15004 Federal Register / Vol. 60, No. 54 / Tuesday, March 21, 1995 / Rules and Regulations

1 Elsewhere in today’s Federal Register, DOE is

changing existing references in program rules from

part 205 to part 1003. For instance, the DOE is

modifying section 430.27(n) of 10 CFR part 430

(DOE Energy Conservation Program for Consumer

Products) to provide that an aggrieved person filing

an appeal under that part shall proceed under

subpart C of the new part 1003, in place of subpart

H of part 205. Future rulemakings which invoke

OHA’s adjudicatory authority will refer to the rules

contained in part 1003 as the operative

administrative process.

2 Similarly under delegation to OHA, persons

may petition for relief under subpart G (Private

Grievances and Redress) with respect to those

program functions assigned to DOE under the FEAA

which are not oil related. (See FEAA section 21, 15

U.S.C. 780.)

DEPARTMENT OF ENERGY

10 CFR Part 1003

RIN 1901–AA55

Office of Hearings and Appeals

Procedural Regulations

AGENCY: Office of Hearings and Appeals,

DOE.

ACTION: Final rule.

SUMMARY: The Department of Energy

(DOE) amends its regulations by adding

a new part to contain procedural

regulations governing proceedings

before the Office of Hearings and

Appeals (OHA), a quasi-judicial branch

of the DOE, pertaining to matters within

the jurisdiction of that Office. These

rules streamline and distill the

procedures governing the conduct of

proceedings before the OHA and update

pertinent filing information. They will

be used by OHA in most cases that do

not involve the former federal

petroleum price and allocation control

regulations.

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:

I. Discussion

II. Procedural Requirements

I. Discussion

The Office of Hearings and Appeals

(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. In connection with these

duties, OHA holds hearings, receives

evidence, develops the record, and

issues final agency determinations,

which are subject to review in the

federal courts. Except for regulations

governing proceedings before the Board

of Contract Appeals and other

procurement and financial assistance

appeals boards in DOE (which are

independent components of the Office

of Hearings and Appeals and governed

by their own rules), procedural

regulations governing OHA practice

generally have appeared before today in

part 205 of title 10 of the Code of

Federal Regulations. Part 205 is a part

of chapter II, subchapter A of the DOE

regulations, and 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. Part 205 will be

retained until the remaining oil-related

proceedings are completed. Because

those oil-related proceedings are

winding down, and the OHA is

conducting a variety of other informal

adjudications for the Department, it is

now appropriate that the OHA

procedural regulations should appear in

chapter X of title 10, which contains the

general provisions of DOE regulations.

The rules issued today will be organized

as a new part 1003 within chapter X,

and will be used by OHA in most cases

that do not involve the former federal

petroleum regulations. At the same

time, these new procedures governing

the conduct of proceedings before the

OHA have been streamlined, and

pertinent filing information has been

updated.

A Notice of Proposed Rulemaking was

published in the Federal Register on

July 7, 1994 (59 FR 34767). No

comments were received.

Apart from general filing procedures,

the regulations issued today set forth

OHA procedures for adjudicating

various applications, petitions, motions

and related requests filed by the public.

These regulations include procedures

for the filing of: (1) Applications for

Exception from a DOE rule, regulation

or action having the effect of a rule as

defined by 5 U.S.C. 551(4); (2) Appeals

of DOE orders; (3) Applications for Stay

of DOE orders; (4) Motions for

Modification or Rescission of OHA

orders; (5) Requests for Conferences and

Hearings before OHA; and (6) Petitions

for Special Redress or Other Relief.

These rules are not intended to grant

by themselves any new authority to the

Office of Hearings and Appeals to

conduct informal adjudications. They

are designed to provide standard

procedural rules that may be used to

cover a variety of situations that may be

encountered by the many different

programs that the Department

implements.

There are two ways these regulations

become applicable. First, the procedures

outlined in these rules 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. For

example, the program regulations that

the Department promulgated in the

Energy Conservation Program for

Consumer Products state that any

person receiving an order may file an

appeal with the Office of Hearings and

Appeals using that Office’s appellate

rules. See 10 CFR 430.27(n).1

Second, these rules may be applicable

where a statute requires or authorizes

the Department to provide procedures

that permit the public to seek redress,

and the appropriate departmental

official has delegated the responsibility

to implement that requirement to the

Office of Hearings and Appeals. For

example, section 504 (42 U.S.C. 7194) of

the Department of Energy Organization

Act (DOE Act) (42 U.S.C. 7101 et seq.)

requires the Secretary of Energy to

provide for the making of adjustments to

a rule or regulation issued under four

statutes—the Emergency Petroleum

Allocation Act of 1973 (since expired),

the Federal Energy Administration Act

of 1974 (FEAA), the Energy Supply and

Environmental Coordination Act of

1974, and the Energy Policy and

Conservation Act—as may be necessary

to prevent special hardship, inequity, or

unfair distribution of burdens. The

Secretary has delegated that

responsibility to the Office of Hearings

and Appeals, which is promulgating

procedures in subpart B today by which

members of the public may seek an

exception from rules or regulations

issued under the three named statutes

which remain in effect.2 (See also part

205, subpart D, for exception provisions

applicable to the oil program.)

Despite the establishment of standard

procedures in these rules, there may be

situations where the Office of Hearings

and Appeals needs to use procedures

specific to the particular needs of a

program. In those situations, DOE

program regulations themselves contain

procedures governing OHA proceedings

conducted under authority of those

particular regulations, rather than a

reference to OHA procedural rules. For

example, the DOE Contractor Employee

Protection Program contains procedural

rules governing OHA proceedings under

10 CFR part 708. Similarly, procedural
Federal Register / Vol. 60, No. 54 / Tuesday, March 21, 1995 / Rules and Regulations 15005

rules governing OHA proceedings

involving eligibility for access to

classified matter or special nuclear

material are contained in 10 CFR part

710. Under these circumstances, the

rules in the program rules would govern

OHA proceedings in those matters, and

the rules in part 1003 would not apply.

With the exception of the regulations

governing the filing and adjudication of

an Application for Exception, the rules

promulgated today correspond to nearly

identical procedural rules contained in

10 CFR part 205, which were

promulgated in the 1970’s to adjudicate

matters relating to the federal oil

regulations. Regulations concerning the

filing and adjudication of an

Application for Exception have been

revised and are contained in 10 CFR

part 1003, subpart B. Generally, an

Application for Exception may be filed

by a person seeking an exception from

a DOE regulatory requirement, where

such relief is authorized by the

pertinent regulations or underlying

statute. Similar to the regulations

appearing in 10 CFR part 205, subpart

D, the rules promulgated today provide

that an aggrieved person may file an

Application for Exception from a DOE

regulation on the basis that the specific

regulatory requirement results in a

serious hardship, gross inequity or

unfair distribution of burdens. The rules

set forth in part 1003, subpart B, present

a simpler procedure than the rules in

part 205, subpart D, by (1) eliminating

the issuance of a Proposed Decision and

Order and related procedures prior to

issuance of a final Decision and Order,

and (2) providing for an administrative

appeal of the final Decision and Order

by an aggrieved party directly to OHA,

except in exception proceedings brought

under section 504 of the DOE Act which

will continue to be appealable to the

Federal Energy Regulatory Commission.

The rules make the adjudication of

Applications for Exception more

effective since they are more practicable

than the more complex procedures of

part 205, subpart D, which were

formulated in contemplation of the

federal oil regulations.

