re

quested action. Subpart E-Applications for Rehearing

(c) Decisional employee means the As590.501 Filing.

sistant Secretary, presiding officials at 590.502 Application is not a stay.

conferences, oral presentations or 590.503 Opinion and order on rehearing.

trial-type hearings, and any other em590.504 Denial by operation of law.

ployee of the DOE, including consult590.505 Answers to applications for rehear ants and contractors, who are, or may ing.

reasonably be expected to be, involved AUTHORITY: Secs. 301(b), 402(f), and 644, in the decision-making process, includPub. L. 95-91, 91 Stat. 578, 585, and 599 (42 ing advising the Assistant Secretary on U.S.C. 7151(b), 7172(f), and 7254), Sec. 3, Act of the resolution of issues involved in a June 21, 1938, c. 556, 52 Stat. 822 (15 U.S.C.

proceeding. The term includes those 717b); E.O. 12009 (42 FR 46267, September 15,

employees of the DOE assisting in the 1977); DOE Delegation Order Nos. 0204-111 and 0204-127 (49 FR 6684, February 22, 1984; 54 FR

conduct of trial-type hearings by per11437, March 20, 1989).

forming functions on behalf of the As

sistant Secretary or presiding official. SOURCE: 54 FR 53531, Dec. 29, 1989, unless

(d) DOE means the Department of otherwise noted.

Energy, of which FE is a part.

(e) DOE Act means the Department of Subpart A-General Provisions

Energy Organization Act, Public Law

95-91, 91 Stat. 565 (42 U.S.C. 7101 et seq.). $590.100 OMB Control Numbers.

(f) FE means the Office of The AssistThe information collection require ant Secretary for Fossil Energy. ments contained in this part have been

(g) FERC means the Federal Energy approved by the Office of Management Regulatory Commission. and Budget under Control No. 1903-0081.

(h) Interested person means a person,

other than a decisional employee, 8590.101 Purpose and scope.

whose interest in a proceeding goes beThe purpose of this part is to estab yond the general interest of the public lish the rules and procedures required as a whole and includes applicants, into be followed by persons to obtain au- tervenors, competitors of applicants, thorizations from DOE to import or ex- and other individuals and organizaport natural gas under the Natural Gas tions, including non-profit and public Act and by all other persons interested interest organizations, and state, local, in participating in a natural gas im- and other public officials, with a proport or export proceeding before the prietary, financial or other special inagency. This part establishes the pro- terest in the outcome of a proceeding. cedural rules necessary to implement The term does not include other federal the authorities vested in the Secretary agencies or foreign governments and of Energy by sections 301(b) and 402(f) their representatives, unless the agenof the DOE Act, which have been dele cy, foreign government, or representagated to the Assistant Secretary.

tive of a foreign government is a party

to the proceeding. 8590.102 Definitions.

(i) Natural gas means natural gas and As used in this part:

mixtures of natural gas and synthetic (a) Assistant Secretary means the As- natural gas, regardless of physical form sistant Secretary for Fossil Energy or or phase, including liquefied natural any employee of the DOE who has been gas and gels primarily composed of delegated final decisional authority. natural gas.

(b) Contested proceeding means a pro- (j) NGA means the Natural Gas Act of ceeding:

June 21, 1938, c. 556, 52 Stat. 821 (15 (1) Where a protest or a motion to in- U.S.C. 717 et seq.). tervene, or a notice of intervention, in (k) Off-the-record communication opposition to an application or other means a written or oral communicarequested action has been filed, or

tion not on the record which is rel(2) Where a party otherwise notifies evant to the merits of a proceeding, the Assistant Secretary and the other and about which the parties have not parties to a proceeding in writing that been given reasonable prior notice of

the nature and purpose of the commu- order by the Assistant Secretary under nication and an opportunity to be subparts D and E. present during such communication or, (p) State commission means the reguin the case of a written communica- latory body of a state or municipality tion, an opportunity to respond to the having jurisdiction to regulate rates communication. It does not include and charges for the sale of natural gas communications concerned solely with to consumers within the state or muprocedures which are not relevant to nicipality, or having any regulatory juthe merits of a proceeding. It also does risdiction over parties involved in the not include general background discus import or export arrangement. sions about an entire industry or natural gas markets or communications of

