[Title 10 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2020 Edition]
[From the U.S. Government Publishing Office]
[[Page 1]]
Title 10
Energy
________________________
Part 500 to End
Revised as of January 1, 2020
Containing a codification of documents of general
applicability and future effect
As of January 1, 2020
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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Table of Contents
Page
Explanation................................................. v
Title 10:
Chapter II--Department of Energy (Continued) 3
Chapter III--Department of Energy 289
Chapter X--Department of Energy (General Provisions) 731
Chapter XIII--Nuclear Waste Technical Review Board 1017
Chapter XVII--Defense Nuclear Facilities Safety
Board 1035
Chapter XVIII--Northeast Interstate Low-Level
Radioactive Waste Commission 1071
Finding Aids:
Table of CFR Titles and Chapters........................ 1079
Alphabetical List of Agencies Appearing in the CFR...... 1099
List of CFR Sections Affected........................... 1109
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 10 CFR 500.1 refers
to title 10, part 500,
section 1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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EFFECTIVE AND EXPIRATION DATES
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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``[RESERVED]'' TERMINOLOGY
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Federal Register will approve an incorporation by reference only when
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(a) The incorporation will substantially reduce the volume of
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(b) The matter incorporated is in fact available to the extent
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CFR INDEXES AND TABULAR GUIDES
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that volume.
[[Page vii]]
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Oliver A. Potts,
Director,
Office of the Federal Register
January 1, 2020
[[Page ix]]
THIS TITLE
Title 10--Energy is composed of four volumes. The parts in these
volumes are arranged in the following order: Parts 1-50, 51-199, 200-499
and part 500-end. The first and second volumes containing parts 1-199
are comprised of chapter I--Nuclear Regulatory Commission. The third and
fourth volumes containing part 200-end are comprised of chapters II, III
and X--Department of Energy, chapter XIII--Nuclear Waste Technical
Review Board, chapter XVII--Defense Nuclear Facilities Safety Board, and
chapter XVIII--Northeast Interstate Low-Level Radioactive Waste
Commission. The contents of these volumes represent all current
regulations codified under this title of the CFR as of January 1, 2020.
For this volume, Michele Bugenhagen was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 10--ENERGY
(This book contains part 500 to end)
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Part
chapter ii--Department of Energy (Continued)................ 500
chapter iii--Department of Energy........................... 706
chapter x--Department of Energy (General Provisions)........ 1000
chapter xiii--Nuclear Waste Technical Review Board.......... 1303
chapter xvii--Defense Nuclear Facilities Safety Board....... 1703
chapter xviii--Northeast Interstate Low-level Radioactive
Waste Commission.......................................... 1800
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CHAPTER II--DEPARTMENT OF ENERGY (CONTINUED)
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SUBCHAPTER E--ALTERNATE FUELS
Part Page
500 Definitions................................. 5
501 Administrative procedures and sanctions..... 13
503 New facilities.............................. 38
504 Existing powerplants........................ 57
508
[Reserved]
516
[Reserved]
SUBCHAPTER G--NATURAL GAS (ECONOMIC REGULATORY ADMINISTRATION)
580 Curtailment priorities for essential
agricultural uses....................... 66
590 Administrative procedures with respect to
the import and export of natural gas.... 67
SUBCHAPTER H--ASSISTANCE REGULATIONS
600 Financial assistance rules.................. 82
601 New restrictions on lobbying................ 189
602 Epidemiology and Other Health Studies
Financial Assistance Program............ 200
603 Technology investment agreements............ 209
605 The Office of Science Financial Assistance
Program................................. 241
609 Loan guarantees for projects that employ
innovative technologies................. 253
611 Advanced technology vehicles manufacturer
assistance program...................... 269
SUBCHAPTER I--SALES REGULATION
622 Contractual provisions...................... 280
624 Contract clauses............................ 280
625 Price competitive sale of Strategic
Petroleum Reserve petroleum............. 281
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626 Procedures for acquisition of petroleum for
the Strategic Petroleum Reserve......... 283
627-699
[Reserved]
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SUBCHAPTER E_ALTERNATE FUELS
PART 500_DEFINITIONS--Table of Contents
Sec.
500.1 Purpose and scope.
500.2 General definitions.
500.3 Electric regions--electric region groupings for reliability
measurements under the Powerplant and Industrial Fuel Use Act
of 1978.
Authority: Department of Energy Organization Act, Pub. L. 95-91, 91
Stat. 565 (42 U.S.C. Sec. 7101 et seq.); Powerplant and Industrial Fuel
Use Act of 1978, Pub. L. 95-620, 92 Stat. 3289 (42 U.S.C. 8301 et seq.);
Energy Security Act, Pub. L.96-294, 94 Stat. 611 (42 U.S.C. 8701 et
seq.); E.O. 1209, 42 FR 46267, September 15, 1977.
Source: 46 FR 59884, Dec. 7, 1981, unless otherwise noted.
(OMB Control No.: 1903-0075. See 46 FR 63209, Dec. 31, 1981.)
Sec. 500.1 Purpose and scope.
Unless otherwise expressly provided or the context clearly indicates
otherwise, this section defines the terms used in these regulations. The
use of the male gender is to include female; the use of singular to
include plural.
Sec. 500.2 General definitions.
For purposes of this part and parts 501-507 term(s):
Act means Powerplant and Industrial Fuel Use Act of 1978, 42 U.S.C.
8301 et seq.
Action means a prohibition by rule or order, in accordance with
sections 301(b) and (c) of FUA; any order granting or denying an
exemption in accordance with sections 211, 212, 311 and 312 of FUA; a
modification or rescission of any such order, or rule; an
interpretation; a notice of violation; a remedial order; an interpretive
ruling; or a rulemaking undertaken by DOE.
Affiliate, when used in relation to person, means another person who
controls, is controlled by, or is under common control, with such
person.
Aggrieved, for purposes of administrative proceedings, describes and
means a person (with an interest sought to be protected under FUA) who
is adversely affected by an action proposed or undertaken by DOE.
Air pollution control agency means any of the following:
(1) A single State agency designated as the official State air
pollution control agency;
(2) An agency established by two or more States and having
substantial powers or duties pertaining to the prevention and control of
air pollution;
(3) A city, county, or other local government health authority or,
in the case of any city, county, or other local unit of government in
which there is an agency other than the health authority charged with
responsibility for enforcing ordinances or laws relating to the
prevention and control of air pollution, such other agency; or
(4) An agency or two or more municipalities located in the same
State or in different States and having substantial powers or duties
pertaining to the prevention and control of air pollution.
Alternate fuel means electricity or any fuel, other than natural gas
or petroleum. The term includes, but is not limited to :
(1) Coal;
(2) Solar energy;
(3) Petroleum coke; shale oil; uranium; biomass, tar sands, oil-
impregnated diatomaceous earth; municipal, industrial, or agricultural
wastes; wood; and renewable and geothermal energy sources (For purposes
of this paragraph (3), the term industrial does not include
refineries.);
(4) Liquid, solid or gaseous waste by-products of refinery or
industrial operations which are commercially unmarketable, either by
reason of quality or quantity. (For purposes of this paragraph (4), the
term waste by-product is defined as an unavoidable by-product of the
industrial or refinery operation.) A waste by-product of a refinery or
industrial operation is commercially unmarketable if it meets the
criteria listed in the definition of ``commercial unmarketability,'' set
forth below;
(5) Any fuel derived from an alternate fuel; and
(6) Waste gases from industrial operations. (For purposes of this
subsection, the term industrial does not include refineries.)
[[Page 6]]
Applicable environmental requirements includes:
(1) Any standard, limitation, or other requirement established by or
pursuant to Federal or State law (including any final order of any
Federal or State Court) applicable to emissions of environmental
pollutants (including air and water pollutants) or disposal of solid
waste residues resulting from the use of coal or other alternate fuels,
natural gas, or petroleum as a primary energy source or from the
operation of pollution control equipment in connection with such use,
taking into account any variance of law granted or issued in accordance
with Federal law or in accordance with State law to the extent
consistent with Federal law; and
(2) Any other standard, limitation, or other requirement established
by, or pursuant to, the Clean Air Act, the Federal Water Pollution
Control Act, the Solid Waste Disposal Act, the Resource Conservation and
Recovery Act of 1976, or the National Environmental Policy Act of 1969.
Base load powerplant means a powerplant, the electrical generation
of which in kilowatt hours exceeds, for any 12-calendar-month period,
such powerplant's design capacity multiplied by 3,500 hours.
Boiler means a closed vessel in which water is heated electrically
or by the combustion of a fuel to produce steam of one percent or more
quality.
Btu means British thermal unit.
Capability to use alternate fuel, for the purposes of Title II
prohibitions relating to construction of new powerplants, means the
powerplant to be constructed:
(1) Has sufficient inherent design characteristics to permit the
addition of equipment (including all necessary pollution devices)
necessary to render such electric powerplant capable of using coal or
another alternate fuel as its primary energy source; and
(2) Is not physically, structurally, or technologically precluded
from using coal or another alternate fuel as its primary energy source.
Capability to use coal or another alternate fuel shall not be
interpreted to require any such powerplant to be immediately able to use
coal or another alternate fuel as its primary energy source on its
initial day of operation. In addition, the owner or operator of a
baseload powerplant need not have adequate on-site space for either a
coal gasifier or any facilities for handling coal or related fuels.
Certification means a document, signed by an official of the owner
or operator, notarized, and submitted to OFE, which declares that a new
powerplant will have the ``capability to use alternate fuel'' (as
defined herein).
Certifying powerplant means an existing powerplant whose owner or
operator seeks to obtain a prohibition order against the use of natural
gas or petroleum either totally or in a mixture with coal or an
alternate fuel by filing a certification as to both the technical
capability and financial feasibility of conversion to coal or another
alternate fuel pursuant to section 301 of FUA, as amended.
Clean Air Act means the Clean Air Act, 42 U.S.C. 7401 et seq.
(1970), as amended by Public Law 93-319, 88 Stat. 246, and Public Law
95-91, 91 Stat. 685.
Coal means anthracite, bituminous and sub-bituminous coal, lignite,
and any fuel derivative thereof.
Cogeneration facility means an electric powerplant that produces:
(1) Electric power; and
(2) Any other form of useful energy (such as steam, gas or heat)
that is, or will be used, for industrial, commercial, or space heating
purposes. In addition, for purposes of this definition, electricity
generated by the cogeneration facility must constitute more than five
(5) percent and less than ninety (90) percent of the useful energy
output of the facility.
Note: Any cogeneration facility selling or exchanging less than
fifty percent (50%) of the facility's generated electricity is
considered an industrial cogenerator and is exempt from the fuel use
prohibitions of FUA.