It is 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, new 10 CFR

1003.30 provides that a person

aggrieved by a DOE order appealable

under subpart C of these regulations has

not exhausted administrative remedies

until an appeal has been filed and an

order granting or denying the appeal has

been issued. In addition, section

1003.30 provides that a person filing an

appeal must also file an ‘‘Application

for Stay’’ under subpart D of part 1003

if the grant of such a stay is necessary

to render the administrative action

inoperable and thus preclude judicial

review pending final OHA action on the

appeal.

II. Procedural Requirements

A. Executive Order 12866

Today’s regulatory action has been

determined not to be a ‘‘significant

regulatory action’’ under Executive

Order 12866, ‘‘Regulatory Planning and

Review’’ (58 FR 51735, October 4, 1993).

Accordingly, today’s action was not

subject to review under the Executive

Order by the Office of Information and

Regulatory Affairs.

B. Executive Order 12612

Executive Order 12612 requires that

regulations or rules be reviewed for

direct effects on States, on the

relationship between the national

government and the States, or in the

distribution of power among various

levels of government. If there are

sufficient substantial direct effects, then

Executive Order 12612 requires

preparation of a federalism assessment

to be used in all decisions involved in

promulgating or implementing a

regulation or rule.

Today’s regulations do not affect any

traditional State function. There are

therefore no substantial direct effects

requiring evaluation or assessment

under Executive Order 12612.

C. Regulatory Flexibility Analysis

These regulations were reviewed

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.) which requires

preparation of a regulatory flexibility

analysis for any regulations that will

have a significant economic impact on

a substantial number of small entities.

This action essentially recodifies

existing procedural regulations. DOE,

accordingly, certifies that there will not

be a significant and adverse economic

impact on a substantial number of small

entities and that preparation of a

regulatory flexibility analysis is not

warranted.

D. National Environmental Policy Act

The rules issued today are strictly

procedural in nature. Preparation of an

environmental assessment or

environmental impact statement under

the National Environmental Policy Act

of 1969, as amended (42 U.S.C. 4321 et

seq.) is not required for such rules under

Appendix A to subpart D of 10 CFR part

1021. More specifically, DOE has

determined that this rule is covered

under the Categorical Exclusion found

in paragraph A.6 of Appendix A to

subpart D of part 1021, which applies to

the establishment of procedural

rulemakings. Accordingly, neither an

environmental assessment nor an

environmental impact statement is

required.

E. Paperwork Reduction Act

There will be no additional

paperwork burden imposed by the rules

issued today. Therefore, the goals of the

Paperwork Reduction Act are not

diminished by the rules.

F. Review Under Executive Order 12778

Section 2 of Executive Order 12778

instructs each agency to adhere to

certain requirements in promulgating

new regulations and reviewing existing

regulations. These requirements, set

forth in sections 2(a) and (b)(2), include

eliminating drafting errors and needless

ambiguity, drafting the regulations to

minimize litigation, providing clear and

certain legal standards for affected

conduct, and promoting simplification

and burden reduction. Agencies are also

instructed to make every reasonable

effort to ensure that the regulation

specifies clearly any preemptive effect,

effect on existing federal law or

regulation, and retroactive effect;

describes any administrative

proceedings to be available prior to

judicial review and any provisions for

the exhaustion of such administrative

proceedings; and defines key terms. The

DOE certifies that today’s rule meets the

requirements of sections 2(a) and (b)(2)

of Executive Order 12778.

List of Subjects in 10 CFR Part 1003

Administrative practice and

procedure, Appeal procedures, Hearing

and appeal procedures, Practice and

procedure.

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, title 10, chapter X of the CFR

is amended by adding a new part 1003

to read as set forth below:
15006 Federal Register / Vol. 60, No. 54 / Tuesday, March 21, 1995 / Rules and Regulations

PART 1003—OFFICE OF HEARINGS

AND APPEALS PROCEDURAL

REGULATIONS

Subpart A—General Provisions

Sec.

1003.1 Purpose and scope.

1003.2 Definitions.

1003.3 Appearance before the OHA.

1003.4 Filing of documents.

1003.5 Computation of time.

1003.6 Extension of time.

1003.7 Service.

1003.8 Subpoenas, special report orders,

oaths, witnesses.

1003.9 General filing requirements.

1003.10 Effective date of orders.

1003.11 Address for filing documents.

1003.12 Ratification of prior directives,

orders and actions.

1003.13 Public reference room.

1003.14 Notice of proceedings.

Subpart B—Exceptions

1003.20 Purpose and scope.

1003.21 What to file.

1003.22 Where to file.

1003.23 Notice.

1003.24 Contents.

1003.25 OHA evaluation.

1003.26 Decision and Order.

1003.27 Appeal of exception order.

Subpart C—Appeals

1003.30 Purpose and scope.

1003.31 Who may file.

1003.32 What to file.

1003.33 Where to file.

1003.34 Notice.

1003.35 Contents.

1003.36 OHA evaluation.

1003.37 Decision and Order.

Subpart D—Stays

1003.40 Purpose and scope.

1003.41 What to file.

1003.42 Where to file.

1003.43 Notice.

1003.44 Contents.

1003.45 OHA evaluation.

1003.46 Decision and Order.

Subpart E—Modification or Rescission

1003.50 Purpose and scope.

1003.51 What to file.

1003.52 Where to file.

1003.53 Notice.

1003.54 Contents.

1003.55 OHA evaluation.

1003.56 Decision and Order.

Subpart F—Conferences and Hearings

1003.60 Purpose and scope.

1003.61 Conferences.

1003.62 Hearings.

Subpart G—Private Grievances and

Redress

1003.70 Purpose and scope.

1003.71 Who may file.

1003.72 What to file.

1003.73 Where to file.

1003.74 Notice.

1003.75 Contents.

1003.76 OHA evaluation of request.

1003.77 Decision and Order.

Authority: 15 U.S.C. 761 et seq.; 42 U.S.C.

7101 et seq.

Subpart A—General Provisions

§ 1003.1 Purpose and scope.

This part establishes the procedures

to be utilized and identifies the

sanctions that are available in most

proceedings before the Office of

Hearings and Appeals of the Department

of Energy. These procedures provide

standard rules of practice in a variety of

informal adjudications when

jurisdiction is vested in the Office of

Hearings and Appeals. Any or all of the

procedures contained in this part may

be incorporated by reference in another

DOE rule or regulation which invokes

the adjudicatory authority of the Office

of Hearings and Appeals. The

procedures may also be made applicable

at the direction of an appropriate DOE

official if incorporated by reference in

the delegation. These rules do not apply

in instances in which DOE regulations

themselves contain procedures

governing OHA proceedings conducted

under authority of those particular

regulations. (E.g., 10 CFR part 708–DOE

Contractor Employee Protection

Program; 10 CFR part 710–Criteria and

Procedures for Determining Eligibility

for Access to Classified Matter or

Special Nuclear Material.) These rules

also do not apply to matters which

relate specifically to the federal oil

regulations (10 CFR parts 210, 211, and

212) and which are governed by the

procedures contained in 10 CFR part

205, or to matters before the DOE Board

of Contract Appeals or other

procurement and financial assistance

appeals boards, which are governed by

their own rules.

§ 1003.2 Definitions.

(a) As used in this part:

Action means an order issued, or a

rulemaking undertaken, by the DOE.

