Federal Register / Vol. 60, No. 54 / Tuesday, March 21, 1995 / Rules and Regulations 15015

Administration Act of 1974, Section 21

(15 U.S.C. 780), apart from or in

addition to the other proceedings

described in this part. This subpart may

also apply if cross referenced in another

DOE rule or regulation, or in a DOE

delegation of authority. Petitions under

this subpart shall include those seeking

special assistance based on an assertion

that DOE is not complying with its

rules, regulations, or orders.

§ 1003.71 Who may file.

Any person may file a petition under

this subpart who is adversely affected

by any DOE rule, regulation or order

subject to 15 U.S.C. 780 or who is so

authorized by a program rule or

regulation or a DOE delegation of

authority.

§ 1003.72 What to file.

The person seeking relief under this

subpart shall file a ‘‘Petition for Special

Redress or Other Relief,’’ which shall be

clearly labeled as such both on the

petition and on the outside of the

envelope in which it is transmitted, and

shall be in writing. The general filing

requirements stated in § 1003.9 shall be

complied with in addition to the

requirements stated in this subpart.

§ 1003.73 Where to file.

A petition shall be filed with the OHA

at the address provided in § 1003.11.

§ 1003.74 Notice.

(a) The person filing the petition,

except a petition that asserts that the

DOE is not complying with agency

rules, regulations, or orders, shall send

by United States mail a copy of the

petition and any subsequent

amendments or other documents

relating to the petition, or a copy from

which confidential information has

been deleted in accordance with

§ 1003.9(f), to each person who is

reasonably ascertainable by the

petitioner as a person who would be

aggrieved by the OHA action sought.

The copy of the petition shall be

accompanied by a statement that the

person may submit comments regarding

the petition to the OHA within 10 days.

The copy filed with the OHA shall

include certification that the

requirements of this paragraph have

been complied with and shall include

the names and addresses of each person

to whom a copy of the petition was sent.

(b) Notwithstanding the provisions of

paragraph (a) of this section, if the

petitioner determines that compliance

with paragraph (a) of this section would

be impracticable, the petitioner shall:

(1) Comply with the requirements of

paragraph (a) of this section with regard

to those persons whom it is reasonable

and practicable to notify; and

(2) Include with the petition a

description of the persons or class or

classes of persons to whom notice was

not sent.

(3) The OHA may require the

petitioner to provide additional or

alternative notice, or may determine

that the notice required by paragraph (a)

of this section is not impracticable, or

may determine that notice should be

published in the Federal Register.

(c) The OHA shall serve notice on any

other person readily identifiable by the

OHA as one who would be aggrieved by

the OHA action sought and may serve

notice on any other person that written

comments regarding the petition will be

accepted if filed within 10 days of

service of that notice.

(d) Any person submitting written

comments to the OHA regarding a

petition filed under his subpart shall

send a copy of the comments, or a copy

from which confidential information

has been deleted in accordance with

§ 1003.9(f), to the petitioner. The person

shall certify to the OHA that he has

complied with the requirements of this

paragraph. The OHA may notify other

persons participating in the proceeding

of such comments and provide an

opportunity for such persons to

respond.

§ 1003.75 Contents.

The petition shall contain a full and

complete statement of all relevant facts

pertaining to the circumstances, act or

transaction that is the subject of the

petition and to the OHA action sought.

Such facts shall include, but not be

limited to, the names and addresses of

all affected persons (if reasonably

ascertainable); a complete statement of

the business or other reasons that justify

the act or transaction, if applicable; a

description of the act or transaction, if

applicable; a description of the acts or

transactions that would be affected by

the requested action; a full discussion of

the pertinent provisions and relevant

facts contained in the documents

submitted with the petition, and an

explanation of how the petitioner is

aggrieved by DOE’s position. Copies of

all contracts, agreements, leases,

instruments, and other documents

relevant to the petition shall be

submitted to the OHA upon its request.

§ 1003.76 OHA evaluation of request.

(a) (1) The OHA may initiate an

investigation of any statement in a

petition and utilize in its evaluation any

relevant facts obtained by such

investigation. The OHA may solicit and

accept submissions from third persons

relevant to any petition provided that

the petitioner is afforded an opportunity

to respond to all third person

submissions. In evaluating a petition,

the OHA may consider any other source

of information. The OHA on its own

initiative may convene a conference, if,

in its discretion, it considers that such

will advance its evaluation of the

petition.

(2) If the OHA determines that there

is insufficient information upon which

to base a decision and if, upon request,

the necessary additional information is

not submitted, the OHA may dismiss

the petition without prejudice. If the

failure to supply additional information

is repeated or willful, the OHA may

dismiss the petition with prejudice. If

the petitioner fails to provide the notice

required by § 1003.74, the OHA may

dismiss the petition without prejudice.

(b) (1) The OHA will dismiss without

prejudice a ‘‘Petition for Special Redress

or Other Relief’’ if it determines that

another more appropriate proceeding is

provided by this part.

