« PreviousContinue »
transmitted by registered or certified mail and addressed to the appropriate office is considered to be filed upon mailing.
(3) Timeliness. Documents are to be filed with the appropriate DOE or OFE office listed in $501.11. Documents that are to be considered filed upon receipt under paragraph (a)(1) of this section and that are received after regular business hours are deemed filed on the next regular business day. Regular business hours are 8 a.m. to 4:30 p.m.
(4) Computation of time. In computing any period of time prescribed or allowed by FUA, these regulations or by an order, the day of the act, event, or default from which the designated pe riod of time begins to run is not to be included. The last day of the period so computed is to be included unless it is a Saturday, Sunday, or Federal legal holiday in which event the period runs until the end of the next day that is neither a Saturday, Sunday, nor a Federal legal holiday.
(5) Additional time after service by mail. Whenever a person is required to perform an act, to cease and desist therefrom, or to initiate a proceeding under this part within a prescribed period of time and the order, notice, interpretation or other document is served by mail, three (3) days shall be added to the prescribed period.
(6) Extension of time. When a document is required to be filled within a prescribed time, an extension of time to file may be granted upon good cause shown.
(7) Signing. All applications, petitions, requests, comments, and other documents that are required to be signed, shall be signed by the person filing the document or a duly authorized representative. Any application, petition, request, complaint, or other document filed by a duly authorized representative shall contain a state ment by such person certifying that he is a duly authorized representative, unless an OFE form otherwise requires. (A false certification is unlawful under the provisions of 18 U.S.C. 1001 (1970).)
(8) Labeling. An application, petition or other request for action by DOE or OFE should be clearly labeled accord ing to the nature of the action involved, e.g., “Petition for Temporary
Exemption;" “Petition for Extension (or Renewal) of Temporary Exemp tion," both on the document and on the outside of the envelope in which the document is transmitted.
(9) Obligation to supply information. A person who files an application, petition, complaint, or other request for action is under a continuing obligation during the proceeding to provide DOE or OFE with any new or newly discovered information that is relevant to that proceeding. Such information includes, but is not limited to, information regarding any other application, petition, complaint, or request for action that is subsequently filed by that person with any DOE office or OFE office.
(10) The same or related matters. In filing a petition or other document requesting OFE action, the person must state whether, to the best of his knowledge, the same or a related issue, act or transaction has been or presently is being considered or investigated by a DOE office, other Federal agency, department or instrumentality, or a State or municipal agency.
(11) Request for confidential treatment. (i) If any person filing a document with DOE or OFE claims that some or all of the information contained in the document is exempt from the mandatory public disclosure requirements of the Freedom of Information Act (5 U.S.C. 562); is information referred to in 18 U.S.C. 1905; or is otherwise exempt by law from public disclosure, and if such person requests DOE or OFE not to disclose such information, such person shall make a filing in accordance with paragraph (b)(2) of this section. The person shall indicate in the original document that it is confidential or contains confidential information and may file a statement specifying the justification for non-disclosure of the information for which confidential treatment is claimed. If the person states that the information comes within the exception in 5 U.S.C. 552(b)(4) for trade secrets and commercial or financial information, such person shall include a statement specifying why such information is privileged or confidential. If a document is not so filed, OFE may assume that there is no objection to public disclosure of the document in its
entirety, unless the person subse- (b) If the appropriate State reguquently files a claim of confidentiality latory authority has not approved a prior to public disclosure of the docu powerplant for which a petition has ment.
been filed, such exemption, to the ex(ii) DOE or OFE retains the right to tent it applies to the prohibition under make its own determination with re section 201 of FUA against construcgard to any claim of confidentiality. tion without the capability of using Notice of the decision by DOE or OFE coal or another alternate fuel, shall to deny such claim, in whole or in part, not take effect until all approvals reand an opportunity to respond or take quired by such State regulatory auother appropriate action to avoid re thority which relate to construction lease shall be given to a person claim have been obtained. ing confidentiality of information no (54 FR 52891, Dec. 22, 1989) less than seven (7) days prior to its public disclosure.
8501.10 Order of precedence. (iii) The above provisions in para- If there is any conflict or inconsistgraphs (a)(11) (i) and (ii) of this section ency between the provisions of this do not apply to information submitted
part and any other provisions or parts on OFE forms that contain their own
of this chapter, except for general proinstructions concerning the treatment cedures which are unique to part 515 of of confidential information.
this chapter, the provisions of this part (12) Separate applications, petitions or will control respect to procedure. Tequests. Each application, petition, or request for DOE or OFE action shall be
(54 FR 52891, Dec. 22, 1989) submitted as a separate document,
8501.11 Address for filing documents. even if the applications, petitions, or
Send all petitions, self-certifications requests deal with the same or a relat
and written communications to the foled issue, act, or transaction, or are
lowing address: Office of Fossil Energy, submitted in connection with the same
Office of Fuels Programs, Coal and proceeding.