8590.103 General requirements for fil

ing documents with FE. a general nature made in the course of developing agency policy for future (a) Any document, including but not general application, even though these

limited to an application, amendment discussions may relate to the merits of

of an application, request, petition, a particular proceeding.

motion, answer, comment, protest, (1) Party means an applicant, any per

complaint, and any exhibit submitted son who has filed a motion for and been

in connection with such documents, granted intervenor status or whose mo

shall be filed with FE under this part. tion to intervene is pending, and any

Such document shall be considered ofstate commission which has intervened

ficially filed with FE when it has been by notice pursuant to $590.303(a).

received and stamped with the time (m) Person means any individual,

and date of receipt by the Office of

Fuels Programs, FE. Documents transfirm, estate, trust, partnership, asso

mitted to FE must be addressed as prociation, company, joint-venture, cor

vided in $590.104. All documents and exporation, United States local, state and

hibits become part of the record in the federal governmental unit or instru

official FE docket file and will not be mentality thereof, charitable, edu

returned. An original and fifteen (15) cational or other institution, and oth

copies of all applications, filings and ers, including any officer, director,

submittals shall be provided to FE. No owner, employee, or duly authorized

specific format is required. Applicants representative of any of the foregoing.

required to file quarterly reports as a (n) Presiding official means any em

condition to an authorization need ployee of the DOE who has been des

only file an original and four (4) copies. ignated by the Assistant Secretary to

(b) Upon receipt by FE, each applicaconduct any stage of a proceeding,

tion or other initial request for action which may include presiding at a con

shall be assigned a docket number. Any ference, oral presentation, or trial-type

petition, motion, answer, request, comhearing, and who has been delegated

ment, protest, complaint or other docthe authority of the Assistant Sec

ument filed subsequently in a docketed retary to make rulings and issue orders

proceeding with FE shall refer to the in the conduct of such proceeding,

assigned docket number. All docuother than final opinions and orders,

ments shall be signed either by the perorders to show cause, emergency in

son upon whose behalf the document is terim orders, or conditional decisions

filed or by an authorized representaunder subpart D and orders on rehear tive. Documents signed by an authoring under subpart E.

ized representative shall contain a cer(0) Proceeding means the process and tified statement that the representaactivity, and any part thereof, insti- tive is a duly authorized representative tuted by FE either in response to an unless the representative has a cerapplication, petition, motion or other tified statement already on file in the filing under this part, or on its own ini FE docket of the proceeding. All docutiative, by which FE develops and con- ments shall also be verified under oath siders the relevant facts, policy and ap- or affirmation by the person filing, or plicable law concerning the importa by an officer or authorized representation or exportation of natural gas and tive of the firm having knowledge of which may lead to the issuance of an the facts alleged. Each document filed with FE shall contain a certification $590.106 Dockets. that a copy has been served as required

The FE shall maintain a docket file by $590.107 and indicate the date of

of each proceeding under this part, service. Service of each document must

which shall contain the official record be made not later than the date of the

upon which all orders provided for in filing of the document.

subparts D and E shall be based. The (c) A person who files an application

official record in a particular proshall state whether, to the best knowl

ceeding shall include the official servedge of that person, the same or a re

ice list, all documents filed under lated matter is being considered by any

$590.103, the official transcripts of any other part of the DOE, including the

procedures held under subpart C, and FERC, or any other Federal agency or

opinions and orders issued by FE under department and, if so, shall identify

subparts D and E, and reports of conthe matter and the agency or depart

tract amendments under $590.407. All ment.

dockets shall be available for inspec8590.104 Address for filing documents.