Combined cycle unit means an electric power generating unit that
consists of a combination of one or more combustion turbine units and
one or more steam turbine units with a substantial portion of the
required energy input of the steam turbine unit(s) provided by the
exhaust gas from the combustion turbine unit(s).
Substantial amounts of supplemental firing for a steam turbine or
waste heat
[[Page 7]]
boiler to improve thermal efficiency will not affect a unit's
classification as a combined cycle unit.
Combustion turbine means a unit that is a rotary engine driven by a
gas under pressure that is created by the combustion of any fuel.
Commercial unmarketability as used in the definitions of ``alternate
fuel,'' ``natural gas'' and ``petroleum'' shall be determined as
follows:
(1) A waste by-product of industrial or refinery operations is
commercially unmarketable by reason of:
(i) Quality, where the cost of processing (limited to upgrading the
waste by-product to commercial quality), storing, and distributing the
waste by-product would not be covered by reasonably expected revenues
from its sale;
(ii) Quantity, where the cost of aggregating the waste by-product
into commercial quantities through storing and distributing the waste
by-product would not be covered by reasonably expected revenues from its
sale.
(2) A fuel will not be classified as ``natural gas'' when it is
commercially unmarketable by reason of:
(i) Quality, where the cost of producing, upgrading to commercial
quality, storing, and distributing the fuel would not be covered by
reasonably expected revenues from its sale; or
(ii) Quantity, where the quantities of the fuel are so small that
the revenues to be reasonably expected from its sale would not cover the
cost of its production, distribution or storage.
(3) Costs associated with upgrading, storing, distributing, and
aggregating a by-product or other fuel (to determine if such fuel is
natural gas) may properly include a reasonable rate of return on any
capital investment required to overcome the problems posed by the
quality or quantity of a fuel because the return on investment is a
normal aspect of any investment decision. A firm may account for this
reasonable rate of return by using its customary discount rate for an
investment of similar risk.
(4) As part of any consideration of the rate of return on
investment, the cost of replacing the Btu's lost if the by-product or
other fuel were upgraded and sold instead of used as a fuel may be taken
into consideration. The actual expense that would result from burning a
replacement fuel in lieu of the by-product or other fuel in question may
therefore be considered. The costs associated with using a replacement
fuel are indirect costs that result from upgrading and selling the fuel,
instead of burning it. These indirect costs as well as the direct costs
associated with the upgrading, storing, distributing, and aggregating of
by-products or other fuel may be considered in any assessment of
commercial unmarketability.
Conference means an informal meeting incident to any proceeding,
between DOE and any interested person.
Construction means substantial physical activity at the unit site
and includes more than clearance of a site or installation of foundation
pilings.
Costs means total costs, both operating and capital, incurred over
the estimated remaining useful life of an electric powerplant,
discounted to the present, pursuant to rules established in parts 503
and 504 of these regulations.
DEOA means the Department of Energy Organization Act (Pub. L. 95-91)
(42 U.S.C. 7101 et seq.) as implemented by Executive Order 12009 (42 FR
46267, September 15, 1977).
Design capability defined in section 103(a)(7) of FUA, shall be
determined as follows:
(1) Boiler and associated generator turbines. The design fuel heat
input rate of a steam-electric generating unit (Btu/hr) shall be the
product of the generator's nameplate rating, measured in kilowatts, and
3412 (Btu/kWh), divided by the overall boiler-turbine-generator unit
design efficiency (decimal); or if the generator's nameplate does not
have a rating measured in kilowatts, the product of the generator's
kilovolt-amperes nameplate rating, and the power factor nameplate
rating; and 3412 (Btu/kWh), divided by the boiler turbine-generator
unit's design efficiency (decimal). (The number 3412 converts kilowatt-
hours (absolute) into Btu's (mean).)
(2) Combustion turbine and associated generator. The design fuel
heat input rate of a combustion turbine (Btu/hr) shall be the product of
its nameplate rating, measured in kilowatts, and 3412
[[Page 8]]
(Btu/kWh), divided by the combustion turbine-generator unit's design
efficiency (decimal), adjusted for peaking service at an ambient
temperature of 59 degrees Fahrenheit (15 degrees Celsius) at the unit's
elevation. (The number 3412 converts kilowatt-hours (absolute) into
Btu's (mean).)
(3) Combined cycle unit. The design fuel heat input rate of a
combined cycle unit (Btu/hr) shall be the summation of the product of
its generator's nameplate rating, measured in kilowatts, and 3412 (Btu/
kWh), divided by the overall combustion turbine-generator unit's
efficiency (decimal), adjusted for peaking service at an ambient
temperature of 59 degrees Fahrenheit (15 degrees Celsius) and at the
unit's evaluation, plus the product of the maximum fuel heat input to
any supplemental heat recovery steam generator/boiler in gallons or
pounds per hour and the fuel's heat content. If the generator's
nameplate does not have a rating measured in kilowatts, the product of
the generator's kilowatt-amperes nameplate rating and power factor
nameplate rating must be substituted for kilowatts. (The number 3412
converts kilowatt-hours (absolute) into Btu's (mean).)
Design capacity of a powerplant pursuant to section 103(a)(18) of
FUA, is determined according to 18 CFR 287.101.
DOE or the Department means the United States Department of Energy,
as defined in sections 201 and 301(a) of the DEOA, including the
Secretary of Energy or his designee.
Duly authorized representative means a person who is authorized to
appear before DOE in connection with a proceeding on behalf of a person
interested in or aggrieved by that proceeding. Such appearance may
include the submission of applications, petitions, requests, statements,
memoranda of law, other documents, or of a personal appearance, oral
communication, or any other participation in a proceeding.
Electing powerplant means an existing powerplant, which (1) has been
issued a proposed prohibition order under former section 301 (b) or (c)
of FUA prior to August 13, 1981, the date of enactment of the Omnibus
Budget Reconciliation Act of 1981, Public Law 97-35 (OBRA); and (2)
files an election to continue the current prohibition order proceeding
under provisions of the former section 301 of FUA, rather than under
amended section 301 of FUA. \1\ Under the election provisions, an
existing powerplant which has an order pending against it under section
2 of the Energy Supply and Environmental Coordination Act of 1974, as
amended, 15 U.S.C. 791 et seq. (ESECA), as of August 13, 1981, may also
elect to continue the current proceeding under section 2 of ESECA.
Electing powerplants under ESECA are not included in the FUA definition
of ``electing powerplant''. Relevant regulations governing ESECA
proceedings are found at 10 CFR part 303 and 305. These elections must
have been filed with DOE by November 30, 1981 in the case of FUA orders
and by January 14, 1982 in the case of ESECA orders.
---------------------------------------------------------------------------
\1\ The election provisions are published at 46 FR 48118 (October 1,
1981) and will not be codified in the Code of Federal Regulations.
---------------------------------------------------------------------------
Electric generating unit does not include:
(1) Any electric generating unit subject to the licensing
jurisdiction of the Nuclear Regulatory Commission (NRC); and
(2) Any cogeneration facility from which less than 50 percent of the
net annual electric power generation is sold or exchanged for resale.
Excluded from `sold or exchanged for resale' are sales or exchanges to
or with an electric utility for resale by the utility to the
cogenerating supplier, and sales or exchanges among owners of the
cogeneration facility.
Note: For purposes of subparagraph (1) of this definition, OFE will
not consider any unit located at a site subject to NRC's licensing
authority to be jurisdictional for purposes of FUA.
Electric powerplant means any stationary electric generating unit
consisting of (a) a boiler, (b) a gas turbine, or (c) a combined cycle
unit which employs a generator to produce electric power for purposes of
sale or exchange and has the design capabilityf consuming any fuel (or
mixture thereof) at a fuel heat input rate of 100 million Btu's per hour
or greater. In accordance with section 103(a)(7)(C) of FUA, the
Secretary has determined that it is
[[Page 9]]
appropriate to exclude from this definition any unit which has a design
capability to consume any fuel (including any mixture thereof) that does
not equal or exceed 100 million Btu's per hour.
Electric Region is as defined in Sec. 500.3 of this part.
Electric utility means any person, including any affiliate, or
Federal agency, which sells electric power.
Emission offset means emission reductions as defined by EPA's
regulations set forth at 40 CFR part 51, appendix S.
EPA means the United States Environmental Protection Agency.
ESECA means the Energy Supply and Environmental Coordination Act of
1974, as amended, 15 U.S.C. 791 et seq.
Existing powerplant means any powerplant other than a new
powerplant.
Federal Water Pollution Control Act means the Federal Water
Pollution Control Act, 33 U.S.C. 1251 et seq., as amended.
FERC means the Federal Energy Regulatory Commission.
Firm means a parent company and the consolidated or unconsolidated
entities (if any) that it directly or indirectly controls.
Fluidized bed combustion means combustion of fuel in connection with
a bed of inert material, such as limestone or dolomite, that is held in
a fluid-like state by the means of air or other gases being passed
through such materials.
FTC means the Federal Trade Commission.
FUA means the Powerplant and Industrial Fuel Use Act of 1978, 42
U.S.C. 8301 et seq.
Fuel Use Act means FUA.
Fuel use order means a directive issued by OFE pursuant to Sec.
501.167 of these regulations.
Gas turbine means ``combustion turbine''.
High-priority user, for purposes of subsection 312(j) of FUA, means
any residential user of natural gas, or any commercial user whose
consumption of natural gas on peak day is less than 50 MCF.
Internal combustion engine means a heat engine in which the
combustion that generates the heat takes place inside the engine proper.
Interpretation means a written statement issued by the DOE General
Counsel or his delegate, in response to a written request, that applies
the regulations, rulings, and other precedents previously issued by the
DOE to the particular facts of a prospective or completed act or
transaction.
Mcf means 1,000 cubic feet of natural gas.
Mixture, when used in relation to fuels used in a unit, means a
mixture of petroleum or natural gas and an alternate fuel, or a
combination of such fuels, used simultaneously or alternately in such
unit.
Natural gas means any fuel consisting in whole or in part of natural
gas, including components of natural gas such as methane and ethane;
liquid petroleum gas; synthetic gas derived from petroleum or natural
gas liquids; or any mixture of natural gas and synthetic gas. Natural
gas does not include:
(1) Gaseous waste by-products or waste gas specifically designated
as an alternate fuel in Sec. 500.2 of these regulations;
(2) Natural gas which is commercially unmarketable, as defined in
these rules;
(3) Natural gas produced by the user from a well, the maximum
efficient production rate of which is less than 250 million Btu's per
day. For purposes of paragraph (3) of this definition:
(i) Produced by the user means:
(A) All gas produced by the well, when such gas is delivered for use
in the user's facility through a gas delivery, gathering, or
transportation system which could not deliver such gas to any other
user; or
(B) Only that amount which represents the user's net working
(mineral) interest in the gas produced from such well, where such gas is
delivered for use in the user's facility through a gas delivery,
gathering, or transportation system which could deliver such gas to any
other user.
