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

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

$501.33 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

8501.34 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 $501.34(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 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.

(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 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 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 ol 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 origina and fourteen (14) copies shall be fur nished to the Presiding Officer and on copy to each party listed on the servici list. Large exhibits that are used dur ing the hearing must be provided on a larger than 1142"x14" legal size paper i they are to be submitted into the hear ing record.

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

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)

or

$ 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 à 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

ing, whichever occurs later. A request by the proposed order recipient for an extension of the three-month period may be granted at OFE's discretion.

(4) Subsequent to the end of the comment 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 effective date of such an order for the purpose of determining whether a proposed order recipient qualifies for a particular exemption unless the demonstration qualification is submitted prior to or during the second three-month comment period, commencing after issuance of a notice of intention to proceed, or unless materials 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 amplification 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, if 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 personi with an opportunity to present oral data, views and arguments at a public hearing held in accordance with sub part C of this part. The hearing wil consider the findings which OFE mus make in order to issue a final prohibi tion order and any exemption for whicl the proposed order recipient submitte

its demonstration in accordance with published in the FEDERAL REGISTER. paragraph (b)(5) of this section.

The order will become effective 60 days (8) Upon request by the recipient of after publication in the FEDERAL REGthe proposed prohibition order, the ISTER. combined public comment periods pro (d) Request for order. (1) A proceeding vided for in this section may be re

for issuance of a prohibition order to a duced to a minimum of forty-five (45)

specific unit may be commenced by days from the time of publication of

OFE, in its sole discretion, in response the proposed order.

to a request for an order filed by the (9) OFE may terminate a prohibition order proceeding at any time prior to

owner or operator of a facility. the date upon which a final order shall

(2) A petition requesting OFE to combecome effective. Should OFE termi

mence a prohibition order proceeding nate the proceeding, it will notify the

should include the following informaproposed order recipient, and publish a

tion for all units to be covered by the notice in the FEDERAL REGISTER.

prohibition order: (c) Decision to issue a final order. (1) (i) A statement of the reasons the OFE will base its determination to owner or operator is seeking the issue an order on consideration of the issuance of a prohibition order; and whole record or those parts thereof (ii) Sufficient information for OFE to cited by a party and supported by and make the findings required by section in accordance with reliable, probative 301(b) of FUA. and substantial evidence.

(3) If OFE determines to accept the (2) OFE shall include in the final

request, OFE shall publish a proposed order a written statement of the perti

order in the FEDERAL REGISTER tonent facts, a statement of the basis

gether with a statement of the reasons upon which the final order is issued, a

for the order. recitation of the conclusions regarding the required findings and qualifications (Department of Energy Organization Act, for exemptions. The final order shall Pub. L. 95-91, 91 Stat. 565 (42 U.S.C. 7101 et state the effective date of the prohibi

seq.); Energy Supply and Environmental Cotion contained therein. If it is dem

ordination Act of 1974; Pub. L. 93-319, as onstrated that the facility would have

amended by Pub. L. 94-163, Pub. L. 95-70, (15 been granted a temporary exemption,

U.S.C. 719 et seq.); Powerplant and Industrial

Fuel Use Act of 1978, Pub. L. 95–620, 92 Stat. the effective date of the prohibition

3269 (42 U.S.C. 8301 et seq.); Omnibus Budget contained in the final order shall be de

Reconciliation Act of 1981, (Pub. L. 97–35); layed until such time as the temporary

E.O. 12009, 42 FR 46267, Sept. 15, 1977) exemption would have terminated. If it is demonstrated that a facility will

(46 FR 59889, Dec. 7, 1981, as amended at 47 need a period of time to comply with

FR 17042, Apr. 21, 1982; 47 FR 50848, Nov. 10, the final order, the effective date of the

1982; 54 FR 52892, Dec. 22, 1989) prohibition contained in the final order

$ 501.52 Prohibitions by order-certimay be delayed, in OFE's discretion, so

fying powerplants. as to allow an order recipient to comply with the final order.

(a) OFE may prohibit by order the (3) OFE will enclose with a copy of use of petroleum or natural gas as a the final order, where appropriate, a primary energy source or in amounts schedule of steps that should be taken in excess of the minimum amount necby a stated date (a compliance sched essary to maintain reliability of operule) to ensure that the affected facility ation consistent with maintaining reawill be able to comply with the prohibi sonable fuel efficiency in an existing tions stated in the order by the effec powerplant if the owner or operator of tive date of the prohibition contained the powerplant certifies, and OFE conin the final order. The compliance curs in such certification in accordance schedule may require the affected per

with the requirements of $8504.5, 504.6 son to take steps with regard to a unit

and 504.8. 60 days after service of the final order.

(b) Notice of order and participation. (1) (4) A copy of the final order and a

OFE may hold a conference with the summary of the basis therefore will be

194-031 D-01--2

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