Aggrieved, with respect to a person,

means adversely affected by an action of

the DOE.

Conference means an informal

meeting between the Office of Hearings

and Appeals and any person aggrieved

by an action of the DOE.

Director means the Director of the

Office of Hearings and Appeals or duly

authorized delegate.

DOE means the Department of Energy,

created by the Department of Energy

Organization Act (42 U.S.C. 7101 et

seq.).

Duly authorized representative means

a person who has been designated to

appear before the Office of Hearings and

Appeals in connection with a

proceeding on behalf of a person

interested in or aggrieved by an action

of the DOE. Such appearance may

consist of the submission of a written

document, a personal appearance,

verbal communication, or any other

participation in the proceeding.

Exception means the waiver or

modification of the requirements of a

rule, regulation or other DOE action

having the effect of a rule as defined by

5 U.S.C. 551(4) under a specific set of

facts, pursuant to subpart B of this part.

Federal legal holiday means the first

day of January, the third Monday of

January, the third Monday of February,

the last Monday of May, the fourth day

of July, the first Monday of September,

the second Monday of October, the

eleventh day of November, the fourth

Thursday of November, the twenty-fifth

day of December, or any other calendar

day designated as a holiday by federal

statute or Executive order.

OHA means the Office of Hearings

and Appeals of the Department of

Energy.

Order means the whole or a part of a

final disposition, whether affirmative,

negative, injunctive, or declaratory in

form, of DOE in a matter other than

rulemaking but including licensing.

This definition does not include

internal DOE orders and directives

issued by the Secretary of Energy or

delegate in the management and

administration of departmental

elements and functions.

Person means any individual, firm,

estate, trust, sole proprietorship,

partnership, association, company,

joint-venture, corporation, governmental

unit or instrumentality thereof, or a

charitable, educational or other

institution, and includes any officer,

director, owner or duly authorized

representative thereof.

Proceeding means the process and

activity, and any part thereof, instituted

by the OHA, either on its own initiative

or in response to an application,

complaint, petition or request submitted

by a person, that may lead to an action

by the OHA.

SRO means a special report order

issued pursuant to § 1003.8(b) of this

part.

(b) Throughout this part the use of a

word or term in the singular shall

include the plural, and the use of the

male gender shall include the female

gender.

§ 1003.3 Appearance before the OHA.

(a) A person may make an

appearance, including personal

appearances in the discretion of the

OHA, and participate in any proceeding

described in this part on his own behalf

or by a duly authorized representative.
Federal Register / Vol. 60, No. 54 / Tuesday, March 21, 1995 / Rules and Regulations 15007

Any application, appeal, petition, or

request filed by a duly authorized

representative shall contain a statement

by such person certifying that he is a

duly authorized representative.

Falsification of such certification will

subject such person to the sanctions

stated in 18 U.S.C. 1001.

(b) Suspension and disqualification.

The OHA may deny, temporarily or

permanently, the privilege of

participating in proceedings, including

oral presentation, to any individual who

is found by the OHA—

(1) To have made false or misleading

statements, either verbally or in writing;

(2) To have filed false or materially

altered documents, affidavits or other

writings;

(3) To lack the specific authority to

represent the person seeking an OHA

action; or

(4) To have engaged in or to be

engaged in contumacious conduct that

substantially disrupts a proceeding.

§ 1003.4 Filing of documents.

(a) Any document filed with the OHA

must be addressed as required by

§ 1003.11, and should conform to the

requirements contained in § 1003.9. All

documents and exhibits submitted

become part of an OHA file and will not

be returned.

(b) A document submitted in

connection with any proceeding

transmitted by first class United States

mail and properly addressed is

considered to be filed upon mailing.

(c) Hand-delivered documents to be

filed with the OHA shall be submitted

to Room 1E–234 at 1000 Independence

Avenue, S.W., Washington, D.C., on

business days between the hours of 2:00

p.m. and 4:30 p.m.

(d) Documents hand delivered or

received electronically after regular

business hours are deemed filed on the

next regular business day.

§ 1003.5 Computation of time.

(a) Days. (1) Except as provided in

paragraph (b) of this section, in

computing any period of time

prescribed or allowed by these

regulations or by an order of the OHA,

the day of the act, event, or default from

which the designated period 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 not a

Saturday, Sunday, or a federal legal

holiday.

(2) Saturdays, Sundays and federal

legal holidays shall be excluded from

the computation of time when the

period of time allowed or prescribed is

7 days or less.

(b) Hours. If the period of time

prescribed in an order issued by the

OHA is stated in hours rather than days,

the period of time shall begin to run

upon actual notice of such order,

whether by verbal or written

communication, to the person directly

affected, and shall run without

interruption, unless otherwise provided

in the order, or unless the order is

stayed, modified, suspended or

rescinded. When a written order is

transmitted by verbal communication,

the written order shall be served as soon

thereafter as is feasible.

(c) 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 after issuance to such

person of an order, notice or other

document and the order, notice or other

document is served solely by mail, 3

days shall be added to the prescribed

period.

§ 1003.6 Extension of time.

When a document is required to be

filed within a prescribed time, an

extension of time to file may be granted

by the OHA upon good cause shown.

§ 1003.7 Service.

(a) All documents required to be

served under this part shall be served

personally or by first class United States

mail, except as otherwise provided.

(b) Service upon a person’s duly

authorized representative shall

constitute service upon that person.

(c) Official United States Postal

Service receipts from certified mailing

shall constitute evidence of service.

§ 1003.8 Subpoenas, special report orders,

oaths, witnesses.

(a) In accordance with the provisions

of this section and as otherwise

authorized by law, the Director may

sign, issue and serve subpoenas;

administer oaths and affirmations; take

sworn testimony; compel attendance of

and sequester witnesses; control

dissemination of any record of

testimony taken pursuant to this

section; subpoena and reproduce books,

papers, correspondence, memoranda,

contracts, agreements, or other relevant

records or tangible evidence including,

but not limited to, information retained

in computerized or other automated

systems in possession of the

subpoenaed person.

(b) The Director may issue a Special

Report Order requiring any person

subject to the jurisdiction of the OHA to

file a special report providing

information relating to the OHA

proceeding, including but not limited to

written answers to specific questions.

The SRO may be in addition to any

other reports required.

(c) The Director, for good cause

shown, may extend the time prescribed

for compliance with the subpoena or

SRO and negotiate and approve the

terms of satisfactory compliance.

(d) Prior to the time specified for

compliance, but in no event more than

10 days after the date of service of the

subpoena or SRO, the person upon

whom the document was served may

file a request for review of the subpoena

or SRO with the Director. The Director

then shall provide notice of receipt to

the person requesting review, may

extend the time prescribed for

compliance with the subpoena or SRO,

and may negotiate and approve the

terms of satisfactory compliance.

(e) If the subpoena or SRO is not

modified or rescinded within 10 days of

the date of the Director’s notice of

receipt:

(1) The subpoena or SRO shall be

effective as issued; and

(2) The person upon whom the

document was served shall comply with

the subpoena or SRO within 20 days of

the date of the Director’s notice of

receipt, unless otherwise notified in

writing by the Director.

(f) There is no administrative appeal

of a subpoena or SRO.

(g) A subpoena or SRO shall be served

upon a person named in the document

by delivering a copy of the document to

the person named.