(2) The OHA will dismiss with

prejudice a ‘‘Petition for Special Redress

or Other Relief’’ filed by a person who

has exhausted his administrative

remedies with respect to any proceeding

provided by this part, and received a

final order therefrom that addresses the

same issue or transaction.

§ 1003.77 Decision and Order.

(a) Upon consideration of the petition

and other relevant information received

or obtained during the proceeding, the

OHA will issue a Decision and Order

granting or denying the petition.

(b) The Decision and Order denying

or granting the petition shall include a

written statement setting forth the

relevant facts and legal basis for the

Decision and Order. Such Decision and

Order shall state that it is a final order

of the DOE of which the petitioner may

seek judicial review.

[FR Doc. 95–6797 Filed 3–20–95; 8:45 am]

BILLING CODE 6450–01–P

DEPARTMENT OF ENERGY

10 CFR Parts 430, 765, and 766

Payments Equal to Taxes Provisions of

the Nuclear Waste Policy Act of 1982,

As Amended, Interpretation and

Procedures

AGENCY: Office of Hearings and Appeals,

DOE.

ACTION: Final rule; technical

amendments.
15016 Federal Register / Vol. 60, No. 54 / Tuesday, March 21, 1995 / Rules and Regulations

1The affected provision in the PETT rule, with all

changes made today, now reads:

D. Appeals Process

An appeals process is available for those

jurisdictions which are challenging the original

DOE determination related to PETT. In order to

exhaust administrative remedies, appeals must be

filed with the Office of Hearings and Appeals

(OHA), U.S. Department of Energy, 1000

Independence Avenue, SW., Washington, DC

20585. The appeal must be filed within 45 days

from the date of issuance of an original DOE

determination related to PETT. Appeals will be

governed by procedures set forth in 10 CFR part

1003, subpart C. [56 FR at 42319.]

SUMMARY: The Department is amending

four rules which provide for

adjudications by the Office of Hearings

and Appeals (OHA), in order to conform

them to OHA procedural regulations

contained in a new part 1003 of chapter

X, being published elsewhere in this

issue of the Federal Register. This

change of procedural references will not

substantively affect the remedies

provided under those rules. The

Department is also amending certain

rules to make clear its original intent

that an appeal must be taken with OHA

in order to exhaust administrative

remedies.

EFFECTIVE DATE: These rules become

effective April 20, 1995.

FOR FURTHER INFORMATION CONTACT:

Roger Klurfeld, Assistant Director,

Office of Hearings and Appeals, U.S.

Department of Energy, 1000

Independence Avenue, SW.,

Washington, DC 20585, Telephone:

202–586–2383, Internet:

roger.klurfeld@hq.doe.gov.

SUPPLEMENTARY INFORMATION: OHA is a

quasi-judicial body reporting to the

Secretary of Energy. It is responsible for

conducting most informal adjudicative

proceedings of DOE where there is

provision for separation of functions,

other than those which are subject to the

jurisdiction of the Federal Energy

Regulatory Commission. Until today,

procedural regulations governing OHA

practice appeared mainly in part 205 of

title 10 of the Code of Federal

Regulations. Part 205, however, was

designed to apply to matters involving

the former oil price and allocation

control regulations which were in effect

during the period 1973 through January

1981. Because those oil-related

proceedings are winding down, and the

OHA is conducting a variety of other

informal adjudications for the

Department, the OHA procedural

regulations have been organized as a

new part 1003 within chapter X of title

10, which contains the general

provisions of DOE regulations. Part 205

will continue to be used only to

adjudicate matters which relate

specifically to the federal oil

regulations, while new part 1003 will be

used for adjudicating most other matters

within OHA’s jurisdiction.

The procedures codified in part 1003

become applicable where program rules

specifically reference them and state

that a member of the public can make

a request for relief under these rules.

Four program rules or regulations

currently reference part 205 procedures

where the new part 1003 procedures

would be more appropriate.

Accordingly, DOE hereby is updating

those references as follows. Until today,

the program regulations that the

Department promulgated in the Energy

Conservation Program for Consumer

Products, 10 CFR part 430, have stated

that any person receiving an order may

file an appeal with OHA using that

office’s appellate rules provided in 10

CFR part 205, subpart H. See 10 CFR

430.27(n). This provision is updated to

reference the new appeals procedure in

10 CFR part 1003, subpart C. The same

change is made in program regulations

contained in 10 CFR part 765

(Reimbursement for Costs of Remedial

Action at Active Uranium and Thorium

Processing Sites) and 10 CFR part 766

(Uranium Enrichment Decontamination

and Decommissioning Fund; Procedures

for Special Assessment of Domestic

Utilities). See 10 CFR 765.22(b) and 10

CFR 766.104(d). Finally, the Department

stated in implementing the PaymentsEqual-to-Taxes (PETT) provisions of the

Nuclear Waste Policy Act of 1982, as

amended, that an entity may file an

appeal with OHA of a DOE PETT

determination using the OHA’s 10 CFR

part 205, subpart H appellate rules. See

Payments-Equal-To-Taxes Provisions of

the Nuclear Waste Policy Act of 1982,

as Amended, Interpretation and

Procedures, as published in the Federal

Register on August 27, 1991 (56 FR

42314). The reference on page 42319,

column 2, of that notice to ‘‘10 CFR part

205 subpart H’’ is hereby changed to ‘‘10

CFR part 1003, subpart C.’’ Therefore,

persons following procedures for the

PETT provisions should now refer to 10

CFR part 1003, subpart C.

