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they are to be submitted into the hear- for such copies shall be made in according record.
ance with a written schedule. (k) Hearing record. OFE will have a 146 FR 59889, Dec. 7, 1981, as amended at 54 verbatim transcript made of the public FR 52 hearing. The hearing record shall remain open for a period of fourteen (14) Subpart D-Subpoenas, Special days following the public hearing, un
Report Orders, Oaths and Witless extended by OFE, during which
nesses time the participants at the hearing may submit additional written state- 8501.40 Issuance. ments 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
tion of FITA 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 is special report orders (SRO); administer sues 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
(b) Petition to withdraw or modify. record after the close of the hearing.
Prior to the time specified for compliThe transcript, together with any writ
ance in the subpoena or SRO, the perten comments submitted in the course
son to whom the subpoena or SRO is of the proceeding, will be made part of
directed may apply for its withdrawal the record available for public inspec
or modification as provided in 10 CFR tion and copying at the OFE Public In
205.8, except that if the subpoena or formation Office, as provided in 8501.12.
SRO is issued by a duly appointed Pre
siding Officer, the request to withdraw 8501.35 Public file.
or modify must be addressed to that (a) Contents. The public file shall con- Presiding Officer, and its grant or desist of the rule, order, or petition, with nial will be decided by him. supporting data and supplemental information, and all data and informa Subpart E-Prohibition Rules and tion submitted by interested persons.
Orders Materials which are claimed by any party to be exempt from public disclo 8501.50 Policy. sure under the Freedom of Information
Except in conjunction with a prohibiAct (5 U.S.C. 552) shall be excised from tion order requested by the intended the public file provided OFE has made recipient, OFE shall not propose to a determination that the material is prohibit or prohibit by rule or order confidential in accordance with the use of petroleum or natural gas ei$ 501.7(a)(11) of this part.
ther as a primary energy source or in (b) Availability. The public file shall amounts in excess of the minimum be available for inspection at room amount necessary to maintain reliabil1E190, 1000 Independence Avenue SW., ity of operation consistent with reaWashington, DC. Photocopies may be sonable fuel efficiency in an existins made available, on request. The charge installation unless and until OFE
adopts rules establishing regulatory re- riod which follows publication of the quirements governing the issuance of Tentative Staff Analysis or prior to the such orders and rules in accordance close of the record of any public hearwith the applicable procedural and sub ing, whichever occurs later. A request stantive requirements of law.
by the proposed order recipient for an (Department of Energy Organization Act,
extension of the three-month period Pub. L. 95-91, 91 Stat. 565 (42 U.S.C. 7101 et
may be granted at OFE's discretion. seq.); Powerplant and Industrial Fuel Use
(4) Subsequent to the end of the comAct of 1978, Pub. L. 95-620, 92 Stat. 3269 (42 ment period, OFE will issue a notice of U.S.C. 8301 et seq.); Omnibus Budget Rec whether OFE intends to proceed with onciliation Act of 1981 (Pub. L. 97-35); E.O. the prohibition order proceeding. 12009, 42 FR 46267, Sept. 15, 1977)
(5) An owner or operator of a facility (47 FR 50848, Nov. 10, 1982)
that may be subject to an order may
demonstrate prior to issuance of a final 8501.51 Probibitions by order-elect
prohibition order that the facility ing powerplants.
would qualify for an exemption if the (a) OFE may prohibit by order the prohibition had been established by use of petroleum or natural gas as a rule. OFE will not delay the issuance of primary energy source or in amounts a final prohibition order or stay the efin excess of the minimum amount nec- fective date of such an order for the essary to maintain reliability of oper purpose of determining whether a proation consistent with reasonable fuel posed order recipient qualifies for a efficiency in an electing powerplant, if: particular exemption unless the dem
(1) That facility has not been identi onstration or qualification is submitfied as a member of a category subject ted prior to or during the second threeto a final rule at the time of the issu month comment period, commencing ance of such order; and
after issuance of a notice of intention (2) The requirements of $504.6 have to proceed, or unless materials submitbeen met.
ted after the period (1) could not have (b) Notice of order and public participa been submitted during the period tion. (1) OFE may hold a conference through the exercise of due diligence, with the proposed order recipient prior (ii) address material changes in fact or to issuing the proposed order.