Electricity Division, Mail Code FE-52, (b) Number of documents to be filed. (1)
1000 Independence Avenue, SW., WashA petitioner must file an executed
ington, DC 20585. original and fourteen (14) copies of all exemption requests submitted to DOE. (54 FR 52891, Dec. 22, 1989] For certification requests, an original and three (3) copies shall be submitted.
8501.12 Public files.
9001 (2) Where the petitioner requests con- DOE will make available at the Freefidential treatment of some or all of dom of Information reading room, the information submitted, an original room 1E190, 1000 Independence Avenue and eleven (11) copies of the confiden- SW., Washington, DC for public inspectial document and three (3) copies of tion and copying any information rethe document with confidential mate quired by statute and any information rial deleted must be filed.
that OFE determines should be made
available to the public. [46 FR 59889, Dec. 7, 1981, as amended at 47 FR 15314, Apr. 9, 1982; 54 FR 52891, Dec. 22, (54 FR 52891, Dec. 22, 1989]
$ 501.13 Appeal. $ 501.8 (Reserved)
There is no administrative appeal of
any final administrative action to 8501.9 Effective date of orders or
which this part applies. rules. (a) When OFE issues a rule or order $501.14 Notice to Environmental Proimposing a prohibition or granting an
tection Agency. exemption (or permit) under FUA, the A copy of any proposed rule or order rule or order will be effective sixty (60) that imposes a prohibition, order that days after publication in the FEDERAL imposes a prohibition, or a petition for REGISTER, unless it is stayed, modified, an exemption or permit, shall be transsuspended or rescinded.
mitted for comments, if any, to the Ad
ministrator and the appropriate Re- tice of Availability of the Tentative gional Administrator of the Environ Staff Analysis in the FEDERAL REGmental Protection Agency (EPA). The ISTER. In the case of prohibition order Administrator of EPA shall be given proceedings for certifying powerplants the same opportunity to comment and under section 301 of FUA, as amended, question as is given other interested OFE shall provide a period of at least persons.
45 days, beginning the day after the
Notice of Acceptance of certification is (54 FR 52891, Dec. 22, 1989)
published, for submission of written
comments concerning the certification Subpart B-(Reserved)
and OFE's proposed prohibition order,
and requests for public hearings. ProhiSubpart C-Written Comments, bition order proceedings under secti
Public Hearings and Con 301, as amended by OBRA, will have ferences During Administra only one period of 45 days, since no tive Proceedings
Tentative Staff Analysis will be pre
pared. The comment period may be ex8501.30 Purpose and scope.
tended by OFE in accordance with This subpart establishes the proce
$ 501.7. See $ 501.52(b) of this part for dures for requests for and the conduct
further information with respect to the of public hearings; for submission of
comment period. Written comments written comments; and for requests for
shall be filed in accordance with 8501.7. and conduct of conferences pursuant to (Department of Energy Organization Act, an administrative proceeding before Pub. L. 95-91, 91 Stat. 565 (42 U.S.C. 7101 et OFE. Hearings shall be convened at the seq.); Powerplant and Industrial Fuel Use request of any interested person, in ac Act of 1978, Pub. L. 95-620, 92 Stat. 3289 (42 cordance with section 701(d) of FUA,
U.S.C. 8301 et seq.); Omnibus Budget Rec
onciliation Act of 1981 (Pub. L. 97-35); E.O. and shall be held at a time and place to
12009, 42 FR 46267, Sept. 15, 1977) be decided by the Presiding Officer.
[46 FR 59889, Dec. 7, 1981, as amended at 47 8501.31 Written comments.
FR 50848, Nov. 10, 1982; 54 FR 52892, Dec. 22,
1989) (a) New facilities. Except as may be provided elsewhere in these regula 8501.32 Conferences (other than tions, OFE shall provide a period of at prepetition conferences). least forty-five (45) days, commencing (a) At any time following commencewith publication of the Notice of Ac
ment of a proceeding before OFE, an ceptance of Petition, of in the case of
interested person may request a concertification exemptions, Notice of AC ference with the staff of OFE to discuss ceptance and availability of Certifi à petition, permit or any other issue cation, in the FEDERAL REGISTER in ac
pending before OFE. The request for a cordance with $ 501.63(a), for submission conference should generally be in writof written comments concerning a peti ing and should indicate the subjects to tion for an exemption. Written com be covered and should describe the rements shall be made in accordance quester's interest in the proceeding. with 8 501.7.