(ii) Maximum efficient production rate (MEPR) means that rate at
which production of natural gas may be sustained without damage to the
reservoir or the rate which may be sustained without damage to the
ultimate recovery of oil or gas through the well.
[[Page 10]]
(4) Occluded methane in coal seams within the meaning of section
107(c)(3) of the Natural Gas Policy Act of 1978 (NGPA);
(5) The following gas from wells spudded prior to January 1, 1990:
(i) Gas produced from geopressurized brine, within the meaning of
section 107(c)(2) of the NGPA;
(ii) Gas produced from Devonian shale, within the meaning of section
107(c)(4) of the NGPA;
(iii) Gas produced from tight sands, as designated by the FERC in
accordance with section 107(c)(5) of the NGPA; and
(iv) Other gases designated by FERC as ``high-cost natural gas'' in
accordance with section 107(c)(5) of the NGPA, except as specifically
designated as ``natural gas'' by OFE;
(6)(i) Synthetic gas derived from coal or other alternate fuel, the
heat content of which is less than 600 Btu's per cubic foot at 14.73
pounds per square inch (absolute) and 60 [deg]F; and
(ii) Commingled natural gas and synthetic gas derived from coal
consumed as part of the necessary process of a major fuel burning
installation used in the iron and steel industry, so long as the average
annual Btu heat content of the commingled stream as consumed within a
major fuel burning installation does not exceed 600 Btu's per cubic foot
at 14.73 pounds per square inch (absolute) and 60 [deg]F;
(7) Mixtures of natural gas and synthetic gas derived from alternate
fuels for which the person proposing to use the gas certifies to OFE
that:
(i) He owns, or is entitled to receive at the point of manufacture,
synthetic gas derived from alternate fuels;
(ii) He delivers, or arranges for the delivery of such synthetic gas
to a pipeline which by transport or displacement is capable of
delivering such synthetic gas, mixed with natural gas, to facilities
owned by the user;
(iii) The total annual Btu content of the synthetic gas delivered to
a pipeline is equal to or greater than the total annual Btu content of
the natural gas delivered to the facilities owned by the user, plus the
approximate total annual Btu content of any natural gas consumed or lost
in transportation; and
(iv) All necessary permits, licenses, or approvals from appropriate
Federal, State, and local agencies (including Indian tribes) have been
obtained for construction and operation of the facilities for the
manufacture of the synthetic gas involved, except that for purposes of
the prohibition under section 201(2) of FUA against powerplants being
constructed without the capability of using coal or another alternate
fuel, only permits, licenses, and approvals for the construction of such
synthetic gas facilities shall be required under this subparagraph, to
be certified and documented; and
(8) A mixture of natural gas and an alternate fuel when such mixture
is deliberately created for purposes of (i) Complying with a prohibition
order issued pursuant to section 301(c) of the Act, or (ii) Qualifying
for a fuel mixtures exemption under the Act, provided such exemption is
granted.
NEPA means the National Environmental Policy Act of 1969, as
amended, 42 U.S.C. 4321 et seq.
New electric powerplant means any electric powerplant: (1) That was
not classified as existing under part 515 of this subchapter; (2) That
was reconstructed, as defined in these rules under the definition of
``reconstruction''; or (3) For which construction was begun after
November 9, 1978.
NGPA means the Natural Gas Policy Act of 1978, 15 U.S.C. 3301 et
seq.
Nonboiler means any powerplant which is not a boiler and consists of
either a combustion turbine unit or combined cycle unit.
Notice of violation means a written statement issued to a person by
DOE that states one or more alleged violations of the provisions of
these regulations, any order issued pursuant thereto, or the Act.
OBRA means the Omnibus Budget Reconciliation Act of 1981, Public Law
97-35.
OFE means the Office of Fossil Energy of OFE.
Offset means ``emission offset''.
Order means a final disposition, other than the issuance of a rule,
issued by DOE pursuant to these regulations or the Act.
Person means any:
[[Page 11]]
(1) Individual, corporation, company, partnership, association,
firm, institution, society, trust, joint venture, or joint stock
company;
(2) Any State; or
(3) Any Federal, State, or local agency or instrumentality
(including any municipality) thereof.
Petroleum means crude oil and products derived from crude oil, other
than:
(1) Petroleum products specifically designated as alternate fuels
pursuant to these regulations;
(2) Synthetic gas derived from crude oil;
(3) Liquid petroleum gas;
(4) Petroleum coke or waste gases from industrial operations; and
(5) A liquid, solid, or gaseous waste by-product of refinery
operations which is commercially unmarketable under the definition of
``commercial unmarketability'' in these rules.
Note: For the purposes of this subparagraph, waste by-products do
not include components (such as butane and propane) that can be
extracted from the waste by-product by reasonable further processing of
the waste by-product at the refinery, nor do they include final products
that use the waste by-product as a blend stock at the refinery.
Petition means a formal request for any action including an
exemption submitted to DOE under these regulations.
Powerplant means ``electric powerplant.''
Product or process requirements means that product or process for
which the use of an alternate fuel is not technically feasible due to
the necessity to maintain satisfactory control of product quality and
for which the substitution of steam is not technically feasible due to
process requirements.
Primary energy source means the fuel or fuels used by any existing
or new electric powerplant except:
(1) Minimum amounts of fuel required for unit ignition, startup,
testing, flame stabilization, and control uses. OFE has determined that,
unless need for a greater amount is demonstrated, twenty-five (25)
percent of the total annual Btu heat input of a unit shall be
automatically excluded under this paragraph.
(2) Minimum amounts of fuel required to alleviate or prevent:
(i) Unanticipated equipment outages as defined in Sec. 501.191 of
these regulations; and
(ii) Emergencies directly affecting the public health, safety, or
welfare that would result from electric power outages as defined in
Sec. 501.191 of these regulations.
Note: (1) Any fuel excluded under the provisions of paragraph (1) of
this definition is in addition to any fuel authorized to be used in any
order granting a fuel mixtures exemption under parts 503 and 504 of
these rules. The exclusion of fuel under paragraph (1), together with
the authority for such additive treatment, shall apply to any
jurisdictional facility, regardless of whether or not it had received an
order granting an exemption as of the date these rules are promulgated.
(2) If an auxiliary unit to an electric powerplant consumes fuel
only for the auxiliary functions of unit ignition, startup, testing,
flame stabilization, and other control uses, its use of minimum amounts
of natural gas or petroleum is not prohibited by FUA. The measurement of
such minimum amounts of fuel is discussed in Associated Electric
Cooperative, et al., Interpretation 1980-42 [45 FR 82572, Dec. 15,
1980].
Prohibition order means:
(1) An order issued pursuant to section 301(b) of the Act that
prohibits a powerplant from burning natural gas or petroleum as its
primary energy source; or
(2) An order issued pursuant to section 301(c) of the Act that
prohibits excessive use of natural gas or petroleum in mixtures burned
by a powerplant as its primary energy source.
Rated capacity for the purpose of determining reduction in the rated
capacity of an existing powerplant, means design capacity, or, at the
election of the facility owner or operator, the actual maximum sustained
energy output per unit of time that could be produced, measured in power
output, expressed in kilowatts, per unit of time.
Reconstruction means the following:
(1) Except as provided in paragraph (2) of this definition,
reconstruction shall be found to have taken place whenever the capital
expenditures for refurbishment or modification of an electric powerplant
on a cumulative basis for the current calendar year and
[[Page 12]]
preceding calendar year, are equal to or greater than fifty (50) percent
of the capital costs of an equivalent replacement unit of the same
capacity, capable of burning the same fuels.
(2) Notwithstanding paragraph (1) of this definition, reconstruction
shall not be found to have taken place whenever:
(i) The capital expenditures for refurbishment or modification of an
electric powerplant, on a cumulative basis for the current calendar year
and preceding calendar year, are not greater than eighty (80) percent of
the capital costs of an equivalent replacement unit of the same
capacity, capable of burning the same fuels and the unit, as refurbished
or modified, will not have a greater fuel consumption capability than
the unit it replaces;
(ii) The unit being refurbished or modified was destroyed, in whole
or substantial part, in a plant accident and the unit, as refurbished or
modified, will not have a greater fuel consumption capability than the
unit it replaces; or
(iii) Refurbishment or modification of the unit is undertaken
primarily for the purpose of increasing fuel burning efficiency of the
unit, and will not result in:
(A) Increased remaining useful plant life, or
(B) Increased total annual fuel consumption.
Resource Conservation and Recovery Act of 1976 means the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. 6901 et seq.
SIP means State Implementation Plan pursuant to section 10 of the
Clean Air Act.
Site limitation means a specific physical limitation associated with
a particular site that relates to the use of an alternate fuel as a
primary energy source for the powerplant such as:
(1) Inaccessibility to alternate fuels;
(2) Lack of transportation facilities for alternate fuels;
(3) Lack of adequate land for facilities for the handling, use and
storage of alternate fuels;
(4) Lack of adequate land or facilities for the control or disposal
of wastes from such powerplant, including lack of land for pollution
control equipment or devices necessary to assure compliance with
applicable environmental requirements; and
(5) Lack of an adequate and reliable supply of water, including
water for use in compliance with applicable environmental requirements.
Solid Waste Disposal Act means the Solid Waste Disposal Act, 42
U.S.C. 6901 et seq., as amended.
State regulatory authority means any State agency that acts as
ratemaking or power supply authority with respect to the sale of
electricity by any State regulated electric utility.
Synthetic fuel means any fuel derived from an alternate fuel and
does not include any fuels derived from petroleum or natural gas.
Wetlands areas means, for purposes of section 103(a)(12) of the Act,
those geographical areas designated as wetlands areas by State or local
environmental regulatory authorities, or in the absence of any such
geographic designation, those areas that are inundated by surface or
ground water with frequency sufficient to support, and under normal
circumstances does or would support, a prevalence of vegetation or
aquatic life that requires saturated, seasonably saturated, or tidally
saturated soil conditions for growth or reproduction.
(Department of Energy Organization Act, Pub. L. 95-91, 42 U.S.C. 7101 et
seq.; Energy Supply and Environmental Coordination Act of 1974, Pub. L.
