Office of Hearings and Appeals Procedural Regulations

SUMMARY: The Department of Energy (DOE) proposes to amend 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 proposed rules have been organized

into a new part 1003 within chapter X of title 10 of the Code of

Federal Regulations. They streamline and distill the procedures

governing the conduct of proceedings before the OHA and update

pertinent filing information. They will be utilized by OHA in cases

that do not involve the former Federal petroleum price and allocation

control regulations.

DATES: Comments may be submitted by September 6, 1994.

ADDRESSES: Seven copies of written comments should be mailed to: Marcia

B. Carlson, Chief, Docket and Publications Branch, Office of Hearings

and Appeals, U.S. Department of Energy, 1000 Independence Avenue SW.,

Washington, DC 20585.

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.K[email protected].

SUPPLEMENTARY INFORMATION:

I. Introduction and Proposal

II. Procedural Requirements

III. Opportunity For Public Comment

I. Introduction and Proposal

The Office of Hearings and Appeals (OHA) is a quasi-judicial body

reporting to the Secretary of Energy. It is generally responsible for

conducting 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 transaction appeals boards in DOE, which are

components of the Office of Hearings and Appeals, procedural

regulations governing OHA practice generally appear 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 are designed to

apply to matters involving the former oil price and allocation control

regulations which were in effect during the period 1973 through 1981.

Because those oil-related proceedings are winding down, and the OHA is

conducting a variety of other informal adjudications for the

Department, it has become apparent that the OHA procedural regulations

should appear in chapter X of title 10, which contains the general

provisions of DOE regulations. The rules will be organized into a new

part 1003 within chapter X. At the same time, procedures governing the

conduct of proceedings before the OHA have been streamlined, and

pertinent filing information has been updated.

Apart from general filing procedures, the regulations proposed

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 DOE orders, regulations and

rulings;

(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 effective.

First, the procedures outlined in these rules become effective 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 states that any

person receiving an order may file an appeal with the Office of

Hearings and Appeals utilizing that office's appellate rules. See 10

CFR 430.27(n). Similarly, in implementing the Payments-Equal-to-Taxes

provisions of the Nuclear Waste Policy Act of 1982, the Department

stated that an entity may file an appeal with the Office of Hearings

and Appeals of a DOE payment equal to taxes (PETT) determination

utilizing 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).

Second, these rules may be effective where a statute requires 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 of the Department of Energy

Organization Act requires the Secretary to provide for the making of

adjustments to any rule, regulation or order issued under four

statutes--the Emergency Petroleum Allocation Act of 1973 (since

expired), the Federal Energy Administration Act, the Energy Supply and

Environmental Coordination Act of 1974, and the Energy Policy and

Conservation Act--as may be necessary to prevent serious financial

hardship, inequity, or unfair distribution of burdens. The Secretary

has delegated that responsibility to the Office of Hearings and

Appeals, which promulgated rules by which members of the public could

seek an exception to rules, regulations or orders issued under the four

named statutes.

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 in 10 CFR part 708.

Similarly, the Department has proposed procedural rules governing OHA

proceedings for determining eligibility for access to classified matter

as a part of 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, explained below, the

proposed rules 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. Part 205

will continue to be used only to adjudicate matters which relate

specifically to the federal oil regulations. The new part 1003,

proposed today, shall be utilized for adjudicating all other matters

under OHA's jurisdiction. For instance, the DOE will modify

Sec. 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. The

DOE will also issue a conforming amendment to the interpretation and

procedures implementing the Payments-Equal-to-Taxes provisions of the

Nuclear Waste Policy Act of 1982, as amended, to change the reference

to the appellate procedures that are available. Future rulemakings

which invoke OHA's adjudicatory authority will refer to the rules

contained in part 1003 as the operative administrative process.

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 or an adjustment to a DOE

regulatory requirement, where such relief is authorized by the

pertinent regulations or underlying statute concerned. Similar to the

regulations appearing in 10 CFR part 205, subpart D, the proposed rules

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 proposed rules set forth in part 1003,

subpart B, present a simpler procedure than 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 proposed

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.