The procedural rules contained in the

new 10 CFR part 1003, subpart C,

correspond to nearly identical

procedural rules contained in

previously applicable 10 CFR part 205,

subpart H. Thus, the foregoing

conforming amendments adopted today

merely change the procedural references

and do not substantively affect the

remedies available to aggrieved parties

under the affected program rules.

It has always been the intent of DOE

to require parties to pursue an

administrative appeal prior to seeking

judicial review. The Supreme Court has

interpreted section 10(c) of the

Administrative Procedure Act (APA) (5

U.S.C. 704) to provide that, with respect

to actions brought under the APA, an

administrative appeal is a prerequisite

to judicial review only when expressly

required by statute or when an agency

rule requires appeal before review and

the administrative action is made

inoperative pending that review. Darby

v. Cisneros, 113 S. Ct. 2539, 125 L. Ed.

2d 113 (1993). Accordingly, the

Department is also amending two

program rules to make clear its original

intent that a person who receives an

order from program officials must file an

appeal with OHA and await the

issuance of an order granting or denying

the appeal in order to exhaust

administrative remedies. The two

programs are 10 CFR part 430 regarding

consumer products and PETT

determinations under the Nuclear Waste

Policy Act of 1982. With respect to the

rule on PETT determinations, as

published in the Federal Register on

August 27, 1991 (56 FR 42314), the

phrase on page 42319, column 2, that

‘‘Appeals may be filed with the Office

of Hearings and Appeals (OHA)’’ is

modified to read ‘‘In order to exhaust

administrative remedies, appeals must

be filed with the Office of Hearings and

Appeals (OHA)’’.1 The specific changes

to part 430 are set forth later in this

notice.

Finally, a slight, nonsubstantive

stylistic change is made in part 765.

List of Subjects

10 CFR Part 430

Administrative Practice and

Procedure, Energy Conservation,

Household Appliances.

10 CFR Part 765

Radioactive materials, Reclamation,

Reporting and recordkeeping

requirements, Uranium.

10 CFR Part 766

Confidential Business Information,

Electric Power Rates, Electric Utilities,

Nuclear Materials, Radioactive

Materials, Reclamation, Reporting and

Recordkeeping Requirements, Uranium,

Waste Treatment and Disposal.

Issued in Washington, DC on March 14,

1995.

George B. Breznay,

Director, Office of Hearings and Appeals.

For the reasons set forth in the

preamble, 10 CFR parts 430, 765 and

766 are amended as set forth below:
Federal Register / Vol. 60, No. 54 / Tuesday, March 21, 1995 / Rules and Regulations 15017

PART 430—ENERGY CONSERVATION

PROGRAM FOR CONSUMER

PRODUCTS

1. The authority citation for part 430

continues to read as follows:

Authority: 42 U.S.C. 6291–6309.

§ 430.27 [Amended]

2. Section 430.27(n) is amended by

adding at the beginning of the paragraph

the phrase ‘‘In order to exhaust

administrative remedies,’’, by revising

the word ‘‘may’’ to read ‘‘must’’, and by

revising the reference to ‘‘10 CFR part

205, subpart H’’ to read ‘‘10 CFR part

1003, subpart C’’.

PART 765—REIMBURSEMENT FOR

COSTS OF REMEDIAL ACTION AT

ACTIVE URANIUM AND THORIUM

PROCESSING SITES

3. The authority citation for part 765

continues to read as follows:

Authority: Sections 1001–1004 of Pub. L.

No. 102–486, 106 Stat. 2776 (42 U.S.C. 2296a

et seq.)

4. Section 765.22(b) (third sentence) is

revised to read as follows:

§ 765.22 Appeals procedures.

(a) * * *

(b) * * * Appeals must comply with

the procedures set forth in 10 CFR part

1003, subpart C. * * *

PART 766—URANIUM ENRICHMENT

DECONTAMINATION AND

DECOMMISSIONING FUND;

PROCEDURES FOR SPECIAL

ASSESSMENT OF DOMESTIC

UTILITIES

5. The authority citation for part 766

continues to read as follows:

Authority: 42 U.S.C. 2201, 2297g, 2297g–

1, 2297g–2, 7254.

§ 766.104 [Amended]

6. Section 766.104(d) (second

sentence) is amended by revising ‘‘10

CFR part 205, subpart H’’ to read ‘‘10

CFR part 1003, subpart C’’.

[FR Doc. 95–6798 Filed 3–20–95; 8:45 am]

BILLING CODE 6450–01–P