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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 8501.7(a)(11), and filed at the address trol.
provided in 8501.11.
(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
8501.122 Contents. a rule or order and other relevant in (a) A petition for a stay shall contain formation received during the proceed a full and complete statement of all ing.
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 issu
will be made in accordance with subance of a rule or order modifying or re
order modifying or re- part C of this part. scinding 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, evi8501.120 Purpose and scope.
dence submitted at any public proceed(a) This subpart sets forth the proce ings and any other information in the dures for the request and issuance of a possession of OFE and made part of the stay of a rule or order or other require- record. OFE may investigate and corment issued or imposed by OFE or roborate any statement in the petition these regulations but does not apply to or any other document submitted to it the mandatory stays provided for in and may utilize in its evaluation any sections 202(b) and 301(a) of FUA. The relevant facts obtained by its invesapplication for a stay under this sub- tigations. 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 8501.7, 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 8501.11.
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 8501.124 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 1-Requests for
evant information pertaining to the enInterpretation
(b) The requesting party must in8501.130 Purpose and scope.
clude in the request a discussion of all This subpart establishes procedures relevant legal authorities, runing8, reg. for 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 flled with DOE, is not an interpreta
base an interpretation. tion and merely provides general infor
8501.133 DOE evaluaton. mation that may not be relied upon in any proceeding to determine compli (a)(1) The record shall consist of the ance with the applicable requirements request for an interpretation and any of FUA.
supporting documents, all relevant evi
dence presented at any public proceed8501.131 Filing a request for interpre ings, written comments and any infortation.
mation in the possession of DOE that A proceeding to request an interpre has been made part of the record. tation is commenced by the filing of a (2) DOE may investigate and corrobo“Request for Interpretation (FUA).” rate any statement in a request or reThe request must be in writing and lated documents and may utilize in its must also comply with the general fil- evaluation any relevant facts obtained ing requirements stated in 8501.7. Any by the investigation. DOE may solicit claims for confidential treatment for or accept submissions from third perany information contained in the re- sons relevant to the request for interquest or other related documents must pretation, or any other document subbe made pursuant to 8 501.7(a)(11). A re- mitted under this subpart, and the perquest for interpretation should be filed son requesting the interpretation will with the Assistant General Counsel for be afforded an opportunity to respond Interpretations and Rulings at the ad to these submissions. dress provided in $ 501.11.
(3) The General Counsel or his dele
gate will issue an interpretation on the 8 501.132 Contents of a request for in basis of the information provided in terpretation.
the request, unless that information is (a) A request for an interpretation supplemented by other information must contain a complete statement of brought to the attention of DOE during all the facts believed to be relevant to the proceeding. DOE's interpretation the circumstances, acts or transactions will, therefore, depend on the accuracy that are the subject of the request. The of the factual statements, and the re
questing party may rely upon it only to the extent that the facts of the actual situation correspond to those upon which the interpretation is based.
(b) Criteria. (1) DOE will base its FUA interpretations on the DEOA and FUA, as applicable, and the regulations and published rulings of DOE as applied to the specific factual situation presented.
(2) DOE will take into consideration previously issued interpretations deal. ing with the same or a related issue.
(1) Any person who believes he is directly affected by an interpretation issued by DOE, and who believes that he will be aggrieved by its implementation, may submit a petition for reconsideration of that interpretation to the General Counsel. DOE will acknowledge receipt of all requests for reconsideration; however, this acknowledgement in no way binds DOE to commence any proceeding on the request. If within sixty (60) days of DOE's acknowledgement of the receipt of a request for reconsideration, DOE has not issued either a notice of intent to commence a proceeding to reconsider the interpretation or a modification, revision or rescission of the original interpretation, the request for reconsideration will be deemed denied. DOE may, in its discretion, issue a formal denial of a request for reconsideration if:
(1) The request has not been filed in a timely manner, and good cause therefor has not been shown;
(2) The person requesting reconsideration is not aggrieved or otherwise injured substantially by the interpretation; or
(3) The request is defective because it fails to state and to present facts and legal argument that the interpretation was erroneous in fact or in law, or that it was arbitrary or capricious.