II. Procedural Requirements

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.

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 section 2(a) and

(b)(2), include eliminating drafting errors and needless ambiguity,

drafting regulations to minimize litigation, providing clear and

certain legal standards for affected legal conduct, and promoting

simplification and burden reduction. Agencies are also instructed to

make every reasonable effort that the rulemaking notice defines key

terms, specifies the effect on existing law, and describes any

administrative proceeding to be available prior to judicial review and

any provisions for the exhaustion of administrative remedies. DOE

certifies that these proposed rules meet the requirements of section

2(a) and (b)(2) of Executive Order 12778.

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.

Regulatory Flexibility Act Certification

These regulations were reviewed under the Regulatory Flexibility

Act, 5 U.S.C. 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, i.e., small

businesses, small government jurisdictions. The proposed regulatory

amendment updates and gives greater flexibility to previously existing

procedural regulations. DOE therefore certifies that the proposed rule

will not have a significant economic impact on a substantial number of

small entities, and the preparation of a regulatory flexibility

analysis is not warranted.

Paperwork Reduction Act

No additional information and recordkeeping requirements are

imposed by this rule (44 U.S.C. 3501 et seq.).

National Environmental Policy Act

The proposed rules 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.

III. Opportunity for Public Comment

Interested persons are invited to submit written views or arguments

regarding the proposed amendment set forth in this notice. Seven copies

of these comments should be submitted to Marcia B. Carlson, Chief,

Docket and Publications Branch, Office of Hearings and Appeals, at the

address shown in the beginning of this notice. The envelope and

document submitted should be identified with the designation ``Office

of Hearings and Appeals Procedural Regulations.'' Comments may also be

sent via electronic mail to an Office of Hearings and Appeals internet

mail address, which is: [email protected] All comments received on or

before the date specified in the beginning of this notice will be

carefully assessed and fully considered prior to publication of the

proposed amendment as a final rule. All comments will be available for

public inspection and copying in the Office of Hearings and Appeals

Public Reference Room, Room 1E-234, telephone number (202) 586-8001,

between 1:00 and 5:00 p.m., Monday through Friday.

Any person submitting information which that person believes to be

confidential and which may be exempt by law from public disclosure

should submit seven complete copies, as well as two copies from which

the information claimed to be confidential has been deleted. DOE

reserves the right to determine confidential status of the information

or data and to treat it according to its determination. This procedure

is set forth in 10 CFR 205.9, which will be superseded by the proposed

1004.10.

The Department has concluded that this proposed rule does not

involve a substantial issue of fact or law and that the proposed rule

is unlikely to have a substantial impact on the Nation's economy or

large numbers of individuals or businesses. Therefore, pursuant to

section 501(c) (42 U.S.C. 7191(c)) of the DOE Organization Act (Pub. L.

95-91; 42 U.S.C. 7101 et seq.), the Department does not plan to hold a

public hearing on this proposed rule.

List of Subjects in 10 CFR Part 1003

Administrative practice and procedure.

Issued in Washington, DC, on June 24, 1994.

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 proposed to be amended by adding a new part 1003 to read as

follows:

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 order, 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--Exception

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.

Subpart C--Appeal

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--Stay

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

Sec. 1003.1 Purpose and scope.

This part establishes the procedures to be utilized and identifies

the sanctions that are available in 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. The procedures contained in this part may generally be

incorporated by reference in proceedings established by rule,

regulation or by specific designation, under statutory authority of the

Department of Energy, which invoke the adjudicatory authority of the

Office of Hearings and Appeals. e.g., 10 CFR part 430 (DOE Energy

Conservation Program for Consumer Products). 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).

Sec. 1003.2 Definitions.

(a) As used in this part:

Action means an order, interpretation, ruling issued, or a

rulemaking undertaken by the DOE.

Aggrieved, for purposes of administrative proceedings, describes

and means a person who is adversely affected by an action of the DOE.

Conference means an informal meeting, incident to any proceeding,

between the Office of Hearings and Appeals and any person aggrieved by

that proceeding.