(h) Delivery of a copy of a subpoena

or SRO to a natural person may be made

by:

(1) Handing it to the person;

(2) Leaving it at the person’s office

with the person in charge of the office;

(3) Leaving it at the person’s dwelling

or usual place of abode with a person

of suitable age and discretion who

resides there;

(4) Mailing it to the person by

certified mail, at his last known address;

or

(5) Any method that provides the

person with actual notice prior to the

return date of the document.

(i) Delivery of a copy of a subpoena

or SRO to a person who is not a natural

person may be made by:

(1) Handing it to a registered agent of

the person;

(2) Handing it to any officer, director,

or agent in charge of any office of such

person;

(3) Mailing it to the last known

address of any registered agent, officer,

director, or agent in charge of any office

of the person by certified mail; or
15008 Federal Register / Vol. 60, No. 54 / Tuesday, March 21, 1995 / Rules and Regulations

(4) Any method that provides any

registered agent, officer, director, or

agent in charge of any office of the

person with actual notice of the

document prior to the return date of the

document.

(j) A witness subpoenaed by the OHA

may be paid the same fees and mileage

as paid to a witness in the district courts

of the United States.

(k) If in the course of a proceeding a

subpoena is issued at the request of a

person other than an officer or agency

of the United States, the witness fees

and mileage shall be paid by the person

who requested the subpoena. However,

at the request of the person, the witness

fees and mileage may be paid by the

OHA if the person shows:

(1) The presence of the subpoenaed

witness will materially advance the

proceeding; and

(2) The person who requested that the

subpoena be issued would suffer a

serious hardship if required to pay the

witness fees and mileage.

(l) If any person upon whom a

subpoena or SRO is served pursuant to

this section refuses or fails to comply

with any provision of the subpoena or

SRO, an action may be commenced in

the appropriate United States District

Court to enforce the subpoena or SRO.

(m) Documents produced in response

to a subpoena shall be accompanied by

the sworn certification, under penalty of

perjury, of the person to whom the

subpoena was directed or his authorized

agent that:

(1) A diligent search has been made

for each document responsive to the

subpoena; and

(2) To the best of his knowledge,

information, and belief each document

responsive to the subpoena is being

produced.

(n) Any information furnished in

response to an SRO shall be

accompanied by the sworn certification,

under penalty of perjury, of the person

to whom it was directed or his

authorized agent who actually provides

the information that:

(1) A diligent effort has been made to

provide all information required by the

SRO; and

(2) All information furnished is true,

complete, and correct.

(o) If any document responsive to a

subpoena is not produced or any

information required by an SRO is not

furnished, the certification shall include

a statement setting forth every reason for

failing to comply with the subpoena or

SRO. If a person to whom a subpoena

or SRO is directed withholds any

document or information because of a

claim of attorney-client or other

privilege, the person submitting the

certification required by paragraph (m)

or (n) of this section also shall submit

a written list of the documents or the

information withheld indicating a

description of each document or

information, the date of the document,

each person shown on the document as

having received a copy of the document,

each person shown on the document as

having prepared or been sent the

document, the privilege relied upon as

the basis for withholding the document

or information, and an identification of

the person whose privilege is being

asserted.

(p) If testimony is taken pursuant to

a subpoena, the Director shall determine

whether the testimony shall be recorded

and the means by which the testimony

is recorded.

(q) A witness whose testimony is

recorded may procure a copy of his

testimony by making a written request

for a copy and paying the appropriate

fees. However, the Director may deny

the request for good cause. Upon proper

identification, any witness or his

attorney has the right to inspect the

official transcript of the witness’ own

testimony.

(r) The Director may sequester any

person subpoenaed to furnish

documents or give testimony. Unless

permitted by the Director, neither a

witness nor his attorney shall be present

during the examination of any other

witnesses.

(s) A witness whose testimony is

taken may be accompanied, represented

and advised by his attorney as follows:

(1) Upon the initiative of the attorney

or witness, the attorney may advise his

client, in confidence, with respect to the

question asked his client, and if the

witness refuses to answer any question,

the witness or his attorney is required

to briefly state the legal grounds for

such refusal; and

(2) If the witness claims a privilege to

refuse to answer a question on the

grounds of self-incrimination, the

witness must assert the privilege

personally.

(t) The Director shall take all

necessary action to regulate the course

of testimony and to avoid delay and

prevent or restrain contemptuous or

obstructionist conduct or contemptuous

language. OHA may take actions as the

circumstances may warrant in regard to

any instances where any attorney

refuses to comply with directions or

provisions of this section.

§ 1003.9 General filing requirements.

(a) Purpose and scope. The provisions

of this section shall apply to all

documents required or permitted to be

filed with the OHA. One copy of each

document must be filed with the

original, except as provided in

paragraph (f) of this section. A telefax

filing of a document will be accepted

only if immediately followed by the

filing by mail or hand-delivery of the

original document.

(b) Signing. Any document that is

required to be signed, shall be signed by

the person filing the document. Any

document filed by a duly authorized

representative shall contain a statement

by such person certifying that he is a

duly authorized representative. (A false

certification is unlawful under the

provisions of 18 U.S.C. 1001.) The

signature by the person or duly

authorized representative constitutes a

certificate by the signer that the signer

has read the document and that to the

best of the signer’s knowledge,

information and belief formed after

reasonable inquiry, the document is

well grounded in fact, warranted under

existing law, and submitted in good

faith and not for any improper purpose

such as to harass or to cause

unnecessary delay. If a document is

signed in violation of this section, OHA

may impose the sanctions specified in

section 1003.3 and other sanctions

determined to be appropriate.

(c) Labeling. An application, petition,

or other request for action by the OHA

should be clearly labeled according to

the nature of the action involved both

on the document and on the outside of

the envelope in which the document is

transmitted.

(d) Obligation to supply information.

A person who files an application,

petition, appeal or other request for

action is under a continuing obligation

during the proceeding to provide the

OHA 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, appeal or request for action

that is subsequently filed by that person

with any DOE office.

(e) The same or related matters. A

person who files an application,

petition, appeal or other request for

action by the OHA shall state whether,

to the best knowledge of that person, the

same or related issue, act or transaction

has been or presently is being

considered or investigated by any other

DOE office, other federal agency,

department or instrumentality; or by a

state or municipal agency or court; or by

any law enforcement agency, including,

but not limited to, a consideration or

investigation in connection with any

proceeding described in this part. In

addition, the person shall state whether

contact has been made by the person or
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one acting on his behalf with any person

who is employed by the DOE with

regard to the same issue, act or

transaction or a related issue, act or

transaction arising out of the same

factual situation; the name of the person

contacted; whether the contact was

verbal or in writing; the nature and

substance of the contact; and the date or

dates of the contact.

(f) Request for confidential treatment.

(1) If any person filing a document with

the OHA 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. 552), is

information referred to in 18 U.S.C.

1905, or is otherwise exempt by law

from public disclosure, and if such

person requests the OHA not to disclose

such information, such person shall file

together with the document two copies

of the document from which has been

deleted the information for which such

person wishes to claim confidential

treatment. The person shall indicate in

the original document that it is

confidential or contains confidential

information and must file a statement

specifying the justification for nondisclosure of the information for which

confidential treatment is claimed. If the

person states that the information comes

within the exception codified at 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 the person

filing a document does not submit two

copies of the document with the

confidential information deleted, the

OHA may assume that there is no

objection to public disclosure of the

document in its entirety.

(2) The OHA retains the right to make

its own determination with regard to

any claim of confidentiality, under

criteria specified in 10 CFR 1004.11.