93-319, as amended by Pub. L. 94-163, Pub. L. 95-70, and Pub. L. 95-620,
(15 U.S.C. 719 et seq.); Powerplant and Industrial Fuel Use Act of 1978,
Pub. L. 95-620, as amended by Pub. L. 97-35 (42 U.S.C. 8301 et seq.);
Omnibus Budget Reconciliation Act of 1981, Pub. L. 97-35)
[46 FR 59884, Dec. 7, 1981, as amended at 47 FR 15313, 15314, Apr. 9,
1982; 47 FR 17041, Apr. 21, 1982; 47 FR 29210, July 6, 1982; 47 FR
34972, Aug. 12, 1982; 54 FR 52889, Dec. 22, 1989]
Sec. 500.3 Electric regions--electric region groupings for
reliability measurements under the Powerplant and Industrial Fuel
Use Act of 1978.
(a) The following is a list of electric regions for use with regard
to the Act. The regions are identified by FERC Power Supply Areas
(PSA's) as authorized by section 202(a) of the Federal Power Act except
where noted. They will be reviewed annually by ERA.
[[Page 13]]
Each grouping meets one or more of the following criteria:
(1) Existing centrally dispatched pools and hourly power brokers;
(2) Systems with joint planning and construction agreements;
(3) Systems with coordination agreements in the areas of:
(i) Generation reserve and system reliability criteria;
(ii) Capacity and energy exchange policies;
(iii) Maintenance scheduling; and
(iv) Emergency procedures for dealing with capacity or fuel
shortages; or
(4) Systems within the same National Electric Reliability Council
(NERC) region with historical coordination policies.
(b) The PSA's referred to in the definition of electric regions in
paragraph (a) of this section were first defined by the Federal Power
Commission in 1936. The most recent reference to them is given in the
1970 National Power Survey, Vol. 1, Pg. 1-3-16. In cases where a
petitioner finds an ambiguity in a regional assignment, he shall consult
with DOE for an official determination.
Electric Region Groupings and FERC PSA's:
1. Allegheny Power System (APS)--7, except Duquesne Light Company.
2. American Electric Power System (AEP)--entire AEP System.
3. New England Planning Pool (NEPOOL)--1, 2.
4. New York Planning Pool (NYPP)--3, 4.
5. Pennsylvania--New Jersey--Maryland interconnection (PJM)--5, 6.
6. Commonwealth Edison Company--14.
7. Florida Coordination Group (FCG)--24.
8. Middle South Utilities--25.
9. Southern Company--22, 23.
10. Gulf States Group--35.
11. Tennessee Valley Authority (TVA)--20.
12. Virginia--Carolina Group (VACAR)--18, 21.
13. Central Area Power Coordination Group (CAPCO)--Cleveland
Electric Illuminating Company, Toledo Edison Company, Ohio Edison
Company, Duquesne Light Company.
14. Cincinnati, Columbus, Dayton Group (CCD)--Cincinnati Gas and
Electric Company, Columbus and Southern Ohio Electric Company, Dayton
Power and Light Company.
15. Kentucky Group--19.
16. Indiana Group--Indiana Utilities except AEP.
17. Illinois--Missouri Group (ILLMO)--15, 40.
18. Michigan Electric Coordinated Systems (MECS)--11.
19. Wisconsin--Upper Michigan Group (WUMS)--13.
20. Mid-Continent Area Power Pool (MAAP)--16, 17, 26, 27, 28.
21. Missouri--Kansas Group (MOKAN)--24, 29.
22. Oklahoma Group--33, 36.
23. Texas Interconnected Systems (TIS)--37, 38.
24. Rocky Mountain Power Pool (RMPP)--31, 32.
25. Northwest Power Pool (NWPP)--30, 42, 43, 44, 45.
26. Arizona--New Mexico Group--39, 48 within Arizona. in Nevada and
California.
27. Southern California--Nevada--47, 48.
28. Northern California--Nevada--46.
29. Alaska (non-interconnected systems to be considered
separately)--49.
30. Idaho--Utah Group--41.
PART 501_ADMINISTRATIVE PROCEDURES AND SANCTIONS--Table of Contents
Subpart A_General Provisions
Sec.
501.1 Purpose and scope.
501.2 Prepetition conference.
501.3 Petitions.
501.4-501.5 [Reserved]
501.6 Service.
501.7 General filing requirements.
501.8 [Reserved]
501.9 Effective date of orders or rules.
501.10 Order of precedence.
501.11 Address for filing documents.
501.12 Public files.
501.13 Appeal.
501.14 Notice to Environmental Protection Agency.
Subpart B [Reserved]
Subpart C_Written Comments, Public Hearings and Conferences During
Administrative Proceedings
501.30 Purpose and scope.
501.31 Written comments.
501.32 Conferences (other than prepetition conferences).
501.33 Request for a public hearing.
501.34 Public hearing.
501.35 Public file.
Subpart D_Subpoenas, Special Report Orders, Oaths and Witnesses
501.40 Issuance.
Subpart E_Prohibition Rules and Orders
501.50 Policy.
[[Page 14]]
501.51 Prohibitions by order--electing powerplants.
501.52 Prohibitions by order--certifying powerplants.
501.53-501.56 [Reserved]
Subpart F_Exemptions and Certifications
501.60 Purpose and scope.
501.61 Certification contents.
501.62 Petition contents.
501.63 Notice of the commencement of an administrative proceeding on an
exemption petition.
501.64 Publication of notice of availability of tentative staff
analysis.
501.65 Publication of notice of availability of draft EIS.
501.66 OFE evaluation of the record, decision and order.
501.67 Petition redesignations.
501.68 Decision and order.
501.69 Judicial review.
Subpart G_Requests for Modification or Rescission of a Rule or Order
501.100 Purpose and scope.
501.101 Proceedings to modify or rescind a rule or order.
501.102 OFE evaluation of the record, decision and order for
modification or rescission of a rule or order.
501.103 OFE decision.
Subpart H_Requests for Stay
501.120 Purpose and scope.
501.121 Filing and notice of petitions for stays.
501.122 Contents.
501.123 Evaluation of the record.
501.124 Decision and order.
Subpart I_Requests for Interpretation
501.130 Purpose and scope.
501.131 Filing a request for interpretation.
501.132 Contents of a request for interpretation.
501.133 DOE evaluation.
501.134 Issuance and effect of interpretations.
Subpart J_Rulings
501.140 Purpose and scope.
501.141 Criteria for issuance.
501.142 Modification or rescission.
501.143 Comments.
Subpart K_Enforcement
501.160 Purpose and scope.
501.161 Filing a complaint.
501.162 Contents of a complaint.
501.163 OFE evaluation.
501.164 Decision to initiate enforcement proceedings.
501.165 Commencement of enforcement proceedings.
501.166 Hearings and conferences.
501.167 Fuel use order.
Subpart L_Investigations, Violations, Sanctions and Judicial Actions
501.180 Investigations.
501.181 Sanctions.
501.182 Injunctions.
501.183 Citizen suits.
Subpart M_Use of Natural Gas or Petroleum for Emergency and
Unanticipated Equipment Outage Purposes
501.190 Purpose and scope.
501.191 Use of natural gas or petroleum for certain unanticipated
equipment outages and emergencies defined in section
103(a)(15)(B) of the act.
501.192 [Reserved]
Authority: 42 U.S.C. 7101 et seq.; 42 U.S.C. 8301 et seq.; 42 U.S.C.
8701 et seq.; E.O. 12009, 42 FR 46267; 28 U.S.C. 2461 note.
Source: 46 FR 59889, Dec. 7, 1981, unless otherwise noted.
(OMB Control No.: 1903-0075. See 46 FR 63209, Dec. 31, 1981.)
Subpart A_General Provisions
Sec. 501.1 Purpose and scope.
Part 501 establishes the procedures to be used in proceedings before
DOE under parts 500-508 of this chapter except as otherwise provided.
Sec. 501.2 Prepetition conference.
(a) Owners and operators of powerplants may request a prepetition
conference with OFE for the purpose of discussing the applicability of
10 CFR parts 503 and 504 to their situations and the scope of any
exemption or other petition that OFE would accept as adequate for filing
purposes.
(b) The owner or operator who requests a prepetition conference may
personally represent himself or may designate a representative to appear
on his behalf. A prepetition conference or a request for a prepetition
conference does not commence a proceeding before OFE.
(c) If OFE agrees to waive any filing requirements under Sec.
501.3(d), a memorandum of record stating this fact will
[[Page 15]]
be furnished to the potential petitioner within thirty (30) days after
the conference. Copies of all applicable memoranda of record must be
attached to any subsequently-filed petition.
(d) A record of all prepetition conferences will be included in the
public file. OFE may provide for the taking of a formal transcript of
the conference and the transcript will be included in the public file.
[46 FR 59889, Dec. 7, 1981, as amended at 54 FR 52891, Dec. 22, 1989]
Sec. 501.3 Petitions.
(a) Filing of petitions. Petitions for exemptions are to be filed
with OFE at the address given in Sec. 501.11.
(b) Acceptance of petition. (1) Upon acceptance (as distinguished
from filing) of the petition, OFE shall publish in the Federal Register
a Notice of Acceptance of Petition or, in the case of an exemption by
certification, a Notice of Acceptance and Availability of Certification,
signifying that an exemption proceeding has commenced.
(2) OFE will notify each petitioner in writing within thirty (30)
days of receipt of the petition that it has been accepted or rejected
and, if rejected, the reasons therefor.
(3) A petition, including supporting documents, will be accepted if
the information contained appears to be sufficient to support an OFE
determination. Additional information may be requested during the course
of the proceeding, and failure to respond to such a request may
ultimately result in denial of the requested exemption.
(4) Acceptance of petition does not constitute a determination that
the requested exemption will be granted.
(c) Rejection of petition. (1) OFE will reject a petition if it does
not meet the information of certification requirements established for
the relevant exemptions under parts 503 and 504 of this chapter. A
written explanation of the reasons for rejection will be furnished with
notification of the rejection.
(2) A timely-filed petition rejected as inadequate will not be
rendered untimely if resubmitted in amended form within ninety (90) days
of the date of rejection.
(3) OFE will, within thirty (30) days of receipt of a petition that
is found to be incomplete due to minor deficiencies, notify the
petitioner of the deficiencies and allow ninety (90) days from the date
of notification to cure the specified deficiencies. The failure to cure
the deficiencies during this time may result in denial of the requested
exemption.
(d) Waiver of filing requirements. Upon its own motion or at the
request of a petitioner, OFE may waive some or all of the regulatory
requirements if the purposes of FUA would be best achieved by doing so.
Sec. Sec. 501.4-501.5 [Reserved]
Sec. 501.6 Service.
(a) DOE will serve all orders, notices interpretations or other
documents that it is required to serve, personally or by mail, unless
otherwise provided in these regulations.
(b) DOE will consider service upon a petitioner's duly authorized
representative to be service upon the petitioner.
(c) Service by mail is effective upon mailing.
