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issuance of the final order in all cases haustion of administrative remedies where an EIS is required.
for purposes of judicial review does not (b)(1) OFE shall serve a copy of the require filing a petition pursuant to order granting or denying a petition subpart G for modification or rescisfor exemption to the petitioner and all sion of the order to be reviewed. persons on the service list in cases involving a public hearing.
Subpart G-Requests for Modifica(2) OFE shall publish any order tion or Rescission of a Rule or granting or denying a petition under Order this subpart in the FEDERAL REGISTER together with a statement of the rea 8501.100 Purpose and scope. sons for the grant or denial.
(a) Anyone may request that OFE (c)(1) Any order granting or denying
commence a rulemaking proceeding à petition for exemption shall be based
pursuant to 5 U.S.C. 553(e); however, upon consideration of the whole record or those parts thereof cited by a party be followed by–
this subpart provides the procedures to and supported by, and in accordance
(1) An interested person seeking the with, reliable, probative and sub
modification or rescission of a prohibistantive evidence.
tion by rule applicable to a new facil(2) The denial of a petition for ex
ity; emption shall be without prejudice to
(2) An owner or operator of a facility the petitioner's right to submit an named in a prohibition by rule requestamended petition. OFE may, however,
ing the modification or rescission of reject the amended petition if it is not that rule; or materially different from the denied
(3) An owner or operator subject to petition.
an exemption order or a specific prohi(d) OFE may design any terms and
bition imposed by order requesting the conditions included in any temporary modification or a rescission of that exemption issued or extended under order. section 211 of FUA, to ensure, among (b) OFE also may commence a modiother things, that upon expiration of fication or rescission proceeding on its the exemption the persons and power own initiative. plant covered by the exemption will comply with the applicable prohibi- $501.101 Proceedings to modify or retions under FUA. For purposes of the scind a rule or order. provision, the subsequent grant of a (a) In response to a request duly filed permanent exemption to the subject by an interested person, OFE may comunit shall be deemed compliance with mence a proceeding to modify or reapplicable prohibitions.
scind a rule or order. If OFE deter(Department of Energy Organization Act,
mines that a request to modify or rePub. L. 95-91, 91 Stat. 565 (42 U.S.C. 7101 et
scind a rule or order does not warrant seq.); Powerplant and Industrial Fuel Use commencement of a proceeding, it will Act of 1978, Pub. L. 95-620, 92 Stat. 3269 (42 deny the request and issue a brief U.S.C. 8301 et seq.); Omnibus Budget Rec statement of the reason(s) for the deonciliation Act of 1981, Pub. L. 97–35; E.O. nial. 12009, 42 FR 46267, Sept. 15, 1977)
(b) A request for modification or re[46 FR 59889, Dec. 7, 1981, as amended at 47 scission of a rule or order must comply FR 50849, Nov. 10, 1982; 54 FR 52893, Dec. 22, with the requirements of $501.7 and 1989)
must be filed at the address set forth in
$ 501.11. $501.69 Judicial review.
(c) Notice of the request for modificaAny person aggrieved by any order tion or rescission of an order must be issued by OFE under this subpart, must given by the requester to each party to file, within sixty (60) days of publica- the original proceeding that resulted in tion of the final order in the FEDERAL the issuance of the original order for REGISTER, a petition for judicial review which modification or rescission is in the United States Court of Appeals sought. If the number of parties to the for the Circuit wherein he resides, or original proceeding is too large to has his principal place of business. Ex- allow actual notice at a reasonable
cost or within a reasonable time, a re (g) A decision by OFE to commence a quester may ask that OFE give notice proceeding under this subpart does not to the parties by publication in the entitle the requester to a public hearFEDERAL REGISTER; however, this al ing on the request for modification or ternate notice does not bind OFE to rescission. A public hearing may be commence a proceeding, if it subse held, however, if, in its discretion, OFE quently determines that the request is considers that a public hearing will adnot warranted.