Notice of the decision by the OHA to

deny such claim, in whole or in part,

and an opportunity to respond shall be

given to a person claiming

confidentiality of information no less

than five days prior to its public

disclosure.

(g) Each application, petition or

request for OHA 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.

§ 1003.10 Effective date of orders.

Any order issued by the OHA under

this part is effective as against all

persons having actual or constructive

notice thereof upon issuance, in

accordance with its terms, unless and

until it is stayed, modified, suspended,

or rescinded. An order is deemed to be

issued on the date, as specified in the

order, on which it is signed by the

Director of the OHA or his designee,

unless the order provides otherwise.

§ 1003.11 Address for filing documents.

All applications, requests, petitions,

appeals, written communications and

other documents to be submitted to or

filed with the OHA, as provided in this

part or otherwise, shall be addressed to

the Office of Hearings and Appeals, U.S.

Department of Energy, 1000

Independence Avenue, S.W.,

Washington, D.C. 20585. The OHA has

facilities for the receipt of transmissions

via FAX, at FAX Number (202) 586–

4972.

§ 1003.12 Ratification of prior directives,

orders and actions.

All orders and other directives issued,

all proceedings initiated, and all other

actions taken in accordance with 10

CFR part 205 prior to the effective date

of this part, are hereby confirmed and

ratified, and shall remain in full force

and effect as if issued under this part,

unless or until they are altered,

amended, modified or rescinded in

accordance with the provisions of this

part.

§ 1003.13 Public reference room.

There shall be maintained at the

OHA, 1000 Independence Avenue,

S.W., Washington, D.C., a public

reference room in which shall be made

available for public inspection and

copying, during business hours from

1:00 p.m. to 5:00 p.m.:

(a) A list of all persons who have

applied for an exception, or filed an

appeal or petition, and a digest of each

application;

(b) Each Decision and Order, with

confidential information deleted, issued

in response to an application for an

exception, petition or other request, or

at the conclusion of an appeal; and

(c) Any other information in the

possession of OHA which is required by

statute to be made available for public

inspection and copying, and any other

information that the OHA determines

should be made available to the public.

§ 1003.14 Notice of proceedings.

At regular intervals, the OHA shall

publish in the Federal Register a digest

of the applications, appeals, petitions

and other requests filed, and a summary

of the Decisions and Orders issued by

the OHA, pursuant to proceedings

conducted under this part.

Subpart B—Exceptions

§ 1003.20 Purpose and scope.

(a) This subpart establishes the

procedures for applying for an

exception, as provided for in section

504 (42 U.S.C. 7194) of the Department

of Energy Organization Act (42 U.S.C.

7101 et seq.), from a rule, regulation or

DOE action having the effect of a rule as

defined by 5 U.S.C. 551(4), based on an

assertion of serious hardship, gross

inequity or unfair distribution of

burdens, and for the consideration of

such application by the OHA. The

procedures contained in this subpart

may be incorporated by reference in

another DOE rule or regulation which

invokes the adjudicatory authority of

the Office of Hearings and Appeals. The

procedures may also be made applicable

to proceedings undertaken at the

direction of an appropriate DOE official

if incorporated by reference in the

delegation.

(b) The filing of an application for an

exception shall not constitute grounds

for noncompliance with the

requirements from which an exception

is sought, unless a stay has been issued

in accordance with subpart D of this

part.

§ 1003.21 What to file.

A person seeking relief under this

subpart shall file an ‘‘Application for

Exception,’’ which should be clearly

labeled as such both on the application

and on the outside of the envelope in

which the application 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.

§ 1003.22 Where to file.

All applications for exception shall be

filed with the OHA at the address

provided in § 1003.11.

§ 1003.23 Notice.

(a) The applicant shall send by United

States mail a copy of the application

and any subsequent amendments or

other documents relating to the

application, 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 applicant as a

person who would be aggrieved by the

OHA action sought. The copy of the

application shall be accompanied by a

statement that the person may submit

comments regarding the application

within 10 days. The application filed

with the OHA shall include certification

to the OHA that the applicant has

complied with the requirements of this
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paragraph and shall include the names

and addresses of each person to whom

a copy of the application was sent.

(b) Notwithstanding the provision of

paragraph (a) of this section, if an

applicant determines that compliance

with paragraph (a) of this section would

be impracticable, the applicant 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 application a

description of the persons or class or

classes of persons to whom notice was

sent. The OHA may require the

applicant to provide additional or

alternative notice, 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 identified 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 application will

be accepted if filed within 10 days of

service of such notice.

(d) Any person submitting written

comments to the OHA with respect to

an application filed under this 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

applicant. 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.

§ 1003.24 Contents.

(a) The application shall contain a full

and complete statement of all relevant

facts pertaining to the circumstances,

act or transaction that is the subject of

the application and to the OHA action

sought. Such facts shall include 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; a description of the acts or

transactions that would be affected by

the requested OHA action; and a full

discussion of the pertinent provisions

and relevant facts contained in the

documents submitted with the

application. Copies of all relevant

contracts, agreements, leases,

instruments, and other documents shall

be submitted with the application.

(b) The applicant shall state whether

he requests or intends to request that

there be a conference or hearing

regarding the application. Any request

not made at the time the application is

filed shall be made as soon thereafter as

possible. The request and the OHA

determination on the request shall be

made in accordance with subpart F of

this part.

(c) The application shall include a

discussion of all relevant authorities,

including, but not limited to, DOE rules,

regulations, and decisions on appeals

and exceptions relied upon to support

the particular action sought therein.

(d) The application shall specify the

exact nature and extent of the relief

requested.

§ 1003.25 OHA evaluation.

(a) (1) OHA may initiate an

investigation of any statement in an

application 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 application provided

that the applicant is afforded an

opportunity to respond to all third

person submissions. In evaluating an

application, the OHA may consider any

other source of information. The OHA

on its own initiative may convene a

hearing or conference, if, in its

discretion, it considers that such

hearing or conference will advance its

evaluation of the application. The OHA

may issue appropriate orders as

warranted in the proceeding.

(2) If the OHA determines that there

is insufficient information upon which

to base a decision and if upon request

additional information is not submitted

by the applicant, the OHA may dismiss

the application without prejudice. If the

failure to supply additional information

is repeated or willful, the OHA may

dismiss the application with prejudice.

If the applicant fails to provide the

notice required by § 1003.23, the OHA

may dismiss the application without

prejudice.

(b)(1) The OHA shall consider an

application for an exception only when

it determines that a more appropriate

proceeding is not provided by DOE

regulations.

(2) An application for an exception

may be granted to alleviate or prevent

serious hardship, gross inequity or

unfair distribution of burdens.

(3) An application for an exception

shall be decided in a manner that is, to

the extent possible, consistent with the

disposition of previous applications for

exception.

§ 1003.26 Decision and Order.

(a) Upon consideration of the

application and other relevant

information received or obtained during

the proceeding, the OHA shall issue an

order granting or denying the

application, in whole or in part.

(b) The Decision and Order shall

include a written statement setting forth

the relevant facts and the legal basis of

the order. The Decision and Order shall

provide that any person aggrieved

thereby may file an appeal in

accordance with § 1003.27.

(c) The OHA shall serve a copy of the

Decision and Order upon the applicant,

any other person who participated in

the proceeding, and upon any other

person readily identifiable by the OHA

as one who is aggrieved by such

Decision and Order.