tion and copying by the public during

regular business hours between 8 a.m. All documents filed under this part

and 4:30 p.m. Dockets are located in the shall be addressed to: Office of Fuels

Office of Fuels Programs, FE, Docket Programs, Fossil Energy, U.S. Depart

Room 3F-056, Forrestal Building, 1000 ment of Energy, Docket Room 3F-056,

Independence Avenue SW., Washington, FE-50, Forrestal Building, 1000 Inde- DC 20585. pendence Avenue SW., Washington, DC 20585. All hand delivered documents $590.107 Service. shall be filed with the Office of Fuels

(a) An applicant, any other party to a Programs at the above address between

proceeding, or a person filing a protest the hours of 8 a.m. and 4:30 p.m., Mon

shall serve a copy of all documents day through Friday, except Federal

filed with FE upon all parties unless holidays.

otherwise provided in this part. The

copy of a document served upon parties 8590.105 Computation of time.

shall be a true copy of the document (a) In computing any period of time filed with FE, but does not have to be prescribed or allowed by these regula- a copy stamped with the time and date · tions, the day of the act or event from of receipt by FE. The FE shall mainwhich the designated period of time be- tain an official service list for each gins to run is not included. The period proceeding which shall be provided of time begins to run the next day after upon request. the day of the act or event. The last (b) When the parties are not known, day of the period so computed is in- such as during the initial comment pecluded unless it is a Saturday, Sunday, riod following publication of the notice or legal Federal holidayin which of application, service requirements event the period runs until the end of under paragraph (a) of this section may the next day that is neither a Satur- be met by serving a copy of all docuday, Sunday, nor a legal Federal holi- ments on the applicant and on FE for day, unless otherwise provided by this inclusion in the FE docket in the propart or by the terms of an FE order. ceeding. Documents received after the regular (c) All documents required to be business hours of 8 a.m. to 4:30 p.m. are served under this part may be served deemed filed on the next regular busi- by hand, certified mail, registered ness day.

mail, or regular mail. It shall be the re(b) When a document is required to sponsibility of the serving party to enbe filed with FE within a prescribed sure that service is effected in a timely time, an extension of time to file may manner. Service is deemed complete be granted for good cause shown.

upon delivery or upon mailing, which(c) An order is issued and effective ever occurs first. when date stamped by the Office of (d) Service upon a person's duly auFuels Programs, FE, after the order thorized representatives on the official has been signed unless another effec- service list shall constitute service tive date is specified in the order.

upon that person.

versely affected on account of the violation.

(b) The prohibitions of paragraph (a) of the section shall apply only to contested proceedings and begin at the time either a protest or a motion to intervene or notice of intervention in opposition to the application or other requested action is filed with FE, or a party otherwise specifically notifies the Assistant Secretary and the other parties in writing of its opposition to the application or other requested action, whichever occurs first.

(e) All FE orders, notices, or other FE documents shall be served on the parties by FE either by hand, registered mail, certified mail, or regular mail, except as otherwise provided in this part. 8590.108 Off-the-record communica

tions. (a) In any contested proceeding under this part:

(1) No interested person shall make an off-the-record communication or knowingly cause an off-the-record communication to be made to any decisional employee.

(2) No decisional employee shall make an off-the-record communication or knowingly cause an off-the-record communication to be made to any interested person.

(3) A decisional employee who receives, makes, or knowingly causes to be made an oral off-the-record communication prohibited by this section shall prepare a memorandum stating the substance of the communication and any responses made to it.

(4) Within forty-eight (48) hours of the off-the-record communication, a copy of all written off-the-record communications or memoranda prepared in compliance with paragraph (a)(3) of this section shall be delivered by the decisional employee to the Assistant Secretary and to the Deputy Assistant Secretary for Fuels Programs. The materials will then be made available for public inspection by placing them in the docket associated with the proceeding.

(5) Requests by a party for an opportunity to rebut, on the record, any facts or contentions in an off-therecord communication may be filed in writing with the Assistant Secretary. The Assistant Secretary shall grant such requests only for good cause.