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 (Pub. L. 95-91, 42 U.S.C. 7254).

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 that proceeding. Such appearance may consist of the

submission of a written document, or of a personal appearance, verbal

communication, or any other participation in the proceeding.

Exception means the waiver or modification of the requirements of a

regulation, ruling or generally applicable requirement under a specific

set of facts.

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 a written directive or verbal communication of a

written directive, if promptly confirmed in writing, issued by the DOE.

For purposes of this definition a written directive shall include

telegrams, telefax, telecopies and similar transcriptions. 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 section

1003.8(a).

(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.

Sec. 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. 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.

Sec. 1003.4 Filing of documents.

(a) Any document filed with the OHA must be addressed as required

by Sec. 1003.11, and should conform to the requirements contained in

Sec. 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, SW., Washington,

DC, on business days between the hours of 2 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.

Sec. 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

neither a Saturday, Sunday, nor a Federal legal holiday.

(2) Saturdays, Sundays or intervening 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.

Sec. 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.

Sec. 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 prima facie evidence of service.

Sec. 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 OHA regulations, 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

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 the document 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 the document 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

registered or certified mail; or

(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.

(3) 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.

(o) 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 OHA official,

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.

Sec. 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 Sec. 1003.9(f). 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 Sec. 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 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 non-

disclosure 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.

Sec. 1003.10 Effective date of orders.

Any order issued by the OHA under this title 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.

Sec. 1003.11 Address for filing documents.

(a) 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 as

follows: Office of Hearings and Appeals, U.S. Department of Energy,

1000 Independence Avenue, SW., Washington, DC 20585.

(b) The OHA has facilities for the receipt of transmissions via

FAX, at FAX Number (202) 586-4972.

Sec. 1003.12 Ratification of prior directives, orders and actions.

All orders, or 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.

Sec. 1003.13 Public reference room.

There shall be maintained at the OHA, 1000 Independence Avenue,

SW., Washington, DC, a public reference room in which shall be made

available for public inspection and copying, during business hours from

1 p.m. to 5 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 statement setting forth the relevant facts

and legal basis of an 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;

(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.

Sec. 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--Exception

Sec. 1003.20 Purpose and scope.

(a) This subpart establishes the procedures for applying for an

exception, as provided for in 42 U.S.C. 7194, from a regulation, ruling

or generally applicable requirement based on an assertion of serious

hardship, gross inequity or unfair distribution of burdens and for the

consideration of such application by the OHA.

(b) The filing of an application for an exception shall not

constitute grounds for non-compliance with the requirements of the

regulation or generally applicable requirement from which an exception

is sought, unless a stay has been issued in accordance with subpart D

of this part.

Sec. 1003.21 What to file.

A person filing 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 Sec. 1003.9 shall be complied with in addition

to the requirements stated in this subpart.

Sec. 1003.22 Where to file.

All applications for exception shall be filed with the OHA at the

address provided in Sec. 1003.11.

Sec. 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 Sec. 1003.9(f), to each person who is

reasonably ascertainable by the applicant as a person who will 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 to the OHA office with which the application

was filed 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 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, 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

identified by the OHA as one who will 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 Sec. 1003.9(f), to the applicant. The person

shall certify to the OHA that compliance with the requirements of this

paragraph (d) has been met. The OHA may notify other persons

participating in the proceeding of such comments and provide an

opportunity for such persons to respond.

Sec. 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 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. When the application pertains to only one step of a larger

integrated transaction, the facts, circumstances, and other relevant

information pertaining to the entire transaction shall be submitted.

(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, to insure that the

conference or hearing is held when it will be most beneficial. The

request and the OHA's determination regarding it 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 rulings, regulations,

interpretations 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.

Sec. 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 Sec. 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.

Sec. 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 order shall include a written statement setting forth the

relevant facts and the legal basis of the order. The order shall

provide that any person aggrieved thereby may file an appeal in

accordance with Sec. 1003.27.

(c) The OHA shall serve a copy of the 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

order.

Sec. 1003.27 Appeal.

(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.