§ 1003.27 Appeal of exception order.

(a) Except as provided in paragraph

(b) of this section, any person aggrieved

by an order issued by the OHA under

this subpart may file an appeal with the

OHA in accordance with subpart C of

this part. Any appeal filed under this

paragraph must be filed within 30 days

of service, or constructive service under

§ 1003.14, of the order from which the

appeal is taken.

(b) Any person aggrieved or adversely

affected by the denial of a request for

exception relief filed pursuant to § 504

of the Department of Energy

Organization Act (42 U.S.C. 7194) may

appeal to the Federal Energy Regulatory

Commission, in accordance with the

Commission’s regulations.

Subpart C—Appeals

§ 1003.30 Purpose and scope.

This subpart establishes the

procedures for the filing of an

administrative appeal of a DOE order

and for the consideration of the appeal

by the Office of Hearings and Appeals.

Unless a program rule or regulation or

a DOE delegation of authority provides

otherwise, a person aggrieved by a DOE

order appealable under this subpart has

not exhausted his or her administrative

remedies until an appeal has been filed

under this subpart and an order granting

or denying the appeal has been issued.

A person filing an appeal must also file

an ‘‘Application for Stay’’ under subpart

D of this part if the grant of a stay is

necessary under Section 10(c) of the

Administrative Procedure Act (5 U.S.C.

704) to preclude judicial review

pending final action on the appeal.

§ 1003.31 Who may file.

Any person may file an appeal under

this subpart who is so authorized by

§ 1003.27, a program rule or regulation,

or a DOE delegation of authority.
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§ 1003.32 What to file.

A person filing under this subpart

shall file an ‘‘Appeal of Order’’ which

should be clearly labeled as such both

on the appeal and on the outside of the

envelope in which the appeal 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.

§ 1003.33 Where to file.

The appeal shall be filed with the

OHA at the address provided in

§ 1003.11.

§ 1003.34 Notice.

(a) The appellant shall send by United

States mail a copy of the appeal and any

subsequent amendments or other

documents relating to the appeal, 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 appellant as a person who would

be aggrieved by the OHA action sought,

including those who participated in the

process that led to the issuance of the

order from which the appeal has been

taken. The copy of the appeal shall be

accompanied by a statement that the

person may submit comments regarding

the appeal to the OHA within 10 days.

The appeal filed with the OHA shall

include certification to the OHA that the

appellant has complied with the

requirements of this paragraph and shall

include the names and addresses of

each person to whom a copy of the

appeal was sent.

(b) Notwithstanding the provisions of

paragraph (a) of this section, if any

appellant determines that compliance

with paragraph (a) of this section would

be impracticable, the appellant shall:

(1) Comply with the requirements of

paragraph (a) of this section with regard

to those persons whom it is reasonable

and possible to notify; and

(2) Include with the appeal a

description of the persons or class or

classes of persons to whom notice was

not sent. The OHA may require the

appellant to provide additional or

alternative notice, 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 appeal will be

accepted if filed within 10 days of the

service of that notice.

(d) Any person submitting written

comments to the OHA with respect to

an appeal filed under this 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 appellant. 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.

§ 1003.35 Contents.

(a) The appeal shall contain a concise

statement of grounds upon which it is

brought and a description of the relief

sought. It shall include a discussion of

all relevant authorities, including, but

not limited to, DOE rules, regulations,

and decisions on appeals and

exceptions relied upon to support the

appeal. If the appeal includes a request

for relief based on significantly changed

circumstances, there shall be a complete

description of the events, acts, or

transactions that comprise the

significantly changed circumstances,

and the appellant shall state why, if the

significantly changed circumstance is

new or newly discovered facts, such

facts were not or could not have been

presented during the process that led to

the issuance of the order from which the

appeal has been taken. For purposes of

this subpart, the term ‘‘significantly

changed circumstances’’ shall mean—

(1) The discovery of material facts that

were not known or could not have been

known at the time of the process that

led to the issuance of the order from

which the appeal has been taken;

(2) The discovery of a law, rule,

regulation, order or decision on an

appeal or any exception that was in

effect at the time of the process that led

to the issuance of the order from which

the appeal has been taken, and which,

if such had been made known to DOE,

would have been relevant and would

have substantially altered the outcome;

or

(3) A substantial change in the facts

or circumstances upon which an

outstanding and continuing order

affecting the appellant was issued,

which change has occurred during the

interval between issuance of the order

and the date of the appeal and was

caused by forces or circumstances

beyond the control of the appellant.

(b) A copy of the order that is the

subject of the appeal shall be submitted

with the appeal.

(c) The appellant shall state whether

he requests or intends to request that

there be a conference or hearing

regarding the appeal. Any request not

made at the time the appeal is filed shall

be made as soon thereafter as possible.

The request and the OHA determination

on the request shall be made in

accordance with subpart F of this part.

§ 1003.36 OHA evaluation.

(a) (1) The OHA may initiate an

investigation of any statement in an

appeal 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 appeal provided that the

appellant is afforded an opportunity to

respond to all third person submissions.

In evaluating an appeal, the OHA may

consider any other source of

information. The OHA on its own

initiative may convene a conference or

hearing if, in its discretion, it considers

that such conference or hearing will

advance its evaluation of the appeal.

(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 appeal with leave to refile within a

specified time. If the failure to supply

additional information is repeated or

willful, the OHA may dismiss the

appeal with prejudice. If the appellant

fails to provide the notice required by

§ 1003.34, the OHA may dismiss the

appeal without prejudice.

(b) The OHA may issue an order

summarily denying the appeal if—

(1) It is not filed in a timely manner,

unless good cause is shown; or

(2) It is defective on its face for failure

to state, and to present facts and legal

argument in support thereof, that the

DOE action was erroneous in fact or in

law, or that it was arbitrary or

capricious.

(c) The OHA may deny any appeal if

the appellant does not establish that—

(1) The appeal was filed by a person

aggrieved by a DOE action;

(2) The DOE’s action was erroneous in

fact or in law; or

(3) The DOE’s action was arbitrary or

capricious.

§ 1003.37 Decision and Order.

(a) Upon consideration of the appeal

and other relevant information received

or obtained during the proceeding, the

OHA shall enter an appropriate order,

which may include the modification of

the order that is the subject of the

appeal.

(b) The Decision and Order shall

include a written statement setting forth

the relevant facts and the legal basis of

the Decision and Order. The Decision

and Order shall state that it is a final
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order of the DOE of which the appellant

may seek judicial review.

(c) The OHA shall serve a copy of the

Decision and Order upon the appellant,

any other person who participated in

the proceeding, and upon any other

person readily identifiable by the OHA

as one who is aggrieved by such

Decision and Order.

Subpart D—Stays

§ 1003.40 Purpose and scope.

(a) This subpart establishes the

procedures for applying for a stay. It

also specifies the nature of the relief

which may be effectuated through the

approval of a stay.

(b) An application for a stay will be

considered if it is incident to a

submission over which OHA has

jurisdiction. An application for stay may

also be considered if the stay is

requested pending judicial review of an

order issued by the OHA.

(c) All applicable DOE rules,

regulations, orders, and generally

applicable requirements shall be

complied with unless and until an

application for a stay is granted.

§ 1003.41 What to file.

A person filing under this subpart

shall file an ‘‘Application for Stay’’

which should be clearly labeled as such

both on the application and on the

outside of the envelope in which the

application is transmitted. The

application 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.