vance its evaluation of the request. (d) If OFE determines to grant a request to commence a proceeding to re $501.102 OFE evaluation of the record, scind or modify a rule or order, or OFE
decision and order for modification on its own initiative, commences a pro
or rescission of a rule or order. ceeding for the modification or rescis (a) OFE will consider the entire adsion of a rule or order, it will give no ministrative record in its evaluation of tice, either by service of a written no the decision and order for modification tice or by oral communication (which or rescission of a rule or order. OFE communication must be promptly con may investigate and corroborate any firmed in writing) to each person upon statement in the petition or related whom the order was served that OFE documents and may utilize in its evalproposes to modify or rescind, or, alter uation any relevant facts obtained by natively, by publication of notice in its investigations. OFE may solicit or the FEDERAL REGISTER. OFE will give a accept submissions from third persons reasonable period of time for each per relevant to any request under this subson notified to file a written response. part and all interested persons will be
(e)(1) A copy of any written com afforded an opportunity to respond to ments submitted to OFE under this these submissions. OFE may, in its dissubpart by a party to the original pro cretion and on its own initiative, conceeding must also be sent to the re vene a conference, if it considers that a quester. The party submitting such conference will advance its evaluation comments must certify to OFE that he of the request. has sent a copy of such comments to (b) Criteria. Except where modificathe requester.
tion or rescission of a rule or order is (2) OFE may notify other persons initiated by OFE, OFE's decision to reparticipating in the proceeding of the scind or modify a rule or order will be comments and provide an opportunity based on a determination that there for those notified to respond.
are significantly changed cir(1) A request for modification or re cumstances with respect to the appliscission of a rule or order must contain cability of a particular prohibition or a complete statement of all facts rel exemption to the requester. OFE beevant to the action sought. The request lieves that there may be "significantly must also include the names and ad changed circumstances”, if: dresses of all reasonably ascertainable (1) Significant material facts are subpersons who will be affected. Pertinent sequently discovered which were not provisions contained in any documents known and could not have been known believed to support a request may be to the petitioner or to OFE at the time briefly described, however, OFE re of the original proceeding; serves the right to obtain copies of any (2) A law, regulation, interpretation, significant documents that will assist ruling, order or decision on appeal that in making a determination on the mer was in effect at the time of the proits of a request. The request must iden- ceeding upon which the rule or order is tify the specific order or rule for which based and which, if it had been made modification or rescission is sought. A known to OFE, would have been relrequest should also indicate whether evant to the proceeding and would have an informal conference will facilitate substantially altered the outcome is OFE's determination to commence, or subsequently discovered; or not to commence a proceeding, or will (3) There has been a substantial assist OFE in making any determina change in the facts or circumstances tions on material issues raised by the upon which an outstanding and conrequest.
tinuing order was based, which change
occurred during the interval between (2) A claim for confidential treatissuance of the order and the date of ment of any information contained in filing of the request under this subpart, the petition for stay and supporting and was caused by force or cir documents must be in accordance with cumstances beyond the requester's con- $501.7(a)(11), and filed at the address trol.
provided in $ 501.11.
(b) OFE will publish notice of receipt 8501.103 OFE decision.
of a petition for a stay under this sub(a) OFE shall issue an appropriate part in the FEDERAL REGISTER. rule or order after considering the request for modification or rescission of
$501.122 Contents. a rule or order and other relevant in (a) A petition for a stay shall contain formation received during the pro a full and complete statement of all ceeding.
facts believed to be pertinent to the act (b) OFE will either grant or deny the or transaction for which a stay is request for modification or rescission sought. The facts shall include, but not and will briefly state the pertinent be limited to, the criteria listed below facts and legal basis for the decision. in &501.123(b).
(c) OFE will serve the rule or order (b) The petitioner may request a congranting or denying the request for ference regarding the application. If modification or rescission upon the re the request is not made at the time the quester, or, if the action was initiated
application is filed, it must be made as by OFE, upon the owner or operator of
soon thereafter as possible. The request the affected powerplant or installation. and OFE's determination regarding it OFE will publish a notice of the will be made in accordance with subissuance of a rule or order modifying or part C of this part. rescinding a rule or order in the FEDERAL REGISTER.