[54 FR 52891, Dec. 22, 1989]
Sec. 501.7 General filing requirements.
Except as indicated otherwise, all documents required or permitted
to be filed with OFE or DOE in connection with a proceeding under parts
503 and 504 shall be filed in accordance with the following provisions:
(a) Filing of documents. (1) Documents including, but not limited
to, applications, requests, complaints, petitions (including petitions
for exemption), and other documents submitted in connection therewith,
filed with OFE are considered to be filed upon receipt.
(2) Notwithstanding the provisions of paragraph (a)(1) of this
section, an application for modification or rescission in accordance
with subpart G of this part, a reply to a notice of violation, a
response to a denial of a claim of confidentiality, or a comment
submitted in connection with any proceeding transmitted by registered or
certified mail and addressed to the appropriate office is considered to
be filed upon mailing.
(3) Timeliness. Documents are to be filed with the appropriate DOE
or OFE office listed in Sec. 501.11. Documents that
[[Page 16]]
are to be considered filed upon receipt under paragraph (a)(1) of this
section and that are received after regular business hours are deemed
filed on the next regular business day. Regular business hours are 8
a.m. to 4:30 p.m.
(4) Computation of time. In computing any period of time prescribed
or allowed by FUA, these regulations or by an order, 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.
(5) 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
and the order, notice, interpretation or other document is served by
mail, three (3) days shall be added to the prescribed period.
(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
upon good cause shown.
(7) Signing. All applications, petitions, requests, comments, and
other documents that are required to be signed, shall be signed by the
person filing the document or a duly authorized representative. Any
application, petition, request, complaint, or other document filed by a
duly authorized representative shall contain a statement by such person
certifying that he is a duly authorized representative, unless an OFE
form otherwise requires. (A false certification is unlawful under the
provisions of 18 U.S.C. 1001 (1970).)
(8) Labeling. An application, petition, or other request for action
by DOE or OFE should be clearly labeled according to the nature of the
action involved, e.g., ``Petition for Temporary Exemption;'' ``Petition
for Extension (or Renewal) of Temporary Exemption,'' both on the
document and on the outside of the envelope in which the document is
transmitted.
(9) Obligation to supply information. A person who files an
application, petition, complaint, or other request for action is under a
continuing obligation during the proceeding to provide DOE or OFE 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, complaint, or
request for action that is subsequently filed by that person with any
DOE office or OFE office.
(10) The same or related matters. In filing a petition or other
document requesting OFE action, the person must state whether, to the
best of his knowledge, the same or a related issue, act or transaction
has been or presently is being considered or investigated by a DOE
office, other Federal agency, department or instrumentality, or a State
or municipal agency.
(11) Request for confidential treatment. (i) If any person filing a
document with DOE or OFE 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 DOE or OFE not to
disclose such information, such person shall make a filing in accordance
with paragraph (b)(2) of this section. The person shall indicate in the
original document that it is confidential or contains confidential
information and may 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 in 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 a document is not
so filed, OFE may assume that there is no objection to public disclosure
of the document in its entirety, unless the person subsequently files a
claim of confidentiality prior to public disclosure of the document.
(ii) DOE or OFE retains the right to make its own determination with
regard to any claim of confidentiality.
[[Page 17]]
Notice of the decision by DOE or OFE to deny such claim, in whole or in
part, and an opportunity to respond or take other appropriate action to
avoid release shall be given to a person claiming confidentiality of
information no less than seven (7) days prior to its public disclosure.
(iii) The above provisions in paragraphs (a)(11) (i) and (ii) of
this section do not apply to information submitted on OFE forms that
contain their own instructions concerning the treatment of confidential
information.
(12) Separate applications, petitions or requests. Each application,
petition, or request for DOE or OFE action shall be submitted as a
separate document, even if the applications, petitions, or requests deal
with the same or a related issue, act, or transaction, or are submitted
in connection with the same proceeding.
(b) Number of documents to be filed. (1) A petitioner must file an
executed original and fourteen (14) copies of all exemption requests
submitted to DOE. For certification requests, an original and three (3)
copies shall be submitted.
(2) Where the petitioner requests confidential treatment of some or
all of the information submitted, an original and eleven (11) copies of
the confidential document and three (3) copies of the document with
confidential material deleted must be filed.
[46 FR 59889, Dec. 7, 1981, as amended at 47 FR 15314, Apr. 9, 1982; 54
FR 52891, Dec. 22, 1989]
Sec. 501.8 [Reserved]
Sec. 501.9 Effective date of orders or rules.
(a) When OFE issues a rule or order imposing a prohibition or
granting an exemption (or permit) under FUA, the rule or order will be
effective sixty (60) days after publication in the Federal Register,
unless it is stayed, modified, suspended or rescinded.
(b) If the appropriate State regulatory authority has not approved a
powerplant for which a petition has been filed, such exemption, to the
extent it applies to the prohibition under section 201 of FUA against
construction without the capability of using coal or another alternate
fuel, shall not take effect until all approvals required by such State
regulatory authority which relate to construction have been obtained.
[54 FR 52891, Dec. 22, 1989]
Sec. 501.10 Order of precedence.
If there is any conflict or inconsistency between the provisions of
this part and any other provisions or parts of this chapter, except for
general procedures which are unique to part 515 of this chapter, the
provisions of this part will control respect to procedure.
[54 FR 52891, Dec. 22, 1989]
Sec. 501.11 Address for filing documents.
Send all petitions, self-certifications and written communications
to the following address: Office of Fossil Energy, Office of Fuels
Programs, Coal and Electricity Division, Mail Code FE-52, 1000
Independence Avenue, SW., Washington, DC 20585.
[54 FR 52891, Dec. 22, 1989]
Sec. 501.12 Public files.
DOE will make available at the Freedom of Information reading room,
room 1E190, 1000 Independence Avenue SW., Washington, DC for public
inspection and copying any information required by statute and any
information that OFE determines should be made available to the public.
[54 FR 52891, Dec. 22, 1989]
Sec. 501.13 Appeal.
There is no administrative appeal of any final administrative action
to which this part applies.
Sec. 501.14 Notice to Environmental Protection Agency.
A copy of any proposed rule or order that imposes a prohibition,
order that imposes a prohibition, or a petition for an exemption or
permit, shall be transmitted for comments, if any, to the Administrator
and the appropriate Regional Administrator of the Environmental
Protection Agency (EPA). The Administrator of EPA shall be given the
same opportunity to comment and question as is given other interested
persons.
[54 FR 52891, Dec. 22, 1989]
[[Page 18]]
Subpart B [Reserved]
Subpart C_Written Comments, Public Hearings and Conferences During
Administrative Proceedings
Sec. 501.30 Purpose and scope.
This subpart establishes the procedures for requests for and the
conduct of public hearings; for submission of written comments; and for
requests for and conduct of conferences pursuant to an administrative
proceeding before OFE. Hearings shall be convened at the request of any
interested person, in accordance with section 701(d) of FUA, and shall
be held at a time and place to be decided by the Presiding Officer.
Sec. 501.31 Written comments.
(a) New facilities. Except as may be provided elsewhere in these
regulations, OFE shall provide a period of at least forty-five (45)
days, commencing with publication of the Notice of Acceptance of
Petition, of in the case of certification exemptions, Notice of
Acceptance and availability of Certification, in the Federal Register in
accordance with Sec. 501.63(a), for submission of written comments
concerning a petition for an exemption. Written comments shall be made
in accordance with Sec. 501.7.
(b) Existing facilities. Except as may be provided elsewhere in
these regulations, OFE shall provide a period of at least 45 days for
submission of written comments concerning a proposed prohibition rule or
order or a petition for a permit. In the case of a proposed prohibition
rule or order issued to an existing electing powerplant, OFE shall also
provide for a period of at least 45 days for submission of written
comments concerning a Tentative Staff Analysis. This period shall
commence on the day after publication of the Notice of Availability of
the Tentative Staff Analysis in the Federal Register. In the case of
prohibition order proceedings for certifying powerplants under section
301 of FUA, as amended, OFE shall provide a period of at least 45 days,
beginning the day after the Notice of Acceptance of certification is
published, for submission of written comments concerning the
certification and OFE's proposed prohibition order, and requests for
public hearings. Prohibition order proceedings under section 301, as
amended by OBRA, will have only one period of 45 days, since no
Tentative Staff Analysis will be prepared. The comment period may be
extended by OFE in accordance with Sec. 501.7. See Sec. 501.52(b) of
this part for further information with respect to the comment period.
Written comments shall be filed in accordance with Sec. 501.7.
(Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 (42
U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of 1978,
Pub. L. 95-620, 92 Stat. 3289 (42 U.S.C. 8301 et seq.); Omnibus Budget
Reconciliation Act of 1981 (Pub. L. 97-35); E.O. 12009, 42 FR 46267,
Sept. 15, 1977)
[46 FR 59889, Dec. 7, 1981, as amended at 47 FR 50848, Nov. 10, 1982; 54
FR 52892, Dec. 22, 1989]
Sec. 501.32 Conferences (other than prepetition conferences).
(a) At any time following commencement of a proceeding before OFE,
an interested person may request a conference with the staff of OFE to
discuss a petition, permit or any other issue pending before OFE. The
request for a conference should generally be in writing and should
indicate the subjects to be covered and should describe the requester's
interest in the proceeding. Conferences held after the commencement of
an administrative proceeding before OFE shall be convened at the
discretion of OFE or the Presiding Officer.
(b) When OFE convenes a conference in accordance with this section,
any person invited may present views as to the issue or issues involved.
Documentary evidence may be submitted at the conference and such
evidence, to the extent that it is not deemed to be confidential, will
be included in the administrative record. OFE will not normally have a
transcript of the conference prepared but may do so at its discretion.
(c) Because a conference is solely for the exchange of views
incident to a proceeding, there will be no formal report or findings by
OFE unless OFE in its discretion determines that the preparation of a
report or findings would be
[[Page 19]]
advisable. OFE will, however, place in the public file a record of any
conference.
Sec. 501.33 Request for a public hearing.
(a) New facilities. In the case of a petition for an exemption under
title II of FUA, any interested person may submit a written request that
OFE convene a public hearing in accordance with section 701 of FUA no
later than forty-five (45) days after publication of either the Notice
of Acceptance of a petition, or in the case of a certification
exemption, the publication of the Notice of Acceptance of Certification.
This time period may be extended at the discretion of OFE.