§ 1003.42 Where to file.

An Application for Stay shall be filed

with the OHA at the address provided

in § 1003.11.

§ 1003.43 Notice.

(a) An applicant for stay shall notify

each person readily identifiable as one

who will be directly aggrieved by the

OHA action sought that it has filed an

Application for Stay. The applicant

shall serve the application on each

identified person and shall notify each

such person that the OHA will receive

and endeavor to consider, subject to

time constraints imposed by the urgency

of the proceeding, written comments on

the application that are submitted

immediately.

(b) Any person submitting written

comments to the OHA with respect to

an application filed under this 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

applicant. 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.

(c) The OHA shall require the

applicant to take reasonable measures

depending on the circumstances and

urgency of the case to notify each

person readily identified as one that

would be directly aggrieved by the OHA

action sought of the date, time and place

of any hearing or other proceedings in

the matter. However, if the Director of

the OHA concludes that the

circumstances presented by the

applicant justify immediate action, the

OHA may issue a Decision on the

Application for Stay prior to receipt of

written comments or the oral

presentation of views by adversely

affected parties.

§ 1003.44 Contents.

(a) An Application for Stay shall

contain a full and complete statement of

all relevant facts pertaining to the act or

transaction that is the subject of the

application and to the OHA action

sought. Such facts shall include, but not

be limited to, all information that relates

to satisfaction of the criteria in

§ 1003.45(b).

(b) The application shall include a

description of the proceeding incident

to which the stay is being sought. This

description shall contain a discussion of

all DOE actions relevant to the

proceeding.

(c) The applicant shall state whether

he requests that a conference or hearing

be convened regarding the application,

as provided in subpart F of this part.

§ 1003.45 OHA evaluation.

(a) (1) The OHA may initiate an

investigation of any statement in an

application and utilize in its evaluation

any relevant facts obtained by such

investigation. The OHA may order the

submission of additional information,

and may solicit and accept submissions

from third persons relevant to an

application provided that the applicant

is afforded an opportunity to respond to

all third person submissions. In

evaluating an application, the OHA may

also consider any other source of

information, and may conduct hearings

or conferences either in response to

requests by parties in the proceeding or

on its own initiative.

(2) If the OHA determines that there

is insufficient information upon which

to base a decision and if upon request

additional information is not submitted

by the applicant, the OHA may dismiss

the application without prejudice. If the

failure to supply additional information

is repeated or willful, the OHA may

dismiss the application with prejudice.

(3) The OHA shall process

applications for stay as expeditiously as

possible. When administratively

feasible, the OHA shall grant or deny an

Application for Stay within 10 business

days after receipt of the application.

(4) Notwithstanding any other

provision of the DOE regulations, the

OHA may make a decision on any

Application for Stay prior to the receipt

of written comments.

(b) The criteria to be considered and

weighed by the OHA in determining

whether a stay should be granted are:

(1) Whether a showing has been made

that an irreparable injury will result in

the event that the stay is denied;

(2) Whether a showing has been made

that a denial of the stay will result in a

more immediate hardship or inequity to

the applicant than a grant of the stay

would cause to other persons affected

by the proceeding;

(3) Whether a showing has been made

that it would be desirable for public

policy reasons to grant immediate relief

pending a decision by OHA on the

merits;

(4) Whether a showing has been made

that it is impossible for the applicant to

fulfill the requirements of an

outstanding order or regulatory

provision; and

(5) Whether a showing has been made

that there is a strong likelihood of

success on the merits.

§ 1003.46 Decision and Order.

(a) In reaching a decision with respect

to an Application for Stay, the OHA

shall consider all relevant information

in the record. An Application for Stay

may be decided by the issuance of an

order either during the course of a

hearing or conference in which an

official transcript is maintained or in a

separate written Decision and Order.

Any such order shall include a

statement of the relevant facts and the

legal basis of the decision. The approval

or denial of a stay is not an order of the

OHA that is subject to administrative or

judicial review.

(b) In its discretion and upon a

determination that it would be desirable

to do so in order to further the

objectives stated in the regulations or in

the statutes the DOE is responsible for

administering, the OHA may order a

stay on its own initiative.

Subpart E—Modification or Rescission

§ 1003.50 Purpose and scope.

This subpart establishes the

procedures for the filing of an
Federal Register / Vol. 60, No. 54 / Tuesday, March 21, 1995 / Rules and Regulations 15013

application for modification or

rescission of a DOE order. An

application for modification or

rescission is a summary proceeding that

will be initiated only if the criteria

described in § 1003.55(b) are satisfied.

§ 1003.51 What to file.

A person filing under this subpart

shall file an ‘‘Application for

Modification (or Rescission),’’ which

should be clearly labeled as such both

on the application and on the outside of

the envelope in which the application 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.

§ 1003.52 Where to file.

The application shall be filed with the

OHA at the address provided in

§ 1003.11.

§ 1003.53 Notice.

(a) The applicant shall send by United

States mail a copy of the application

and any subsequent amendments or

other documents relating to the

application, from which confidential

information has been deleted in

accordance with § 1003.9(f), to each

person who is reasonably ascertainable

by the applicant as a person who would

be aggrieved by the OHA action sought,

including persons who participated in

the process that led to the issuance of

the order for which the modification or

rescission is sought. The copy of the

application shall be accompanied by a

statement that the person may submit

comments regarding the application to

the OHA within 10 days. The

application filed with the OHA shall

include certification to the OHA that the

applicant has complied with the

requirements of this paragraph and shall

include the names and addresses of all

persons to whom a copy of the

application was sent.

(b) If an applicant determines that

compliance with paragraph (a) of this

section would be impracticable, the

applicant shall:

(1) Comply with the requirements of

paragraph (a) of this section with regard

to those persons whom it is reasonable

and possible to notify; and

(2) Include with the application a

description of the persons or class or

classes of persons to whom notice was

not sent. The OHA may require the

applicant to provide additional or

alternative notice, 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 application will

be accepted if filed within 10 days of

service of that notice.

(d) Any person submitting written

comments to the OHA with respect to

an application filed under this 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

applicant. The person shall certify to the

OHA that he has complied with the

requirement 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.

§ 1003.54 Contents.

(a) The application shall contain a full

and complete statement of all relevant

facts pertaining to the circumstances,

act or transaction that is the subject of

the application and to the OHA action

sought. Such facts shall include 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, a description of the acts or

transactions that would be affected by

the requested action, and a full

description of the pertinent provisions

and relevant facts contained in any

relevant documents. Copies of all

contracts, agreements, leases,

instruments, and other documents

relevant to the application shall be

submitted to the OHA upon its request.

A copy of the order of which

modification or rescission is sought

shall be included with the application.

(b) The applicant shall state whether

he requests or intends to request that

there be a conference regarding the

application. Any request not made at

the time the application is filed shall be

made as soon thereafter as possible. The

request and the OHA determination on

the request shall be made in accordance

with subpart F of this part.

(c) The applicant shall fully describe

the events, acts, or transactions that

comprise the significantly changed

circumstances, as defined in

§ 1003.55(b)(2), upon which the

application is based. The applicant shall

state why, if the significantly changed

circumstance is new or newly

discovered facts, such facts were not or

could not have been presented during

the process that led to the issuance of

the order for which modification or

rescission is sought.

(d) The application shall include a

discussion of all relevant authorities,

including, but not limited to, DOE rules,

regulations, and decisions on appeal

and exceptions relied upon to support

the action sought therein.

