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transmitted by registered or certified Exemption;" "Petition for Extension mail and addressed to the appropriate (or Renewal) of Temporary Exempoffice is considered to be filed upon tion," both on the document and on the mailing.
outside of the envelope in which the (3) Timeliness. Documents are to be document is transmitted. filed with the appropriate DOE or OFE (9) Obligation to supply information. A office listed in $501.11. Documents that person who files an application, petiare to be considered filed upon receipt tion, complaint, or other request for under paragraph (a)(1) of this section action is under a continuing obligation and that are received after regular during the proceeding to provide DOE business hours are deemed filed on the or OFE with any new or newly discovnext regular business day. Regular ered information that is relevant to business hours are 8 a.m. to 4:30 p.m. that proceeding. Such information in
(4) Computation of time. In computing cludes, but is not limited to, informaany period of time prescribed or al- tion regarding any other application, lowed by FUA, these regulations or by petition, complaint, or request for acan order, the day of the act, event, or tion that is subsequently filed by that default from which the designated pe- person with any DOE office or OFE ofriod of time begins to run is not to be filce. included. The last day of the period so (10) The same or related matters. In filcomputed is to be included unless it is ing a petition or other document rea Saturday, Sunday, or Federal legal questing OFE action, the person must holiday in which event the period runs state whether, to the best of his knowluntil the end of the next day that is edge, the same or a related issue, act or neither a Saturday, Sunday, nor a Fed- transaction has been or presently is eral legal holiday.
being considered or investigated by a (5) Additional time after service by mail. DOE office, other Federal agency, deWhenever a person is required to per- partment or instrumentality, or form an act, to cease and desist there- State or municipal agency. from, or to initiate a proceeding under (11) Request for confidential treatment. this part within a prescribed period of (i) If any person filing a document with time and the order, notice, interpreta- DOE or OFE claims that some or all of tion or other document is served by the information contained in the documail, three (3) days shall be added to ment is exempt from the mandatory the prescribed period.
public disclosure requirements of the (6) Extension of time. When a docu- Freedom of Information Act (5 U.S.C. ment is required to be filed within a 562); is information referred to in 18 prescribed time, an extension of time U.S.C. 1905; or is otherwise exempt by to file may be granted upon good cause law from public disclosure, and if such shown.
person requests DOE or OFE not to dis(7) Signing. All applications, peti- close such information, such person tions, requests, comments, and other shall make a filing in accordance with documents that are required to be paragraph (b)(2) of this section. The signed, shall be signed by the person person shall indicate in the original filing the document or a duly author- document that it is confidential or conized representative. Any application, tains confidential information and may petition, request, complaint, or other file a statement specifying the jusdocument filed by a duly authorized tification for non-disclosure of the inrepresentative shall contain a state- formation for which confidential treatment by such person certifying that he ment is claimed. If the person states is a duly authorized representative, un- that the information comes within the less an OFE form otherwise requires. exception in 5 U.S.C. 552(b)(4) for trade (A false certification is unlawful under secrets and commercial or financial inthe provisions of 18 U.S.C. 1001 (1970).) formation, such person shall include a
(8) Labeling. An application, petition, statement specifying why such inforor other request for action by DOE or mation is privileged or confidential. If OFE should be clearly labeled accord- a document is not so filed, OFE may ing to the nature of the action in- assume that there is no objection to volved, e.g., "Petition for Temporary public disclosure of the document in its
entirety, unless the person subsequently files a claim of confidentiality prior to public disclosure of the document.
(ii) DOE or OFE retains the right to make its own determination with regard to any claim of confidentiality. Notice of the decision by DOE or OFE to deny such claim, in whole or in part, and an opportunity to respond or take other appropriate action to avoid release shall be given to a person claiming confidentiality of information no less than seven (7) days prior to its public disclosure.
(iii) The above provisions in paragraphs (a)(11) (i) and (ii) of this section do not apply to information submitted on OFE forms that contain their own instructions concerning the treatment of confidential information.
(12) Separate applications, petitions or requests. Each application, petition, or request for DOE or OFE action shall be submitted as a separate document, even if the applications, petitions, or requests deal with the same or a related issue, act, or transaction, or are submitted in connection with the same proceeding.
(b) Number of documents to be filed. (1) A petitioner must file an executed original and fourteen (14) copies of all exemption requests submitted to DOE. For certification requests, an original and three (3) copies shall be submitted.
(2) Where the petitioner requests confidential treatment of some or all of the information submitted, an original and eleven (11) copies of the confidential document and three (3) copies of the document with confidential material deleted must be filed.
(b) If the appropriate State regulatory authority has not approved a powerplant for which a petition has been filed, such exemption, to the extent it applies to the prohibition under section 201 of FUA against construction without the capability of using coal or another alternate fuel, shall not take effect until all approvals required by such State regulatory authority which relate to construction have been obtained. (54 FR 52891, Dec. 22, 1989) 8501.10 Order of precedence.
If there is any conflict or inconsistency between the provisions of this part and any other provisions or parts of this chapter, except for general procedures which are unique to part 515 of this chapter, the provisions of this part will control respect to procedure. (54 FR 52891, Dec. 22, 1989)
$ 501.11 Address for filing documents.
Send all petitions, self-certifications and written communications to the following address: Office of Fossil Energy, Office of Fuels Programs, Coal and Electricity Division, Mail Code FE-52, 1000 Independence Avenue, sw., Washington, DC 20585. (54 FR 52891, Dec. 22, 1989)
8501.12 Public files.
DOE will make available at the Freedom of Information reading room, room 1E190, 1000 Independence Avenue SW., Washington, DC for public inspection and copying any information required by statute and any information that OFE determines should be made available to the public. (54 FR 52891, Dec. 22, 1989)
(46 FR 59889, Dec. 7, 1981, as amended at 47 FR 15314, Apr. 9, 1982; 54 FR 52891, Dec. 22, 1989)
$ 501.13 Appeal.
There is no administrative appeal of any final administrative action to which this part applies.
8501.14 Notice to Environmental Pro
tection Agency. A copy of any proposed rule or order that imposes a prohibition, order that imposes a prohibition, or a petition for an exemption or permit, shall be transmitted 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 (54 FR 52891, Dec. 22, 1989)
Notice of Acceptance of certification is 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 section
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 $ 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 discretion.
(c) Because a conference is solely for the exchange of views incident to a proceeding, there will be no formal report or findings by OFE unless OFE in its discretion determines that the preparation of a report or findings would be advisable. OFE will, however, place in the public file a record of any conference.
ceeding 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 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) Existing 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 pro
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 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