(b) Existing powerplants. In the case of a petition for an exemption
from a prohibition imposed by a final rule or order issued by OFE to an
electing powerplant under former sections of title III of FUA or a
petition for a permit under Sec. 504.1, any interested person may
submit a written request that OFE convene a public hearing in accordance
with section 701 of FUA within 45 days after the notice of the filing of
a petition is published in the Federal Register. In the case of a
proposed prohibition rule or order issued to an electing powerplant
under former section 301, the 45 day period in which to request a public
hearing shall commence upon the publication of the Notice of
Availability of the Tentative Staff Analysis. In the case of a proposed
prohibition order to be issued to certifying powerplants under section
301 of FUA, as amended, the 45 day period in which to request a public
hearing commences upon publication of the Notice of Acceptance of
Certification. This time limit may be extended at the discretion of OFE
in accordance with Sec. 501.7.
(c) Contents of request. A request for a public hearing must be in
writing and must include a description of the requesting party's
interest in the proceeding and a statement of the issues involved. The
request should, to the extent possible, identify any witnesses that are
to be called, summarize the anticipated testimony to be given at the
hearing, and outline questions that are to be posed.
(Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 (42
U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of 1978,
Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.); Omnibus Budget
Reconciliation Act of 1981 (Pub. L. 97-35); E.O. 12009, 42 FR 46267,
Sept. 15, 1977)
[46 FR 59889, Dec. 7, 1981, as amended at 47 FR 50848, Nov. 10, 1982; 54
FR 52892, Dec. 22, 1989]
Sec. 501.34 Public hearing.
(a) A public hearing under this subsection is for the purpose of
insuring that all issues are fully and properly developed, but is not a
formal adjudicatory hearing subject to the provisions of 5 U.S.C. 554
and 556.
(b) Opportunity to be heard at a public hearing. (1) Any interested
person, may request, and OFE will provide, an opportunity to present
oral or written data, views and arguments at a public hearing on any
proposed prohibition rule or order, or on any petition for an exemption
or permit. An interested person may file a request to be listed as a
party to a hearing on the service list prepared by the Presiding Officer
pursuant to Sec. 501.34(d) of this part.
(2) Participants at the public hearing will have an opportunity to
present oral or written data, views and arguments.
(3) A request for a public hearing may be withdrawn by the requestor
at any time. If other persons have requested to participate as parties
in the public hearing, OFE may cancel the hearing only if all parties
agree to cancellation. OFE will give notice, whenever possible, in the
Federal Register of the cancellation of any hearings for which there has
been prior notice.
(c) Presiding Officer. OFE will appoint a Presiding Officer to
conduct the public hearing.
(d) Powers of the Presiding Officer. The Presiding Officer is
responsible for orderly conduct of the hearing and for certification of
the record of the public hearing. The Presiding Officer will not prepare
any recommended findings, conclusions, or any other recommendations for
disposition of a particular
[[Page 20]]
case, except those of a procedural nature. The Presiding Officer has,
but is not limited to the following powers:
(1) Administer oaths, affirmations and protective orders;
(2) Issue administrative subpoenas and rule on motions to modify or
withdraw subpoenas that he has issued;
(3) Rule on questions as to relevance and materiality of evidence;
(4) Regulate the course of the public hearing;
(5) Hold conferences for the simplification of issues by consent of
the parties;
(6) Require submission of evidence in writing where appropriate;
(7) Establish service lists;
(8) Dispose of procedural requests and similar matters; and
(9) Take other actions authorized by these rules.
The Presiding Officer may also limit the number of witnesses to be
presented by any party and may impose reasonable time limits for
testimony. The Presiding Officer shall establish and maintain a service
list that contains the names and addresses of all parties to the OFE
proceeding. At the time the Presiding Officer certifies the record, he
will provide the staff of OFE with an index of the issues addressed in
the record.
(e) Notice. OFE will convene a public hearing only after publishing
a notice in the Federal Register that states the time, place and nature
of the public hearing.
(f) Opportunity to question at the public hearing. At any public
hearing requested pursuant to paragraph (b) of this section, with
respect to disputed issues of material fact, OFE will provide any
interested person an opportunity to question:
(1) Other interested persons who make oral presentations;
(2) Employees and contractors of the United States who have made
written or oral presentations or who have participated in the
development of the proposed rule or order or in the consideration of the
petition for an exemption or permit; and
(3) Experts and consultants who have provided information to any
person who makes an oral presentation and which is contained in or
referred to in such presentation.
(g) OFE encourages persons who wish to question Government witnesses
to submit their questions at least ten (10) days in advance of the
hearing.
(h) The Presiding Officer will allow questions by any interested
person to be asked of those making presentations or submitting
information, data, analyses or views at the hearing. The Presiding
Officer may restrict questioning if he determines that such questioning
is duplicative or is not likely to result in a timely and effective
resolution of issues pending in the administrative proceeding for which
the hearing is being conducted.
(i) The Presiding Officer or OFE may exercise discretion to control
a hearing by denying, temporarily or permanently, the privilege of
participating in a particular OFE hearing if OFE finds, for example,
that a person:
(1) Has knowingly made false or misleading statements, either orally
or in writing;
(2) Has knowingly filed false affidavits or other writings;
(3) Lacks the specific authority to represent the person seeking an
OFE action; or
(4) Has disrupted or is disrupting a hearing.
(j) Evidence. (1) The Presiding Officer is responsible for orderly
submission of information, data, materials, views or other evidence into
the record of the public hearing. The Presiding Officer may exclude any
evidence that is irrelevant, immaterial or unduly repetitious. Judicial
rules of evidence do not apply.
(2) Documentary material must be of a size consistent with ease of
handling, transportation and filing, and a reasonable number of copies
should be made available at the public hearing for the use of interested
persons. An original and fourteen (14) copies shall be furnished to the
Presiding Officer and one copy to each party listed on the service list.
Large exhibits that are used during the hearing must be provided on no
larger than 11\1/2\ x 14 legal size paper if they
are to be submitted into the hearing record.
(k) Hearing record. OFE will have a verbatim transcript made of the
public
[[Page 21]]
hearing. The hearing record shall remain open for a period of fourteen
(14) days following the public hearing, unless extended by OFE, during
which time the participants at the hearing may submit additional written
statements which will be made part of the administrative record and will
be served by the Presiding Officer upon those parties listed on the
service list. OFE may also request additional information, data or
analysis following the hearing in order to resolve disputed issues in
the record. If OFE receives or obtains any relevant information or
evidence that is placed in the record after the close of the public
hearing or comment period, it will so notify all participants, and allow
an additional fourteen (14) days for submission of evidence in rebuttal.
In addition, OFE may, in its discretion, re-open the hearing at the
request of a party or participant, to permit further rebuttal of
evidence or statements submitted to OFE and made part of the hearing
record after the close of the hearing. The transcript, together with any
written comments submitted in the course of the proceeding, will be made
part of the record available for public inspection and copying at the
OFE Public Information Office, as provided in Sec. 501.12.
Sec. 501.35 Public file.
(a) Contents. The public file shall consist of the rule, order, or
petition, with supporting data and supplemental information, and all
data and information submitted by interested persons. Materials which
are claimed by any party to be exempt from public disclosure under the
Freedom of Information Act (5 U.S.C. 552) shall be excised from the
public file provided OFE has made a determination that the material is
confidential in accordance with Sec. 501.7(a)(11) of this part.
(b) Availability. The public file shall be available for inspection
at room 1E190, 1000 Independence Avenue SW., Washington, DC. Photocopies
may be made available, on request. The charge for such copies shall be
made in accordance with a written schedule.
[46 FR 59889, Dec. 7, 1981, as amended at 54 FR 52892, Dec. 22, 1989]
Subpart D_Subpoenas, Special Report Orders, Oaths and Witnesses
Sec. 501.40 Issuance.
(a) Authority. As authorized by section 711 of FUA and section 645
of the DEOA, the Administrator, his duly authorized agent or a Presiding
Officer may, in accordance with 10 CFR 205.8, sign, issue, and serve
subpoenas; issue special report orders (SRO); administer oaths and
affirmations; take sworn testimony, compel attendance of and sequester
witnesses; control the dissemination of any record of testimony taken
pursuant to this section; and subpoena and reproduce books, papers,
correspondence, memoranda, contracts, agreements, or other relevant
records of tangible evidence including, but not limited to, information
retained in computerized or other automated systems in the possession of
the subpoenaed person.
(b) Petition to withdraw or modify. Prior to the time specified for
compliance in the subpoena or SRO, the person to whom the subpoena or
SRO is directed may apply for its withdrawal or modification as provided
in 10 CFR 205.8, except that if the subpoena or SRO is issued by a duly
appointed Presiding Officer, the request to withdraw or modify must be
addressed to that Presiding Officer, and its grant or denial will be
decided by him.
Subpart E_Prohibition Rules and Orders
Sec. 501.50 Policy.
Except in conjunction with a prohibition order requested by the
intended recipient, OFE shall not propose to prohibit or prohibit by
rule or order the use of petroleum or natural gas either as a primary
energy source or in amounts in excess of the minimum amount necessary to
maintain reliability of operation consistent with reasonable fuel
efficiency in an existing installation unless and until OFE adopts rules
establishing regulatory requirements governing the issuance of such
orders and rules in accordance
[[Page 22]]
with the applicable procedural and substantive requirements of law.
(Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 (42
U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of 1978,
Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.); Omnibus Budget
Reconciliation Act of 1981 (Pub. L. 97-35); E.O. 12009, 42 FR 46267,
Sept. 15, 1977)
[47 FR 50848, Nov. 10, 1982]
Sec. 501.51 Prohibitions by order--electing powerplants.
(a) OFE may prohibit by order the use of petroleum or natural gas as
a primary energy source or in amounts in excess of the minimum amount
necessary to maintain reliability of operation consistent with
reasonable fuel efficiency in an electing powerplant, if:
(1) That facility has not been identified as a member of a category
subject to a final rule at the time of the issuance of such order; and
(2) The requirements of Sec. 504.6 have been met.
(b) Notice of order and public participation. (1) OFE may hold a
conference with the proposed order recipient prior to issuing the
proposed order.
(2) Pursuant to section 701 of FUA, prior to the issuance of a final
order to an electing powerplant, OFE shall publish a proposed order in
the Federal Register together with a statement of the reasons for the
order. In the case of a proposed order that would prohibit the use of
petroleum or natural gas as a primary energy source, the finding
required by former section 301(b)(1) of the Act shall be published with
such proposed order.
(3) OFE shall provide a period for the submission of written
comments of at least three months after the date of the proposed order.
During this period, the recipient of the proposed order and any other
interested person must submit any evidence that they have determined at
that time to support their respective positions as to each of the
findings that OFE is required to make under section 301(b) of the Act. A
proposed order recipient may submit additional new evidence at any time
prior to the close of the public comment period which follows
publication of the Tentative Staff Analysis or prior to the close of the
record of any public hearing, whichever occurs later. A request by the
proposed order recipient for an extension of the three-month period may
be granted at OFE's discretion.