§ 1003.55 OHA evaluation.

(a)(1) The OHA may initiate an

investigation of any statement in an

application 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 application for

modification or rescission provided that

the applicant is afforded an opportunity

to respond to all third person

submissions. In evaluating an

application for modification or

rescission, the OHA may convene a

conference, on its own initiative, if, in

its discretion, it considers that such

conference will advance its evaluation

of the application.

(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 application without prejudice. If the

failure to supply additional information

is repeated or willful, the OHA may

dismiss the application with prejudice.

If the applicant fails to provide the

notice required by § 1003.53, the OHA

may dismiss the application without

prejudice.

(b)(1) An application for modification

or rescission of an order shall be

processed only if—

(i) The application demonstrates that

it is based on significantly changed

circumstances; and

(ii) The period within which a person

may file an appeal has lapsed or, if an

appeal has been filed, a final order has

been issued.

(2) For purposes of this subpart, the

term ‘‘significantly changed

circumstances’’ shall mean—

(i) The discovery of material facts that

were not known or could not have been

known at the time of the proceeding and

action upon which the application is

based;

(ii) The discovery of a law, rule,

regulation, order or decision on appeal

or exception that was in effect at the

time of the proceeding upon which the

application is based and which, if such

had been made known to the OHA,

would have been relevant to the

proceeding and would have

substantially altered the outcome; or

(iii) There has been a substantial

change in the facts or circumstances

upon which an outstanding and

continuing order of the OHA affecting
15014 Federal Register / Vol. 60, No. 54 / Tuesday, March 21, 1995 / Rules and Regulations

the applicant was issued, which change

has occurred during the interval

between issuance of such order and the

date of the application and was caused

by forces or circumstances beyond the

control of the applicant.

§ 1003.56 Decision and Order.

(a) Upon consideration of the

application and other relevant

information received or obtained during

the proceeding, the OHA shall issue a

Decision and Order granting or denying

the application.

(b) The Decision and Order shall

include a written statement setting forth

the relevant facts and the legal basis of

the Decision and Order. When

appropriate, the Decision and Order

shall state that it is a final order of

which the applicant may seek judicial

review.

(c) The OHA shall serve a copy of the

Decision and Order upon the applicant,

any other person who participated in

the proceeding and upon any other

person readily identifiable by the OHA

as one who is aggrieved by such

Decision and Order.

Subpart F—Conferences and Hearings

§ 1003.60 Purpose and scope.

This subpart establishes the

procedures for requesting and

conducting an OHA conference or

hearing. Such proceedings shall be

convened in the discretion of the OHA,

consistent with OHA requirements.

§ 1003.61 Conferences.

(a) The OHA in its discretion may

direct that a conference be convened, on

its own initiative or upon request by a

person, when it appears that such

conference will materially advance the

proceeding. The determination as to

who may attend a conference convened

under this subpart shall be in the

discretion of the OHA, but a conference

will usually not be open to the public.

(b) A conference may be requested in

connection with any proceeding of the

OHA by any person who would be

aggrieved by that proceeding. The

request may be made in writing or

verbally, but must include a specific

showing as to why such conference will

materially advance the proceeding. The

request shall be addressed to the OHA,

as provided in § 1003.11.

(c) A conference may only be

convened after actual notice of the time,

place and nature of the conference is

provided to the person who requested

the conference.

(d) When a conference is convened in

accordance with this section, each

person may present views as to the

issues involved. Documentary evidence

may be presented at the conference, but

will be treated as if submitted in the

regular course of the proceeding. A

transcript of the conference will not

usually be prepared. However, the OHA

in its discretion may have a verbatim

transcript prepared.

(e) Because a conference is solely for

the exchange of views incident to a

proceeding, there will be no formal

reports or findings unless the OHA in its

discretion determines that such would

be advisable.

§ 1003.62 Hearings.

(a) The OHA in its discretion may

direct that a hearing be convened on its

own initiative or upon request by a

person, when it appears that such

hearing will materially advance the

proceeding. All hearings convened

pursuant to this subpart shall be

conducted by the Director of the OHA

or his designee. The determination as to

who may attend a hearing convened

under this subpart shall be in the

discretion of OHA. Hearings will be

open to the public, but may be closed

at the discretion of OHA if the reason is

put in the record.

(b) A hearing may be requested by an

applicant, appellant, or any other

person who would be aggrieved by the

OHA action sought. The request shall be

in writing and shall include a specific

showing as to why such hearing will

materially advance the proceeding. The

request shall be addressed to the OHA

at the address provided in § 1003.11.

(c) A hearing may be convened only

after actual notice of the time, place,

and nature of the hearing is provided

both to the applicant or appellant and

to any other person readily identifiable

by the OHA as one who would be

aggrieved by the OHA action involved.

The notice shall include, as appropriate:

(1) A statement that such person may

participate in the hearing; or

(2) A statement that such person may

request a separate conference or hearing

regarding the application or appeal.

(d) When a hearing is convened in

accordance with this section, each

person may present views as to the issue

or issues involved. Documentary

evidence may be presented at the

hearing, but will be treated as if

submitted in the regular course of the

proceeding. A transcript of the hearing

will be prepared.

(e) If material factual issues remain in

dispute after an application or appeal

has been filed, the Director of the OHA

or his designee may issue an order

convening an evidentiary hearing in

which witnesses shall testify under

oath, subject to cross-examination, for

the record and in the presence of a

Presiding Officer. A Motion for

Evidentiary Hearing should specify the

type of witness or witnesses whose

testimony is sought, the scope of

questioning that is anticipated, and the

relevance of the questioning to the

proceeding. A motion may be

summarily denied for lack of sufficient

specificity, because an evidentiary

hearing would place an undue burden

on another person or the DOE, or

because an evidentiary hearing would

cause undue delay.

(f) A Motion for Evidentiary Hearing

must be served on any person from

whom information is sought and on

parties to the underlying administrative

action. Any person who wishes to

respond to a Motion for Evidentiary

Hearing must do so within ten days of

service.

(g) In reaching a decision with respect

to a request for a hearing or motion filed

under this subpart, the OHA shall

consider all relevant information in the

record. If an order is issued granting a

hearing or evidentiary hearing, in whole

or in part, the order shall specify the

parties, any limitations on the

participation of a party, and the issues

to be considered. An order of the OHA

issued under this section is an

interlocutory order which is subject to

further administrative review or appeal

only upon issuance of a final Decision

and Order in the proceeding concerned.

(h) At any evidentiary hearing, the

parties shall have the opportunity to

present material evidence that directly

relates to a particular issue set forth for

hearing. The Presiding Officer may

administer oaths or affirmations, rule on

objections to the presentation of

evidence, receive relevant material,

require the advance submission of

documents offered as evidence, dispose

of procedural requests, determine the

format of the hearing, modify any order

granting a Motion for Evidentiary

Hearing, direct that written motions,

documents or briefs be filed with

respect to issues raised during the

course of the hearing, ask questions of

witnesses, issue subpoenas, direct that

documentary evidence be served upon

other parties (under protective order if

such evidence is deemed confidential)

and otherwise regulate the conduct of

the hearing.

Subpart G—Private Grievances and

Redress

§ 1003.70 Purpose and scope.

The OHA shall receive and consider

petitions that seek special redress relief

or other extraordinary assistance as

provided for in the Federal Energy
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.