8501.123 Evaluation of the record.
(a) The record in a proceeding on a Subpart H-Requests for Stay
petition for stay shall consist of the pe
tition and any related documents, evi$501.120 Purpose and scope.
dence submitted at any public pro(a) This subpart sets forth the proce ceedings and any other information in dures for the request and issuance of a the possession of OFE and made part of stay of a rule or order or other require the record. OFE may investigate and ment issued or imposed by OFE or corroborate any statement in the petithese regulations but does not apply to tion or any other document submitted the mandatory stays provided for in to it and may utilize in its evaluation sections 202(b) and 301(a) of FUA. The any relevant facts obtained by its inapplication for a stay under this sub- vestigations. OFE may solicit or accept part will only be considered incidental submissions from third persons relto a proceeding on a request for modi evant to the petition for stay or other fication or rescission of a final prohibi- document and any interested person tion rule or order.
will be afforded an opportunity to re(b) The petitioner must comply with spond to these submissions. OFE, on its all final and effective OFE orders, reg- initiative, may convene a conference, ulations, rulings, and generally appli- if, in its discretion, it considers that cable requirements unless a petition the conference will advance its evaluafor a stay is granted or is applicable tion of the petition. under FUA.
(b) Criteria. (1) OFE may grant a stay
incident to a proceeding on a petition $501.121 Filing and notice of petitions for modification of a rule or order if for stays.
the petitioner shows: (a)(1) The petition for a stay must be (i) Irreparable injury will result if in writing and comply with the general the stay is denied; filing requirements stated in $ 501.7, in (ii) There is a strong likelihood of addition to any other requirements set success on the merits; forth in this subpart, and must be filed (iii) The denial of a stay will result in at the address provided in $ 501.11. a more immediate hardship or inequity
to the petitioner than to other persons facts must include the names and adaffected by the proceeding; and
dresses of all potentially affected per(iv) It would be desirable for reasons sons (if reasonably ascertainable) and a of public policy to grant the stay. full discussion of the pertinent provi
sions and relevant facts contained in $501.124 Decision and order.
any documents submitted with the re(a) OFE will issue an order granting quest. Copies of relevant contracts, or denying the petition for a stay upon agreements, leases, instruments, and consideration of the request and other other documents relating to the rerelevant information received or ob quest must be submitted if DOE betained during the proceeding.
lieves they are necessary for deter(b) OFE will include in the order a mination of any issue pending in the brief written statement setting forth
proceeding under this subpart. When the relevant facts and the basis of the
the request pertains to only one step in decision, including any appropriate a larger integrated transaction, the reterms and conditions of the stay.
questing party must also submit the
facts, circumstances, and other relSubpart I-Requests for
evant information pertaining to the enInterpretation
(b) The requesting party must in$501.130 Purpose and scope.
clude in the request a discussion of all This subpart establishes procedures relevant legal authorities, rulings, regfor filing a formal request for and the ulations, interpretations and decisions issuance of an interpretation of a rule, on appeal relied upon to support the order or other action by DOE. Any re- particular interpretation sought. sponse, whether oral or written, to a (C) DOE may refuse to issue an intergeneral inquiry, or to other than a for
pretation if it determines that there is mal written request for interpretation insufficient information upon which to filed with DOE, is not an interpreta
base an interpretation. tion and merely provides general information that may not be relied upon in $ 501.133 DOE evaluaton. any proceeding to determine compliance with the applicable requirements
(a)(1) The record shall consist of the of FUA.
request for an interpretation and any
supporting documents, all relevant evi$501.131 Filing a request for interpre dence presented at any public protation.
ceedings, written comments and any A proceeding to request an interpre- information in the possession of DOE tation is commenced by the filing of a
that has been made part of the record. "Request for Interpretation (FUA)." (2) DOE may investigate and corroboThe request must be in writing and rate any statement in a request or remust also comply with the general fil- lated documents and may utilize in its ing requirements stated in $501.7. Any evaluation any relevant facts obtained claims for confidential treatment for by the investigation. DOE may solicit any information contained in the re or accept submissions from third perquest or other related documents must sons relevant to the request for interbe made pursuant to $501.7(a)(11). A re- pretation, or any other document subquest for interpretation should be filed mitted under this subpart, and the perwith the Assistant General Counsel for son requesting the interpretation will Interpretations and Rulings at the ad be afforded an opportunity to respond dress provided in $ 501.11.
to these submissions.