(4) Subsequent to the end of the comment period, OFE will issue a
notice of whether OFE intends to proceed with the prohibition order
proceeding.
(5) An owner or operator of a facility that may be subject to an
order may demonstrate prior to issuance of a final prohibition order
that the facility would qualify for an exemption if the prohibition had
been established by rule. OFE will not delay the issuance of a final
prohibition order or stay the effective date of such an order for the
purpose of determining whether a proposed order recipient qualifies for
a particular exemption unless the demonstration or qualification is
submitted prior to or during the second three-month comment period,
commencing after issuance of a notice of intention to proceed, or unless
materials submitted after the period (i) could not have been submitted
during the period through the exercise of due diligence, (ii) address
material changes in fact or law occurring after the close of the period,
or (iii) consist of amplification or rebuttal occasioned by the
subsequent course of the proceeding. A request by the proposed order
recipient for an extension of this time period may be granted at OFE's
discretion.
(6) Subsequent to the end of the second three (3) month period, OFE
will, if it intends to issue a final prohibition order, prepare and
issue a Notice of Availability of a Tentative Staff Analysis. Interested
persons wishing a hearing must request a hearing within forty-five (45)
day after issuance of the Notice of Availability of the Tentative Staff
Analysis. During this forty-five (45) days period, interested persons
may also submit written comments on the Tentative Staff Analysis.
(7) If a hearing has been requested, OFE shall provide interested
persons with an opportunity to present oral data, views and arguments at
a public hearing held in accordance with subpart C of this part. The
hearing will consider the findings which OFE must make in order to issue
a final prohibition order and any exemption for which the proposed order
recipient submitted
[[Page 23]]
its demonstration in accordance with paragraph (b)(5) of this section.
(8) Upon request by the recipient of the proposed prohibition order,
the combined public comment periods provided for in this section may be
reduced to a minimum of forty-five (45) days from the time of
publication of the proposed order.
(9) OFE may terminate a prohibition order proceeding at any time
prior to the date upon which a final order shall become effective.
Should OFE terminate the proceeding, it will notify the proposed order
recipient, and publish a notice in the Federal Register.
(c) Decision to issue a final order. (1) OFE will base its
determination to issue an order on consideration of the whole record or
those parts thereof cited by a party and supported by and in accordance
with reliable, probative and substantial evidence.
(2) OFE shall include in the final order a written statement of the
pertinent facts, a statement of the basis upon which the final order is
issued, a recitation of the conclusions regarding the required findings
and qualifications for exemptions. The final order shall state the
effective date of the prohibition contained therein. If it is
demonstrated that the facility would have been granted a temporary
exemption, the effective date of the prohibition contained in the final
order shall be delayed until such time as the temporary exemption would
have terminated. If it is demonstrated that a facility will need a
period of time to comply with the final order, the effective date of the
prohibition contained in the final order may be delayed, in OFE's
discretion, so as to allow an order recipient to comply with the final
order.
(3) OFE will enclose with a copy of the final order, where
appropriate, a schedule of steps that should be taken by a stated date
(a compliance schedule) to ensure that the affected facility will be
able to comply with the prohibitions stated in the order by the
effective date of the prohibition contained in the final order. The
compliance schedule may require the affected person to take steps with
regard to a unit 60 days after service of the final order.
(4) A copy of the final order and a summary of the basis therefore
will be published in the Federal Register. The order will become
effective 60 days after publication in the Federal Register.
(d) Request for order. (1) A proceeding for issuance of a
prohibition order to a specific unit may be commenced by OFE, in its
sole discretion, in response to a request for an order filed by the
owner or operator of a facility.
(2) A petition requesting OFE to commence a prohibition order
proceeding should include the following information for all units to be
covered by the prohibition order:
(i) A statement of the reasons the owner or operator is seeking the
issuance of a prohibition order; and
(ii) Sufficient information for OFE to make the findings required by
section 301(b) of FUA.
(3) If OFE determines to accept the request, OFE shall publish a
proposed order in the Federal Register together with a statement of the
reasons for the order.
(Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 (42
U.S.C. 7101 et seq.); Energy Supply and Environmental Coordination Act
of 1974; Pub. L. 93-319, as amended by Pub. L. 94-163, Pub. L. 95-70,
(15 U.S.C. 719 et seq.); Powerplant and Industrial Fuel Use Act of 1978,
Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.); Omnibus Budget
Reconciliation Act of 1981, (Pub. L. 97-35); E.O. 12009, 42 FR 46267,
Sept. 15, 1977)
[46 FR 59889, Dec. 7, 1981, as amended at 47 FR 17042, Apr. 21, 1982; 47
FR 50848, Nov. 10, 1982; 54 FR 52892, Dec. 22, 1989]
Sec. 501.52 Prohibitions by order--certifying powerplants.
(a) OFE may prohibit by order the use of petroleum or natural gas as
a primary energy source or in amounts in excess of the minimum amount
necessary to maintain reliability of operation consistent with
maintaining reasonable fuel efficiency in an existing powerplant if the
owner or operator of the powerplant certifies, and OFE concurs in such
certification in accordance with the requirements of Sec. Sec. 504.5,
504.6 and 504.8.
(b) Notice of order and participation. (1) OFE may hold a conference
with the
[[Page 24]]
proposed order recipient, at the recipient's election, prior to issuing
the proposed order. The conference may resolve any questions regarding
the certification required by section 301 of the Act, as amended, and
Sec. Sec. 504.5, 504.6, and 504.8, and OFE's review and concurrence
therein.
(2) Pursuant to section 701(b) of FUA, prior to the issuance of a
final order to a certifying powerplant owner or operator, OFE must
publish in the Federal Register, a proposed prohibition order stating
the reasons for such order. OFE will review all of the information
submitted by a proposed order recipient within 60 days after receipt by
OFE. If the certification is complete, OFE will, within 30 days after
the end of the 60 day review period, publish in the Federal Register a
Notice of Acceptance of certification together with a proposed
prohibition order stating therein the reasons for such order. This
commences the prohibition order proceeding. If OFE does not believe it
is able to concur in the certification, OFE shall notify the proposed
order recipient and shall publish a Notice of Proposed Non-Concurrence
in the Federal Register within 30 days after the end of the 60 day
review period. If OFE finds that the certification with compliance
schedule is incomplete, OFE will notify the proposed prohibition order
recipient as to the deficiencies, and provide an additional period of 30
days for the certification to be amended and resubmitted. If a complete
certification is not submitted within this period, the proceeding shall
be terminated in accordance with Sec. 501.52(b)(5). OFE will notify the
proposed order recipient and other parties to the proceeding of the
termination and publish a notice in the Federal Register. OFE, on its
own motion, may extend any period of time by publishing a notice to that
effect in the Federal Register.
(3) The publication of the Notice of Acceptance or Notice of
Proposed Non-Concurrence commences a period of 45 days during which
interested persons may submit written comments or request a public
hearing. During this period, the recipient of the proposed order and any
other interested person may submit any evidence that they have available
relating to the proposed order, the certification or the concurrence
that OFE must make. A proposed order recipient may submit additional new
evidence at any time prior to the close of the public comment period
which follows the commencement of the proceeding or prior to the close
of the record of any public hearing, whichever occurs later. A request
for an extension of the 45 day period may be granted at OFE's
discretion. In the case of a Notice of Acceptance, as set forth in Sec.
504.9, no final prohibition order can be issued until any necessary
environmental review pursuant to the National Environmental Policy Act
of 1969, 42 U.S.C 4321 et seq. (NEPA) has been completed. Upon
completion of the NEPA review and unless OFE determines on the basis of
the record of the proceeding that the certification fails to meet the
requirements of Sec. Sec. 504.5, 504.6, and 504.8, OFE shall publish a
final prohibition order, together with the information required by
paragraph (c) of this section. In the case of a Notice of Proposed Non-
Concurrence, at the end of the 45 day comment period, OFE will notify
the proposed order recipient and parties to the proceeding and publish a
final Notice of Non-Concurrence in the Federal Register, if OFE
determines it cannot concur in the certification based upon additional
information submitted during the proceeding. If, at the end of the 45
day period, OFE believes it can concur in the certification, OFE will
notify the proposed order recipient and parties to the proceeding and
publish a Notice of Acceptance followed by a new 45 day comment period.
(4) If a hearing has been requested, OFE shall provide interested
persons with an opportunity to present oral data, views and arguments at
a public hearing held in accordance with subpart C of this part. The
hearing may consider, among other matters, the sufficiency of the
certification of the owner or operator of the powerplant required by
section 301 of FUA, as amended, and Sec. Sec. 504.5, 504.6, and 504.8
of these regulations.
(5) OFE may terminate a prohibition order proceeding at any time
prior to the date upon which a final prohibition order is issued
whenever OFE believes,
[[Page 25]]
from any information contained in the record of the proceeding, that the
certification does not meet the requirements of section 301 of the Act,
as amended, or Sec. Sec. 504.5, 504.6, and 504.8 of these regulations.
If OFE terminates the proceeding or publishes a final Notice of Non-
Concurrence, or the proposed order recipient fails to submit a complete
certification, OFE will notify the proposed order recipient and other
parties to the proceeding and publish a notice in the Federal Register.
In such event, the proposed order recipient may submit a new
certification under any provision of section 301 of the Act, as amended,
at a later date. Specifically, a Notice of Non-Concurrence under either
section 301(b) or 301(c) shall not affect a proposed order recipient's
ability to make a certification under the other subsection.
(c) Record and decision to issue a final order. (1) OFE will base
its determination to issue an order on consideration of the whole record
or those parts thereof cited by a party and supported by and in
accordance with reliable, probative and substantial evidence.
(2) OFE shall include in the final order a written statement of the
basis upon which the final order is issued, and its concurrence in the
required certification. A copy of the final order and a summary of the
basis therefor will be published in the Federal Register. While the
prohibition order is final for purposes of judicial review under section
702 of FUA, the prohibitions contained in the final order shall not
become effective for purposes of amendment under section 301(d) of FUA,
as amended, and Sec. 501.52(d) of these regulations until the effective
date of the prohibitions stated in the order, or, where the order is
subject to one or more conditions subsequent listed in the prohibition
order compliance schedule, until all its conditions are met.
(d) Amendment to certifications under Sec. Sec. 504.5 and 504.6.
The proposed prohibition order recipient may amend its compliance
schedule under Sec. 504.5(d), or its certification under section 301 of
FUA, as amended, and Sec. Sec. 504.5, 504.6 and 504.8 of these
regulations in order to take into account changes in relevant facts and
circumstances at any time prior to the effective date of the
prohibitions contained in the final prohibition order.