law occurring after the close of the pe(2) Pursuant to section 701 of FUA, riod, or (iii) consist of amplification or prior to the issuance of a final order to rebuttal occasioned by the subsequent an electing powerplant, OFE shall pub course of the proceeding. A request by lish a proposed order in the FEDERAL the proposed order recipient for an exREGISTER together with a statement of tension of this time period may be the reasons for the order. In the case of granted at OFE's discretion. a proposed order that would prohibit (6) Subsequent to the end of the secthe use of petroleum or natural gas as ond three (3) month period, OFE will, if a primary energy source, the finding it intends to issue a final prohibition required by former section 301(b)(1) of order, prepare and issue a Notice of the Act shall be published with such Availability of a Tentative Staff Analproposed order.
ysis. Interested persons wishing a hear(3) OFE shall provide a period for the ing must request a hearing within submission of written comments of at forty-five (45) day after issuance of the least three months after the date of the Notice of Availability of the Tentative proposed order. During this period, the Staff Analysis. During this forty-five recipient of the proposed order and any (45) days period, interested persons other interested person must submit may also submit written comments on any evidence that they have deter- the Tentative Staff Analysis. mined at that time to support their re- (7) If a hearing has been requested, spective positions as to each of the OFE shall provide interested persons findings that OFE is required to make with an opportunity to present oral under section 301(b) of the Act. A pro- data, views and arguments at a public posed order recipient may submit addi- hearing held in accordance with subtional new evidence at any time prior part of this part. The hearing will to the close of the public comment pe- consider the findings which OFE must make in order to issue a final prohibi- son to take steps with regard to a unit tion order and any exemption for which 60 days after service of the final order. the proposed order recipient submitted (4) A copy of the final order and a its demonstration in accordance with summary of the basis therefore will be paragraph (b)(5) of this section.
published in the FEDERAL REGISTER. (8) Upon request by the recipient of The order will become effective 60 days the proposed prohibition order, the
after publication in the FEDERAL REGcombined public comment periods pro
ISTER. vided for in this section may be re
(d) Request for order. (1) A proceeding duced to a minimum of forty-five (45)
for issuance of a prohibition order to a days from the time of publication of
specific unit may be commenced by the proposed order.
OFE, in its sole discretion, in response (9) OFE may terminate a prohibition
to a request for an order filed by the order proceeding at any time prior to
owner or operator of a facility.
(2) A petition requesting OFE to comthe date upon which a final order shall become effective. Should OFE termi
mence a prohibition order proceeding
should include the following informanate the proceeding, it will notify the
tion for all units to be covered by the proposed order recipient, and publish a
prohibition order: notice in the FEDERAL REGISTER.
(1) A statement of the reasons the (c) Decision to issue a final order. (1)
owner or operator is seeking the issuOFE will base its determination to
ance of a prohibition order; and issue an order on consideration of the
(ii) Sufficient information for OFE to whole record or those parts thereof
make the findings required by section cited by a party and supported by and 301(b) of FUA. in accordance with reliable, probative (3) If OFE determines to accept the and substantial evidence.
request, OFE shall publish a proposed (2) OFE shall include in the final order in the FEDERAL REGISTER toorder a written statement of the perti gether with a statement of the reasons nent facts, a statement of the basis for the order. upon which the final order is issued, a
(Department of Energy Organization Act, recitation of the conclusions regarding
Pub. L. 95-91, 91 Stat. 565 (42 U.S.C. 7101 et the required findings and qualifications
seq.); Energy Supply and Environmental Cofor exemptions. The final order shall ordination Act of 1974; Pub. L. 93-319, as state the effective date of the prohibi amended by Pub. L. 94-163, Pub. L. 95–70, (15 tion contained therein. If it is dem
U.S.C. 719 et seq.); Powerplant and Industrial onstrated that the facility would have
Fuel Use Act of 1978, Pub, L. 95-620, 92 Stat.