8501.134 Issuance and effect of inter
pretations. (a) DOE may issue an interpretation after consideration of the request for interpretation and other relevant information received or obtained during the proceeding.
(b) The interpretation will contain a written statement of the information upon which it is based and a legal analysis of and conclusions regarding the application of rulings, regulations and other precedent to the situation presented in the request.
(c) Only those persons to whom an interpretation is specifically addressed, and other persons upon whom the DOE serves the interpretation and who are directly involved in the same transaction or act, are entitled to rely upon it. No person entitled to rely upon an interpretation shall be subject to civil or criminal penalties stated in title VII of FUA for any act taken in reliance upon the interpretation, notwithstanding that the interpretation shall thereafter be declared by judicial or other competent authority to be invalid.
(d) DOE may at any time rescind or modify an interpretation on its own initiative. Rescission or modification shall be made by notifying persons entitled to rely on the interpretation that it is rescinded or modified. This notification will include a statement of the reasons for the rescission or modification and, in the case of a modification, a restatement of the interpretation as modified.
(e) An interpretation is modified by a subsequent amendment to the regula tions or ruling to the extent that it is inconsistent with the amended regulation or ruling.
8501.140 Purpose and scope.
DOE may issue rulings in accordance with the provisions of this subpart. DOE will publish each ruling in the FEDERAL REGISTER and in 10 CFR part 518. A person is entitled to rely upon a ruling to the extent provided in this subpart.
8501.141 Criteria for issuance.
(a) The General Counsel may issue a ruling whenever:
(1) There has been a substantial number of inquiries with regard to similar factual situations or a particular section of the regulations; or
(2) It is determined that a ruling will be of assistance to the public in applying the regulations to a specific situation.
$ 501.142 Modification or rescission.
(a) A ruling may be modified or rescinded by
(1) Publication of the modification or rescission by DOE in the FEDERAL REGISTER and in 10 CFR part 518; or
(2) Adoption of a rule that supersedes or modifies a prior ruling.
(b) A person shall not be subject to the sanctions or penalties stated in these regulations for actions taken in reliance upon a ruling, notwithstanding that the ruling is subsequently declared to be invalid or no longer applicable. A person affected by a ruling may not rely upon it for more than 30 days after it has been rendered invalid pursuant to issuance of a superseding rule by OFE, or after it has been rescinded or modified by DOE. 8501.143 Comments.
Any interested person may file a written comment on or objection to a published ruling at any time with the Assistant General Counsel for Interpretations and Rulings at the address provided in $ 501.11.
persons involved (if reasonably ascertainable), a description of the events that led to the complaint, and a statement describing the statutory provision, regulation, ruling, order, rule, or interpretation that allegedly has been violated. 8501.163 OFE evaluation.
(a) The record shall consist of the complaint and any supporting documents and all other relevant information developed in the course of any investigations or proceedings related to that complaint. OFE may investigate and corroborate any statement in the complaint or related documents submitted, and may utilize in its evaluation any relevant facts obtained by such investigation or from any other source of information. OFE may solicit or accept submissions from third persons relevant to the complaint or other related documents.
(b) Confidentiality of information. OFE will treat as confidential information received in any investigation of a complaint, including the identity of the complainant and the identity of any other persons who provide information to the extent such information is exempt from public disclosure under the Freedom of Information Act, 5 U.S.C. 552. OFE reserves the right to make disclosures that would be in the public interest.
Subpart K-Enforcement 8501.160 Purpose and scope.
This subpart provides the procedures by which OFE may initiate enforcement proceedings on its own behalf and by which complaints concerning a violation of the Act or any rule or order thereunder may be filed. 8501.161 Filing a complaint.
(a) A complaint under this subpart must be submitted in writing over the signature of the person making the complaint in accordance with the general filing requirements stated in $ 501.7. OFE will accept oral complaints that otherwise satisfy the requirements of this subpart, but OFE may request written verification.
(b) A complaint shall be filed at the address provided in 8501.11. $501.162 Contents of a complaint.