(b) Any person aggrieved or adversely affected by the denial of a

request for exception relief filed under section 504 of the DOE

Organization Act, Pub. L. 95-91, may appeal to the Federal Energy

Regulatory Commission, in accordance with the Commission's regulations.

(c) Any appeal filed under this section must be filed within 30

days of service of the order from which the appeal is taken. There has

not been an exhaustion of administrative remedies until a timely appeal

has been filed and the appellate proceeding is completed by the

issuance of an order granting or denying the appeal.

Subpart C--Appeal

Sec. 1003.30 Purpose and scope.

(a) This subpart establishes the procedures for the filing of an

administrative appeal of DOE actions other than a rule or regulation.

(b) Where DOE program regulations provide for an administrative

appeal, a person who has appeared before the DOE in connection with a

matter has not exhausted his administrative remedies until an appeal

has been filed under this subpart and an order granting or denying the

appeal has been issued.

Sec. 1003.31 Who may file.

Where DOE program regulations provide for an administrative appeal,

any person aggrieved by an order issued by the DOE may file an appeal

under this subpart.

Sec. 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

Sec. 1003.9 shall be complied with in addition to the requirements

stated in this subpart.

Sec. 1003.33 Where to file.

The appeal shall be filed with the OHA at the address provided in

Sec. 1003.11.

Sec. 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 Sec. 1003.9(f), to each person who is reasonably

ascertainable by the appellant as a person who will be aggrieved by the

OHA action sought, including those who participated in the prior

proceeding. 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, 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 will 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 Sec. 1003.9(f), to the appellant. The person

shall certify to the OHA that compliance with the requirements of this

paragraph (d) has been met. The OHA may notify other persons

participating in the proceeding of such comments and provide an

opportunity for such persons to respond.

Sec. 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 rulings, regulations, interpretations 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 prior proceeding. 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 prior proceeding;

(2) The discovery of a law, regulation, interpretation, ruling,

order or decision on an appeal or any exception that was in effect at

the time of the proceeding upon which the order is based and which, if

such had been made known to DOE, would have been relevant to the

proceeding 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, to insure that the conference or hearing is

held when it will be most beneficial. The request and the OHA's

determination regarding it shall be made in accordance with subpart F

of this part.

Sec. 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 amend 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 Sec. 1003.34, the OHA may dismiss the appeal without

prejudice.

(b)(1) The OHA may issue an order summarily denying the appeal if--

(i) It is not filed in a timely manner, unless good cause is shown;

or

(ii) 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.

(2) The OHA may deny any appeal if the appellant does not establish

that--

(i) The appeal was filed by a person aggrieved by a DOE action;

(ii) The DOE's action was erroneous in fact or in law; or

(iii) The DOE's action was arbitrary or capricious.

Sec. 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 order shall include a written statement setting forth the

relevant facts and the legal basis of the order. The order shall state

that it is a final order of the DOE of which the appellant may seek

judicial review.

(c) The OHA shall serve a copy of the 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

order.

Subpart D--Stay

Sec. 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 which the DOE procedural regulations specify shall be

filed with the OHA. 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 orders, regulations, rulings, and generally

applicable requirements shall be complied with unless and until an

application for a stay is granted.

Sec. 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 Sec. 1003.9 shall be complied with in addition

to the requirements stated in this subpart.

Sec. 1003.42 Where to file.

An Application for Stay shall be filed with the OHA at the address

provided in Sec. 1003.11.

Sec. 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 Sec. 1003.9(f), to the applicant. The person

shall certify to the OHA that it 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 will 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 or his

designee 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.

Sec. 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 Sec. 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.

Sec. 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

to the 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 on

the merits of the underlying proceedings;

(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.

Sec. 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

Sec. 1003.50 Purpose and scope.

This subpart establishes the procedures for the filing of an

application for modification or rescission of an OHA order. An

application for modification or rescission is a summary proceeding that

will be initiated only if the criteria described in Sec. 1003.55(b) are

satisfied.

Sec. 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 Sec. 1003.9 shall be complied with in addition

to the requirements stated in this subpart.

Sec. 1003.52 Where to file.

