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advisable. OFE will, however, place in the hearing, and outline questions that the public file a record of any con are to be posed. ference.
(Department of Energy Organization Act, $501.33 Request for a public hearing.
Pub. L. 95-91, 91 Stat. 565 (42 U.S.C. 7101 et
seq.); Powerplant and Industrial Fuel Use (a) New facilities. In the case of a peti Act of 1978, Pub. L. 95-620, 92 Stat. 3269 (42 tion for an exemption under title II of U.S.C. 8301 et seq.); Omnibus Budget RecFUA, any interested person may sub
onciliation Act of 1981 (Pub. L. 97-35); E.O. mit a written request that OFE con
12009, 42 FR 46267, Sept. 15, 1977) vene a public hearing in accordance [46 FR 59889, Dec. 7, 1981, as amended at 47 with section 701 of FUA no later than FR 50848, Nov. 10, 1982; 54 FR 52892, Dec. 22, forty-five (45) days after publication of
1989) either the Notice of Acceptance of a petition, or in the case of a certification
8501.34 Public hearing. exemption, the publication of the No (a) A public hearing under this subtice of Acceptance of Certification. section is for the purpose of insuring This time period may be extended at that all issues are fully and properly the discretion of OFE.
developed, but is not a formal adjudica(b) Eristing powerplants. In the case of tory hearing subject to the provisions a petition for an exemption from a pro
of 5 U.S.C. 554 and 556. hibition imposed by a final rule or (b) Opportunity to be heard at a public order issued by OFE to an electing hearing. (1) Any interested person, may powerplant under former sections of request, and OFE will provide, an optitle III of FUA or a petition for à per
portunity to present oral or written mit under $ 504.1, any interested person
data, views and arguments at a public may submit a written request that hearing on any proposed prohibition OFE convene a public hearing in ac
rule or order, or on any petition for an cordance with section 701 of FUA with exemption or permit. An interested in 45 days after the notice of the filing person may file a request to be listed of a petition is published in the FED
as a party to a hearing on the service ERAL REGISTER. In the case of a pro
list prepared by the Presiding Officer posed prohibition rule or order issued
pursuant to 8501.34(d) of this part. to an electing powerplant under former
(2) Participants at the public hearing section 301, the 45 day period in which
will have an opportunity to present to request a public hearing shall com
oral or written data, views and argu
ments. mence upon the publication of the Notice of Availability of the Tentative
(3) A request for a public hearing Staff Analysis. In the case of a pro
may be withdrawn by the requestor at posed prohibition order to be issued to
any time. If other persons have recertifying powerplants under section
quested to participate as parties in the 301 of FUA, as amended, the 45 day pe
public hearing, OFE may cancel the riod in which to request a public hear
hearing only if all parties agree to caning commences upon publication of the
cellation. OFE will give notice, whenNotice of Acceptance of Certification.
ever possible, in the FEDERAL REGISTER
of the cancellation of any hearings for This time limit may be extended at the
which there has been prior notice. discretion of OFE in accordance with
(c) Presiding Officer. OFE will appoint $501.7.
a Presiding Officer to conduct the pub(c) Contents of request. A request for a
lic hearing. public hearing must be in writing and must include a description of the re
(d) Powers of the Presiding Officer. The
Presiding Officer is responsible for orquesting party's interest in the pro
derly conduct of the hearing and for ceeding and a statement of the issues
certification of the record of the public involved. The request should, to the ex
hearing. The Presiding Officer will not tent possible, identify any witnesses
prepare any recommended findings, that are to be called, summarize the
conclusions, or any other recommendaanticipated testimony to be given at
tions 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 reasonable 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.
(f) 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 participated 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.
(8) 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 perma. nently, 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
(1) 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 irrel. evant, 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 reason. able 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 fur nished to the Presiding Officer and one copy to each party listed on the service list. Large exhibits that are used dur ing the hearing must be provided on no larger than 1142"x14" legal size paper il they are to be submitted into the hear ing record.
(k) Hearing record. OFE will have a verbatim transcript made of the public
hearing. The hearing record shall re- Subpart
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 8501.40 Issuance. may submit additional written statements which will be made part of the
(a) Authority. As authorized by secadministrative 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 OFE may also request additional infor
may, in accordance with 10 CFR 205.8, mation, 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 Pre501.35 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 à 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 for such copies shall be made in accord
reasonable fuel efficiency in an exist
ing installation unless and until OFE ance with a written schedule.
adopts rules establishing regulatory re[46 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 substantive requirements of law. (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) [47 FR 50848, Nov. 10, 1982]
ing, whichever occurs later. A request by the proposed order recipient for ar extension of the three-month period may be granted at OFE's discretion.
(4) Subsequent to the end of the com ment period, OFE will issue a notice of whether OFE intends to proceed with the prohibition order proceeding.
(5) An owner or operator of a facility that may be subject to an order may demonstrate prior to issuance of a final prohibition order that the facility would qualify for an exemption if the prohibition had been established by rule. OFE will not delay the issuance of a final prohibition order or stay the ef fective date of such an order for the purpose of determining whether a proposed order recipient qualifies for a particular exemption unless the dem. onstration or qualification is submitted prior to or during the second three-month comment period, com mencing after issuance of a notice o: intention to proceed, or unless mate rials submitted after the period (1) could not have been submitted during the period through the exercise of due diligence, (ii) address material changes in fact or law occurring after the close of the period, or (iii) consist of amplifi. cation or rebuttal occasioned by the subsequent course of the proceeding. A request by the proposed order recipient for an extension of this time period may be granted at OFE's discretion.