A complaint must contain a complete statement of all relevant facts pertaining to the act or transaction that is the subject of the complaint. It must also include the names and addresses of all
8501.164 Decision to initiate enforce
ment proceedings. After investigation of a specific complaint or based on any relevant information received or obtained during an investigation, OFE may issue a notice of violation, determine that no violation has occurred, or take such other actions as it deems appropriate. Prior to issuance of a notice of violation, and before commencement of an enforcement proceeding, OFE may transmit a draft of the notice of violation to the potentially affected person in order to promote an informal resolution of the violation.
8501.165 Commencement of enforce
ment proceedings. (a) Whenever, on the basis of any information available, OFE determines that a person is in violation or about
to be in violation of any provision of graph (a)(2) of this section apply, OFE these regulations, OFE may issue a no- will commence a proceeding to assess a tice of violation stating, in writing and penalty and, prior to a final determinawith reasonable specificity, the nature tion on the violation and assessment of of the violation. An enforcement pro a penalty, provide an opportunity for a ceeding commences with the issuance hearing pursuant to 5 U.S.C. 554 before of a notice of violation.
an Administrative Law Judge. (b) Contents of the notice of violation. (2) Election alternative in civil penalty OFE will set forth in the notice of vio- assessment proceedings. The recipient of lation the nature of the violation, the a notice of violation in which a civil relevant facts that OFE believes estab- penalty assessment has been proposed lish the violation and the legal basis may elect, in writing, within thirty (30) for the conclusions reached therein. days of receipt of the notice, to waive OFE may also include with the notice the administrative proceedings deof violation a copy of a proposed order. scribed in paragraph (a)(1) of this secThe notice of violation will also state tion. OFE will make a determination whether or not OFE proposes to assess on the proposed civil penalty assesscivil penalties.
ment and issue a final order to that ef(1) If OFE proposes to assess a civil fect within forty-five (45) days after repenalty, a notice of violation will be is ceiving notice of the exercise of this sued to the violator with an oppor- election. tunity for a hearing before an Adminis. (b) When a civil penalty is not protrative Law Judge, as set forth in posed-opportunity to request a con8501.166(a)(1) of this part, before any ference. If a person has received a nofinal determination on the violation tice of violation in which a civil penand penalty are made by OFE. The re- alty has not been proposed, he may, cipient of the notice will also be in- within thirty (30) days after receipt of formed of his right to elect to have the the notice, request a conference with procedures of $501.166(a)(2) apply, in OFE to discuss the notice. In order to lieu of the hearing, with respect to a request a conference he must comply final determination on the assessment with the instructions set forth in the of any civil penalty.
notice. (2) If OFE does not propose to assess a civil penalty, the violator will be pro 8501.167 Fuel use order. vided the opportunity for a conference, (a) General. OFE will issue a Fuel Use as set forth in $501.166(b), before a final Order if, after considering all the infordetermination on the violation is made mation received during the proceeding. by OFE. OFE may, in its discretion, OFE determines that a person has comalso provide the violator an oppor mitted, is committing, or is about to tunity for a hearing pursuant to commit a violation of FUA or of an 8501.166(a)(1).
order or rule thereunder. (c) Service. OFE will serve the notice (b) Contents. Any Fuel Use Order isof violation in accordance with provi sued under this section shall set forth sions set forth in 8501.6.
the relevant facts and legal basis for (d) Rescission. If, after issuance of a the order and where appropriate, the notice of violation and any related in- final penalty assessment and the basis vestigation, OFE finds no basis for the therefor. When an administrative hearbelief that a violation has occurred, is ing is requested under $501.166(a) of continuing to occur, or is about to this part, the Fuel Use Order will inoccur, OFE may rescind the notice of clude the recommended findings and violation by giving written notice to conclusions of the Administrative Law that effect to the recipient.
Judge (ALJ) and the basis for the pen
alty assessment. OFE will make a final 8501.166 Hearings and conferences.
determination as to any penalty as(a) When a civil penalty is proposed. (1) sessment or other appropriate remedy Hearing alternative in civil penalty as- based upon the recommended findings sessment proceedings. Unless the recipi- and conclusions of the ALJ and other ent of a notice of violation elects in information in the record of the enwriting to have the provisions of para- forcement proceeding. The order will