3269 (42 U.S.C. 8301 et seq.); Omnibus Budget been granted a temporary exemption,
Reconciliation Act of 1981, (Pub. L. 97-35); the effective date of the prohibition
E.O. 12009, 42 FR 46267, Sept. 15, 1977) contained in the final order shall be delayed until such time as the temporary
(46 FR 59889, Dec. 7, 1981, as amended at 47
FR 17042, Apr. 21, 1982; 47 FR 50848, Nov. 10, exemption would have terminated. If it
1982; 54 FR 52892, Dec. 22, 1989) is demonstrated that a facility will need a period of time to comply with 8501.52 Prohibitions by order certify. the final order, the effective date of the ing powerplants. prohibition contained in the final order
(a) OFE may prohibit by order the may be delayed, in OFE's discretion, so use of petroleum or natural gas as a as to allow an order recipient to com primary energy source or in amounts ply with the final order.
in excess of the minimum amount nec(3) OFE will enclose with a copy of essary to maintain reliability of operthe final order, where appropriate, a ation consistent with maintaining reaschedule of steps that should be taken sonable fuel efficiency in an existing by a stated date (a compliance sched powerplant if the owner or operator of ule) to onsure that the affected facility the powerplant certifies, and OFE conwill be able to comply with the prohibi curs in such certification in accordance tions stated in the order by the effec with the requirements of $$ 504.5, 504.6 tive date of the prohibition contained and 504.8. in the final order. The compliance (b) Notice of order and participation. (1) schedule may require the affected per- OFE may hold a conference with the proposed order recipient, at the recipi have available relating to the proposed ent's election, prior to issuing the pro- order, the certification or the concurposed order. The conference may re- rence that OFE must make. A proposed solve any questions regarding the cer- order recipient may submit additional tification required by section 301 of the new evidence at any time prior to the Act, as amended, and $$ 504.5, 504.6, and close of the public comment period 504.8, and OFE's review and concur which follows the commencement of rence therein.
the proceeding or prior to the close of (2) Pursuant to section 701(b) of FUA, the record of any public hearing, prior to the issuance of a final order to whichever occurs later. A request for a certifying powerplant owner or oper an extension of the 45 day period may ator, OFE must publish in the FEDERAL be granted at OFE's discretion. In the REGISTER, a proposed prohibition order case of a Notice of Acceptance, as set stating the reasons for such order. OFE forth in 8504.9, no final prohibition will review all of the information sub order can be issued until any necessary mitted by a proposed order recipient environmental review pursuant to the within 60 days after receipt by OFE. If National Environmental Policy Act of the certification is complete, OFE will, 1969, 42 U.S.C 4321 et seq. (NEPA) has within 30 days after the end of the 60 been completed. Upon completion of day review period, publish in the FED- the NEPA review and unless OFE deERAL REGISTER a Notice of Acceptance termines on the basis of the record of of certification together with a pro the proceeding that the certification posed prohibition order stating therein fails to meet the requirements of the reasons for such order. This com- $$ 504.5, 504.6, and 504.8, OFE shall pubmences the prohibition order proceed- lish a final prohibition order, together ing. If OFE does not believe it is able with the information required by parato concur in the certification, OFE graph (c) of this section. In the case of shall notify the proposed order recipi- a Notice of Proposed Non-Concurrence, ent and shall publish a Notice of Pro- at the end of the 45 day comment peposed Non-Concurrence in the FEDERAL riod, OFE will notify the proposed REGISTER within 30 days after the end order recipient and parties to the proof the 60 day review period. If OFE ceeding and publish a final Notice of finds that the certification with com Non-Concurrence in the FEDERAL REGpliance schedule is incomplete, OFE ISTER, if OFE determines it cannot conwill notify the proposed prohibition cur in the certification based upon adorder recipient as to the deficiencies, ditional information submitted during and provide an additional period of 30 the proceeding. If, at the end of the 45 days for the certification to be amend- day period, OFE believes it can concur ed and resubmitted. If a complete cer- in the certification, OFE will notify tification is not submitted within this the proposed order recipient and parperiod, the proceeding shall be termi- ties to the proceeding and publish a nated in accordance with $501.52(b)(5). Notice of Acceptance followed by a new OFE will notify the proposed order re- 45 day comment period. cipient and other parties to the pro (4) If a hearing has been requested, ceeding of the termination and publish OFE shall provide interested persons a notice in the FEDERAL REGISTER. with an opportunity to present oral OFE, on its own motion, may extend data, views and arguments at a public any period of time by publishing a no- hearing held in accordance with subtice to that effect in the FEDERAL REG part C of this part. The hearing may ISTER,