(6) Upon being notified of an off-therecord communication made by a party in violation of this section, the Assistant Secretary may, to the extent consistent with the interests of justice and the policies of the NGA and the DOE Act, require the party to show cause why the party's claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise ad

8590.109 FE investigations.

The Assistant Secretary or the Assistant Secretary's delegate may investigate any facts, conditions, practices, or other matters within the scope of this part in order to determine whether any person has violated or is about to violate any provision of the NGA or other statute or any rule, regulation, or order within the Assistant Secretary's jurisdiction. In conducting such investigations, the Assistant Secretary or the Assistant Secretary's delegate may, among other things, subpoena witnesses to testify, subpoena or otherwise require the submission of documents, and order testimony to be taken by deposition.

Subpart B-Applications for Au

thorization to Import or Export

Natural Gas $590.201 General.

(a) Any person seeking authorization to import or export natural gas into or from the United States, to amend an existing import or export authorization, or seeking any other requested action, shall file an application with the FE under the provisions of this part.

(b) Applications shall be filed at least ninety (90) days in advance of the proposed import or export or other requested action, unless a later date is permitted for good cause shown. [54 FR 53531, Dec. 29, 1989; 55 FR 14916, Apr. 19, 1990) $590.202 Contents of applications.

(a) Each application filed under $590.201 shall contain the exact legal name of the applicant, the names, titles, and mailing addresses of a maximum of two persons for the official service list, a statement describing the action sought from FE, the justification for such action, including why the proposed action is not inconsistent with the public interest, and the FE docket number, if applicable.

(b) Each application shall include the matters listed below to the extent applicable. All factual matters shall be supported to the extent practicable by the necessary data or documents. Copies of relevant documents filed or intended to be filed with FERC may be submitted to satisfy the requirements of this section. Topics to be addressed or described shall include:

(1) The scope of the project, including the volumes of natural gas involved, expressed in either Mcf or Bcf and their Btu equivalents, the dates of commencement and completion of the proposed import or export, and the facilities to be utilized or constructed;

(2) The source and security of the natural gas supply to be imported or exported, including contract volumes and a description of the gas reserves supporting the project during the term of the requested authorization;

(3) Identification of all the participants in the transaction, including the parent company, if any, and identification of any corporate or other affiliations among the participants;

(4) The terms of the transaction, such as take-or-pay obligations, make-up provisions, and other terms that affect the marketability of the gas;

(5) The provisions of the import arrangement which establish the base price, volume requirements, transportation and other costs, and allow adjustments during the life of the project, and a demonstration as to why the import arrangement is and will remain competitive over the life of the project and is otherwise not inconsistent with the public interest;

(6) For proposed imports, the need for the natural gas by the applicant or applicant's prospective customers, including a description of the persons who are expected to purchase the natural gas; and for proposed exports, the lack of a national or regional need for the gas; and

(7) The potential environmental impact of the project. To the extent possible, the application shall include a listing and description of any environmental assessments or studies being performed on the proposed gas project. The application shall be updated as the status of any environmental assessments changes.

(c) The application shall also have attached a statement, including a signed opinion of legal counsel, showing that a proposed import or export of natural gas is within the corporate powers of the applicant and a copy of all relevant contracts and purchase agreements.

(d) The Assistant Secretary or the Assistant Secretary's delegate may at any time require the applicant and other parties to make supplemental filings of additional information necessary to resolve issues raised by the application.

(e) All information and data filed in support of or against an application will be placed in the official FE docket file of the proceeding and will not be afforded confidential treatment, unless the party shows why the information or data should be exempted from public disclosure and the Assistant Secretary or Assistant Secretary's delegate determines that such information or data shall be afforded confidential treatment. Such determination shall be made in accordance with 10 CFR 1004.11. [54 FR 53531, Dec. 29, 1989; 55 FR 18227, May 1, 1990] $ 590.203 Deficient applications.

If an application is incomplete or otherwise deemed deficient, the Assistant Secretary or the Assistant Secretary's delegate may require the applicant to submit additional information or exhibits to remedy the deficiency. If the applicant does not remedy the deficiency within the time specified by the Assistant Secretary or the Assistant Secretary's delegate, the application may be dismissed without prejudice to refiling at another time.

$ 590.204 Amendment or withdrawal of

applications. (a) The applicant may amend or supplement the application at any time

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