(3) The General Counsel or his dele$ 501.132 Contents of a request for in gate will issue an interpretation on the terpretation.
basis of the information provided in (a) A request for an interpretation the request, unless that information is must contain a complete statement of supplemented by other information all the facts believed to be relevant to brought to the attention of DOE during the circumstances, acts or transactions the proceeding. DOE's interpretation that are the subject of the request. The will, therefore, depend on the accuracy
of the factual statements, and the re inconsistent with the amended regulaquesting party may rely upon it only tion or ruling. to the extent that the facts of the ac (f) Any person who believes he is ditual situation correspond to those upon rectly affected by an interpretation which the interpretation is based. issued by DOE, and who believes that
(b) Criteria. (1) DOE will base its FUA he will be aggrieved by its implementainterpretations on the DEOA and FUA, tion, may submit a petition for reconas applicable, and the regulations and
sideration of that interpretation to the published rulings of DOE as applied to
General Counsel. DOE will acknowlthe specific factual situation pre edge receipt of all requests for reconsented.
sideration; however, this acknowledge(2) DOE will take into consideration
ment in no way binds DOE to compreviously issued interpretations deal
mence any proceeding on the request. ing with the same or a related issue.
If within sixty (60) days of DOE's ac
knowledgement of the receipt of a re$501.134 Issuance and effect of inter quest for reconsideration, DOE has not pretations.
issued either a notice of intent to com
mence a proceeding to reconsider the (a) DOE may issue an interpretation
interpretation or a modification, reviafter consideration of the request for
sion or rescission of the original interinterpretation and other relevant in
pretation, the request for reconsiderformation received or obtained during ation will be deemed denied. DOE may, the proceeding.
in its discretion, issue a formal denial (b) The interpretation will contain a of a request for reconsideration if: written statement of the information (1) The request has not been filed in upon which it is based and a legal anal a timely manner, and good cause thereysis of and conclusions regarding the for has not been shown; application of rulings, regulations and (2) The person requesting reconsiderother precedent to the situation pre ation is not aggrieved or otherwise insented in the request.
jured substantially by the interpreta(c) Only those persons to whom an in tion; or terpretation is specifically addressed, (3) The request is defective because it and other persons upon whom the DOE fails to state and to present facts and serves the interpretation and who are legal argument that the interpretation directly involved in the same trans was erroneous in fact or in law, or that action or act, are entitled to rely upon it was arbitrary or capricious. it. No person entitled to rely upon an interpretation shall be subject to civil
Subpart 1-Rulings or criminal penalties stated in title VII of FUA for any act taken in reliance 8501.140 Purpose and scope. upon the interpretation, notwith DOE may issue rulings in accordance standing that the interpretation shall with the provisions of this subpart. thereafter be declared by judicial or DOE will publish each ruling in the other competent authority to be in FEDERAL REGISTER and in 10 CFR part valid.
518. A person is entitled to rely upon a (d) DOE may at any time rescind or
ruling to the extent provided in this modify an interpretation on its own subpart. initiative. Rescission or modification shall be made by notifying persons en
8501.141 Criteria for issuance. titled to rely on the interpretation (a) The General Counsel may issue a that it is rescinded or modified. This ruling whenever: notification will include a statement of (1) There has been a substantial numthe reasons for the rescission or modi ber of inquiries with regard to similar fication and, in the case of a modifica factual situations or a particular section, a restatement of the interpreta tion of the regulations; or tion as modified.
(2) It is determined that a ruling will (e) An interpretation is modified by a be of assistance to the public in applysubsequent amendment to the regula ing the regulations to a specific situations or ruling to the extent that it is tion.