(6) Subsequent to the end of the second three (3) month period, OFE will, it it intends to issue a final prohibition order, prepare and issue a Notice of Availability of a Tentative Staff Analysis. Interested persons wishing a hearing must request a hearing within forty-five (45) day after issuance of the Notice of Availability of the Tentative Staff Analysis. During this forty-five (45) days period, interested persons may also submit written comments on the Tentative Staff Analysis.
(7) If a hearing has been requested, OFE shall provide interested persons with an opportunity to present oral data, views and arguments at a public hearing held in accordance with subpart of this part. The hearing will consider the findings which OFE must make in order to issue a final prohibition order and any exemption for which the proposed order recipient submitted
$ 501.51 Prohibitions by order-elect
ing powerplants. (a) OFE may prohibit by order the use of petroleum or natural gas as a primary energy source or in amounts in excess of the minimum amount necessary to maintain reliability of operation consistent with reasonable fuel efficiency in an electing powerplant, if:
(1) That facility has not been identified as a member of a category subject to a final rule at the time of the issuance of such order; and
(2) The requirements of $504.6 have been met.
(b) Notice of order and public participation. (1) OFE may hold a conference with the proposed order recipient prior to issuing the proposed order.
(2) Pursuant to section 701 of FUA, prior to the issuance of a final order to an electing powerplant, OFE shall publish a proposed order in the FEDERAL REGISTER together with a statement of the reasons for the order. In the case of a proposed order that would prohibit the use of petroleum or natural gas as a primary energy source, the finding required by former section 301(b)(1) of the Act shall be published with such proposed order.
(3) OFE shall provide a period for the submission of written comments of at least three months after the date of the proposed order. During this period, the recipient of the proposed order and any other interested person must submit any evidence that they have determined at that time to support their respective positions as to each of the findings that OFE is required to make under section 301(b) of the Act. A proposed order recipient may submit additional new evidence at any time prior to the close of the public comment period which follows publication of the Tentative Staff Analysis or prior to the close of the record of any public hear
its demonstration in accordance with paragraph (b)(5) of this section.
(8) Upon request by the recipient of the proposed prohibition order, the combined public comment periods provided for in this section may be reduced to a minimum of forty-five (45) days from the time of publication of the proposed order.
(9) OFE may terminate a prohibition order proceeding at any time prior to the date upon which a final order shall become effective. Should OFE terminate the proceeding, it will notify the proposed order recipient, and publish a notice in the FEDERAL REGISTER.
(c) Decision to issue a final order. (1) OFE will base its determination to issue an order on consideration of the whole record or those parts thereof cited by a party and supported by and in accordance with reliable, probative and substantial evidence.
(2) OFE shall include in the final order a written statement of the pertinent facts, a statement of the basis upon which the final order is issued, a recitation of the conclusions regarding the required findings and qualifications for exemptions. The final order shall state the effective date of the prohibition contained therein. If it is demonstrated that the facility would have been granted a temporary exemption, the effective date of the prohibition contained in the final order shall be delayed until such time as the temporary exemption would have terminated. If it is demonstrated that a facility will need a period of time to comply with the final order, the effective date of the prohibition contained in the final order may be delayed, in OFE's discretion, so as to allow an order recipient to comply with the final order.
(3) OFE will enclose with a copy of the final order, where appropriate, a schedule of steps that should be taken by a stated date (a compliance schedule) to ensure that the affected facility will be able to comply with the prohibitions stated in the order by the effective date of the prohibition contained in the final order. The compliance schedule may require the affected person to take steps with regard to a unit 60 days after service of the final order.
(4) A copy of the final order and a summary of the basis therefore will be
published in the FEDERAL REGISTER. The order will become effective 60 days after publication in the FEDERAL REGISTER.
(d) Request for order. (1) A proceeding for issuance of a prohibition order to a specific unit may be commenced by OFE, in its sole discretion, in response to a request for an order filed by the owner or operator of a facility.
(2) A petition requesting OFE to commence a prohibition order proceeding should include the following information for all units to be covered by the prohibition order:
(i) A statement of the reasons the owner or operator is seeking the issuance of a prohibition order; and
(ii) Sufficient information for OFE to make the findings required by section 301(b) of FUA.
(3) If OFE determines to accept the request, OFE shall publish a proposed order in the FEDERAL REGISTER together with a statement of the reasons for the order. (Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 (42 U.S.C. 7101 et seq.); Energy Supply and Environmental Coordination Act of 1974; Pub. L. 93-319, as amended by Pub. L. 94–163, Pub. L. 95–70, (15 U.S.C. 719 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 17042, Apr. 21, 1982; 47 FR 50848, Nov. 10, 1982; 54 FR 52892, Dec. 22, 1989)
8501.52 Prohibitions by order-certi.
fying powerplants. (a) OFE may prohibit by order the use of petroleum or natural gas as a primary energy source or in amounts in excess of the minimum amount necessary to maintain reliability of operation consistent with maintaining reasonable fuel efficiency in an existing powerplant if the owner or operator of the powerplant certifies, and OFE concurs in such certification in accordance with the requirements of $8504.5, 504.6 and 504.8.
(b) Notice of order and participation. (1) OFE may hold a conference with the