Conferences held after the commence(b) Eristing facilities. Except as may ment of an administrative proceeding be provided elsewhere in these regula before OFE shall be convened at the tions, OFE shall provide a period of at discretion of OFE or the Presiding Offileast 45 days for submission of written cer. comments concerning a proposed pro (b) When OFE convenes a conference hibition rule or order or a petition for in accordance with this section, any a permit. In the case of a proposed pro person invited may present views as to hibition rule or order issued to an ex- the issue or issues involved. Documenisting electing powerplant, OFE shall tary evidence may be submitted at the also provide for a period of at least 45 conference and such evidence, to the days for submission of written com- extent that it is not deemed to be conments concerning a Tentative Staff fidential, will be included in the adAnalysis. This period shall commence ministrative record. OFE will not noron the day after publication of the No- mally have a transcript of the con
ference prepared but may do so at its ceeding and a statement of the issues discretion.
involved. The request should, to the ex(c) Because a conference is solely for tent possible, identify any witnesses the exchange of views incident to a that are to be called, summarize the proceeding, there will be no formal re anticipated testimony to be given at port or findings by OFE unless OFE in the hearing, and outline questions that its discretion determines that the prep are to be posed. aration of a report or findings would be advisable. OFE will, however, place in
(Department of Energy Organization Act,
Pub. L. 95-91, 91 Stat. 565 (42 U.S.C. 7101 et the public file a record of any con
seq.); Powerplant and Industrial Fuel Use ference.
Act of 1978, Pub. L. 95 620, 92 Stat. 3269 (42
U.S.C. 8301 et seq.); Omnibus Budget Rec$ 501.33 Request for a public hearing.
onciliation Act of 1981 (Pub. L. 97-35); E.O. (a) New facilities. In the case of a peti 12009, 42 FR 46267, Sept. 15, 1977) tion for an exemption under title II of (46 FR 59889, Dec. 7, 1981, as amended at 47 FUA, any interested person may sub FR 50848, Nov. 10, 1982; 54 FR 52892, Dec. 22, mit a written request that OFE con
1989) vene a public hearing in accordance
8501.34 Public hearing. with section 701 of FUA no later than forty-five (45) days after publication of (a) A public hearing under this subeither the Notice of Acceptance of a pe section is for the purpose of insuring tition, or in the case of a certification
that all issues are fully and properly exemption, the publication of the No developed, but is not a formal adjudicatice of Acceptance of Certification. tory hearing subject to the provisions This time period may be extended at
of 5 U.S.C. 554 and 556. the discretion of OFE.
(b) Opportunity to be heard at a public (b) Eristing powerplants. In the case of hearing. (1) Any interested person, may a petition for an exemption from a pro- request, and OFE will provide, an ophibition imposed by a final rule or portunity to present oral or written order issued by OFE to an electing data, views and arguments at a public powerplant under former sections of hearing on any proposed prohibition title III of FUA or a petition for a per rule or order, or on any petition for an mit under 8504.1, any interested person exemption or permit. An interested may submit a written request that person may file a request to be listed OFE convene a public hearing in ac as a party to a hearing on the service cordance with section 701 of FUA with list prepared by the Presiding Officer in 45 days after the notice of the filing pursuant to 8501.34(d) of this part. of a petition is published in the FED (2) Participants at the public hearing ERAL REGISTER. In the case of a pro will have an opportunity to present posed prohibition rule or order issued oral or written data, views and arguto an electing powerplant under former ments. section 301, the 45 day period in which (3) A request for a public hearing to request a public hearing shall com may be withdrawn by the requestor at mence upon the publication of the No- any time. If other persons have retice of Availability of the Tentative quested to participate as parties in the Staff Analysis. In the case of a pro- public hearing, OFE may cancel the posed prohibition order to be issued to hearing only if all parties agree to cancertifying powerplants under section cellation. OFE will give notice, when301 of FUA, as amended, the 45 day pe- ever possible, in the FEDERAL REGISTER riod in which to request a public hear of the cancellation of any hearings for ing commences upon publication of the which there has been prior notice. Notice of Acceptance of Certification. (c) Presiding Officer. OFE will appoint This time limit may be extended at the a Presiding Officer to conduct the pubdiscretion of OFE in accordance with lic hearing. $501.7.
(d) Powers of the Presiding Officer. The (c) Contents of request. A request for a Presiding Officer is responsible for orpublic hearing must be in writing and derly conduct of the hearing and for must include a description of the re- certification of the record of the public questing party's interest in the pro- 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 exemp tion 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 Ore hearing II OFE for example, that a person:
(1) Has knowingly made false or misleading statements, either orally or in writingi
(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 of a size consistent with ease of handling, transportation and filing, and a reasonable 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 furnished to the Presiding Officer and one copy to each party listed on the service list. Large exhibits that are used during the hearing must be provided on no larger than 1142"x14" legal size paper if