The application shall be filed with the OHA at the address provided

in Sec. 1003.11.

Sec. 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 Sec. 1003.9(f), to each person who is

reasonably ascertainable by the applicant as a person who will be

aggrieved by the OHA action sought, including persons who participated

in the prior proceeding. 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, 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 will 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 Sec. 1003.9(f), to the applicant. The person

shall certify to the OHA that it 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.

Sec. 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. When the application

pertains to only one step of a larger integrated transaction, the

facts, circumstances, and other relevant information pertaining to the

entire transaction shall be submitted.

(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, to insure that the conference is held when

it will be most beneficial. The request and the OHA's determination

regarding it 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 Sec. 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 prior proceeding.

(d) The application shall include a discussion of all relevant

authorities, including, but not limited to, DOE rulings, regulations,

interpretations and decisions on appeal and exceptions relied upon to

support the action sought therein.

Sec. 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 Sec. 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, regulation, interpretation, ruling,

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 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.

Sec. 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 an order granting or denying the application.

(b) The order shall include a written statement setting forth the

relevant facts and the legal basis of the order. The 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 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

order.

Subpart F--Conferences and Hearings

Sec. 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.

Sec. 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 might 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

Sec. 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.

Sec. 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. The determination

as to who may attend a hearing convened under this subpart shall be in

the discretion of OHA, but a hearing will usually be open to the

public.

(b) A hearing may be requested by an applicant, appellant, or any

other person who might 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 Sec. 1003.11.

(c) The OHA will designate an agency official to conduct the

hearing, and will specify the time and place for the hearing.

(d) A hearing may only be convened 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 will 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.

(e) 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 usually be prepared.

(f) 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 it would place an undue burden on another person or the DOE or

because it will cause undue delay.

(g) A Motion for Evidentiary Hearing must be served on any person

from whom information is sought. Any person who wishes to respond to a

Motion for Evidentiary Hearing must do so within ten days of service.

(h) 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.

(i) All hearings convened pursuant to this subpart shall be

conducted by the Director of the OHA or his designee. At any 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

Sec. 1003.70 Purpose and scope.

The OHA shall receive and consider petitions that seek special

redress, relief or other extraordinary assistance apart from or in

addition to the other proceedings described in this part. Such

petitions shall include those seeking special assistance based on an

assertion that a person is adversely affected by DOE regulations,

orders or rulings, or otherwise, administered by DOE in carrying out

functions assigned under DOE legislative authority.

Sec. 1003.71 Who may file.

Any person aggrieved by the regulations contained in 10 CFR Chapter

II may file a petition under this subpart.

Sec. 1003.72 What to file.

The person aggrieved 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

Sec. 1003.9 shall be complied with in addition to the requirements

stated in this subpart.

Sec. 1003.73 Where to file.

A petition shall be filed with the OHA at the address provided in

Sec. 1003.11.

Sec. 1003.74 Notice.

(a) The person filing the petition, except a petition that asserts

that the DOE is not complying with the agency regulations, orders or

rulings, 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 Sec. 1003.9(f), to each person who is reasonably

ascertainable by the petitioner as a person who will 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 may serve notice on any other person readily

identifiable by the OHA as one who will be aggrieved by the OHA action

sought 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 Sec. 1003.9(f), to the petitioner. The person shall

certify to the OHA that it 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.

Sec. 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 the

regulation. Copies of all contracts, agreements, leases, instruments,

and other documents relevant to the petition shall be submitted to the

OHA upon its request. When the petition pertains to only one step of a

larger integrated transaction, the facts, circumstances, and other

relevant information pertaining to the entire transaction must be

submitted.

Sec. 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 Sec. 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 title.

(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

title, and received a final order therefrom that deals with the same

issue or transaction.

Sec. 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 an order granting or denying the petition.

(b) The order denying or granting the petition shall include a

written statement setting forth the relevant facts and legal basis for

the order. Such order shall state that it is a final order of the OHA

of which the petitioner may seek judicial review.

[FR Doc. 94-16105 Filed 7-6-94; 8:45 am]

BILLING CODE 6450-01-P