consider, among other matters, the suf(3) The publication of the Notice officiency of the certification of the Acceptance or Notice of Proposed Non- owner or operator of the powerplant reConcurrence commences a period of 45 quired by section 301 of FUA, as days during which interested persons amended, and $8504.5, 504.6, and 504.8 of may submit written comments or re- these regulations. quest a public hearing. During this pe- (5) OFE may terminate a prohibition riod, the recipient of the proposed order proceeding at any time prior to order and any other interested person the date upon which a final prohibition may submit any evidence that they order is issued whenever OFE believes, from any information contained in the prior to the effective date of the prohirecord of the proceeding, that the cer- bitions contained in the final prohibitification does not meet the require- tion order. ments of section 301 of the Act, as (e) Rescission of prohibition orders. The amended, or $8504.5, 504.6, and 504.8 of rescission or modification of final prothese regulations. If OFE terminates hibition orders issued to existing electhe proceeding or publishes a final No tric powerplants will be governed by tice of Non-Concurrence, or the pro the procedure in $501.101 of these reguposed order recipient fails to submit a lations. complete certification, OFE will notify
(Approved by the Office of Management and the proposed order recipient and other
Budget under control number 1903-0077) parties to the proceeding and publish a notice in the FEDERAL REGISTER. In
(Department of Energy Organization Act,
Pub. L. 95-91, 42 U.S.C. 7101 et seq.; Energy such event, the proposed order recipi
Supply and Environmental Coordination Act ent may submit a new certification
of 1974, Pub. L. 93-319, as amended by Pub. L. under any provision of section 301 of
94–163, Pub. L. 95–70, and Pub. L. 95-620, 15 the Act, as amended, at a later date. U.S.C. 719 et seq.; Powerplant and Industrial Specifically, a Notice of Non-Concur Fuel Use Act of 1978, Pub. L. 95-620, as rence under either section 301(b) or amended by Pub. L. 97-35, 42 U.S.C. 8301 et 301(c) shall not affect a proposed order seq.; Omnibus Budget Reconciliation Act of recipient's ability to make a certifi
1981, (Pub. L. 97-35)) cation under the other subsection.
(47 FR 17042, Apr. 21, 1982) (c) Record and decision to issue a final
88501.53–501.56 (Reserved) order. (1) OFE will base its determination to issue an order on consideration of the whole record or those parts
Subpart F-Exemptions and thereof cited by a party and supported
Certifications by and in accordance with reliable, probative and substantial evidence.
8501.60 Purpose and scope. (2) OFE shall include in the final (a) (1) If the owner or operator plans order a written statement of the basis to construct a new baseload powerplant upon which the final order is issued, and the unit will not be in compliance and its concurrence in the required cer- with the prohibition contained in sectification. A copy of the final order and tion 201(a) of FUA, this subpart estaba summary of the basis therefor will be lishes the procedures for filing a petipublished in the FEDERAL REGISTER. tion requesting a temporary or permaWhile the prohibition order is final fornent exemption under, respectively, purposes of judicial review under sec- sections 211 and 212 of FUA. tion 702 of FUA, the prohibitions con- (2) Self-certification alternative. If tained in the final order shall not be- the owner or operator plans to concome effective for purposes of amend struct a new baseload powerplant not ment under section 301(d) of FUA, as in compliance with the prohibitions amended, and 8501.52(d) of these regula contained in section 201(a) of FUA, this tions until the effective date of the subpart establishes the procedures for prohibitions stated in the order, or, the filing of a self-certification under where the order is subject to one or section 201(d) of FUA. more conditions subsequent listed in (3) If the petitioner owns, operates or the prohibition order compliance controls a new powerplant, this subschedule, until all its conditions are part provides the procedures for filing met.
a petition requesting extension of a (d) Amendment to certifications under temporary exemption granted under 88 504.5 and 504.6. The proposed prohibi sections 211 or 311 of FUA. tion order recipient may amend its (4) If the petitioner owns, operates or compliance schedule under $ 504.5(d), or controls a new or existing powerplant its certification under section 301 of or MFBI, this subpart provides the proFUA, as amended, and $8504.5, 504.6 and cedures for filing a petition requesting 504.8 of these regulations in order to extension of a temporary exemption take into account changes in relevant granted under section 211 or section 311 facts and circumstances at any time of FUA.