(e) Rescission of prohibition orders. The rescission or modification
of final prohibition orders issued to existing electric powerplants will
be governed by the procedure in Sec. 501.101 of these regulations.
(Approved by the Office of Management and Budget under control number
1903-0077)
(Department of Energy Organization Act, Pub. L. 95-91, 42 U.S.C. 7101 et
seq.; Energy Supply and Environmental Coordination Act of 1974, Pub. L.
93-319, as amended by Pub. L. 94-163, Pub. L. 95-70, and Pub. L. 95-620,
15 U.S.C. 719 et seq.; Powerplant and Industrial Fuel Use Act of 1978,
Pub. L. 95-620, as amended by Pub. L. 97-35, 42 U.S.C. 8301 et seq.;
Omnibus Budget Reconciliation Act of 1981, (Pub. L. 97-35))
[47 FR 17042, Apr. 21, 1982]
Sec. Sec. 501.53-501.56 [Reserved]
Subpart F_Exemptions and Certifications
Sec. 501.60 Purpose and scope.
(a) (1) If the owner or operator plans to construct a new baseload
powerplant and the unit will not be in compliance with the prohibition
contained in section 201(a) of FUA, this subpart establishes the
procedures for filing a petition requesting a temporary or permanent
exemption under, respectively, sections 211 and 212 of FUA.
(2) Self-certification alternative. If the owner or operator plans
to construct a new baseload powerplant not in compliance with the
prohibitions contained in section 201(a) of FUA, this subpart
establishes the procedures for the filing of a self-certification under
section 201(d) of FUA.
(3) If the petitioner owns, operates or controls a new powerplant,
this subpart provides the procedures for filing a petition requesting
extension of a temporary exemption granted under sections 211 or 311 of
FUA.
(4) If the petitioner owns, operates or controls a new or existing
powerplant or MFBI, this subpart provides the procedures for filing a
petition requesting extension of a temporary exemption granted under
section 211 or section 311 of FUA.
[[Page 26]]
(b) If the petition is for an extension of a temporary exemption,
the petitioner must apply for this extension at least (90) days prior to
the expiration of the temporary exemption.
(Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 (42
U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of 1978,
Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.); Omnibus Budget
Reconciliation Act of 1981, Pub. L. 97-35; E.O. 12009, 42 FR 46267,
Sept. 15, 1977)
[46 FR 59889, Dec. 7, 1981, as amended at 47 FR 50849, Nov. 10, 1982; 54
FR 52892, Dec. 22, 1989]
Sec. 501.61 Certification contents.
(a) A self-certification filed under section 201(d) of FUA should
include the following information:
(1) Owner's name and address.
(2) Operator's name and address.
(3) Plant location and address.
(4) Plant configuration (combined cycle, simple cycle, topping
cycle, etc.)
(5) Design capacity in megawatts (MW).
(6) Fuel(s) to be used by the new facility.
(7) Name of utility purchasing electricity from the proposed
facility and percent of total output to be sold.
(8) Date unit is expected to be placed in service.
(9) Certification by an officer of the company or his designated
representative certifying that the proposed facility:
(i) Has sufficient inherent design characteristics to permit the
addition of equipment (including all necessary pollution devices)
necessary to render such electric powerplant capable of using coal or
another alternate fuel as its primary energy source; and
(ii) Is not physically, structurally, or technologically precluded
from using coal or another alternate fuel as its primary energy source.
(b) A self-certification filed pursuant to Sec. 501.61(a) shall be
effective to establish compliance with the requirement of section 201(a)
of FUA as of the date filed.
(c) OFE will publish a notice in the Federal Register within fifteen
days reciting that the certification has been filed. Publication of this
notice does not serve to commence a public comment period.
(d) OFE will notify the owner or operator within 60 days if
supporting documentation is needed to verify the certification.
[54 FR 52892, Dec. 22, 1989]
Sec. 501.62 Petition contents.
(a) A petition for exemption should include the following
information:
(1) The name of the petitioner;
(2) The name and location of the unit for which an exemption is
being requested;
(3) The specific exemption(s) being requested; and
(4) The name, address, and telephone number of the person who can
supply further information.
(b) Table of contents. Include only those sections contained in the
petition.
(c) Introduction. Include the following:
(1) Description of the facility under consideration;
(2) Description of the unit and fuel the petitioner proposes to burn
in that unit, including the purpose of and need for the unit; and
(3) Description of the operational requirements for the unit,
including size (capacity, input and output in millions of Btu's per
hour), output in terms of product or service to be supplied, fuel
capability, and operating mode, including capacity factor, utilization
factor, and fluctuations in the load.
(d) General requirements. The evidence required under part 503
subpart B for each exemption(s) for which the petitioner is applying:
(1) No alternate power supply (Sec. 503.8):
(2) Use of mixtures (Sec. 503.9);
(3) Alternative site (Sec. 503.11);
(4) Compliance Plan (Sec. 503.12);
(5) Environmental impact analysis (Sec. 503.13);
(6) Fuels search (Sec. 503.14).
(e) Specific evidence. Evidence required for each exemption,
segregated by exemption (part 503 subparts C and D).
(f) References. (1) Specify the reports, documents, experts, and
other sources consulted in compiling the petition. Cite these sources in
accordance with acceptable documentation standards,
[[Page 27]]
and indicate the part of the petition to which they apply. If the source
is unusual or little known, briefly describe its contents.
(2) Identify at the end of each section of the petition any
information or any statement based, in whole or in part, on information
or principles which, to petitioner's knowledge, represent significant
innovations to or departures from generally accepted facts or
principles.
(g) Appendices. Include in the appendices material which the
petitioner believes substantiates any analyses fundamental to the
petition, materials prepared in connection with it, and any other
documents, studies, or analyses which are believed to be relevant to the
decision to be made. Also, include in the appendices copies of any forms
submitted as part of the petition.
(h) List of preparers. List the names with the qualifications and
professional credentials of the principal contributors to the
preparation of the petition. Indicate the sections or subject matters
for which each principal contributor was responsible.
(i) Incorporation by reference. Pertinent information may be
incorporated into the petition by reference when this can be done
without impeding agency and public review. Referenced materials must be
specifically identified and their contents briefly described in the
petition. To incorporate by reference, the material must be submitted
with the petition, or if previously submitted, the office to which it
was submitted must be identified in the petition. The petitioner cannot
incorporate by reference material based on proprietary data not
available to OFE for review.
(Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 (42
U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of 1978,
Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.); Omnibus Budget
Reconciliation Act of 1981, Pub. L. 97-35; E.O. 12009, 42 FR 46267,
Sept. 15, 1977)
[46 FR 59889, Dec. 7, 1981, as amended at 47 FR 50849, Nov. 10, 1982]
Sec. 501.63 Notice of the commencement of an administrative
proceeding on an exemption petition.
(a)(1) When a petition is accepted, OFE will publish in the Federal
Register a Notice of Acceptance, or, in the case of a certification
exemption, a Notice of Acceptance and Availability of Certification,
signifying that an exemption proceeding has commenced. The notice will
include a summary of the exemption petition, and publication will
commence a public comment period of no less than forty-five (45) days
during which interested parties may file written comments concerning the
petition. In the case of a certification exemption, interested persons
may request a public hearing during this period, pursuant to Sec.
501.33.
(2) OFE will notify the appropriate State agency having apparent
primary authority to permit or regulate the construction or operation of
a powerplant that an exemption proceeding has commenced and will consult
with this agency to the maximum extent practicable. Copies of all
accepted petitions also will be forwarded to EPA, as provided in Sec.
501.14(a).
(b) In processing an exemption petition, OFE shall comply with the
requirements of the National Environmental Policy Act of 1969 (NEPA),
the Council on Environmental Quality's implementing regulations, and the
DOE guidelines implementing those regulations (45 FR 20694, Mar. 28,
1980). Compliance with NEPA may involve the preparation of (1) an
environmental impact statement (EIS) evaluating the grant or denial of
an exemption petition, (2) an environmental assessment (EA), or (3) a
memorandum to the file finding that the grant of the requested petition
would not be considered a major federal action significantly affecting
the quality of the human environment. If an EIS is required, OFE will
publish in the Federal Register a Notice of Intent (NOI) to prepare an
EIS as soon as practicable after commencement of the proceeding. A
public meeting may be held pursuant to 40 CFR 1501.7 to solicit comments
or suggestions on the structure and content of the EIS.
[46 FR 59889, Dec. 7, 1981, as amended at 54 FR 52893, Dec. 22, 1989]
[[Page 28]]
Sec. 501.64 Publication of notice of availability of tentative
staff analysis.
OFE will publish in the Federal Register a Notice of the
Availability of Tentative Staff Analysis for the noncertification
temporary public interest exemption, for noncertification environmental
exemptions, and for a cogeneration exemption based on the public
interest. OFE will provide a public comment period of at least fourteen
(14) days from the date of publication during which interested persons
may make written comments and request a public hearing.
Sec. 501.65 Publication of notice of availability of draft EIS.
A Notice of Availability of any draft EIS will be published in the
Federal Register and comments thereon will also be solicited. Interested
persons may request a hearing on any draft EIS. Such hearing must be
requested within thirty (30) days of publication of the Notice of
Availability of the draft EIS.
[54 FR 52893, Dec. 22, 1989]
Sec. 501.66 OFE evaluation of the record, decision and order.
(a) The administrative record in a proceeding under this part will
consist of the proposed prohibition order and/or petition and related
documents, all relevant evidence presented at the public hearing, all
written comments, and any other information in the possession of OFE and
made a part of the public record of the proceeding. OFE will base its
determination to issue a rule or order on consideration of the whole
record, or those parts thereof cited by a party and supported by
reliable, probative, and substantial evidence.
(b) OFE may investigate and corroborate any statement in any
petition, document, or public comments submitted to it. OFE also may use
any relevant facts it possesses in its evaluation and may request
submissions from third persons relevant to the petition or other
documents. OFE also may request additional information, data, or
analyses following a public hearing, if any, if this information is
necessary to resolve disputed issues in the record. Any relevant
information received by OFE following the hearing that is not declared
to be confidential under Sec. 501.7(a)(11) shall be made part of the
public record with opportunity provided for rebuttal.
(c) OFE will notify all participants if, after the close of any
public hearing or comment period, it receives or obtains any relevant
information or evidence. Participants may respond to such information or
evidence in writing within fourteen (14) days of such notification. If
OFE finds that the additional information or evidence relates to
material issues of disputed fact and may significantly influence the
outcome of the proceeding, OFE shall reopen the hearing on the issue or
issues to which the additional information or evidence relates.
Sec. 501.67 Petition redesignations.
OFE, with the petitioner's approval, will redesignate an exemption
petition if the petitioner qualifies for an exemption other than the one
originally requested, even though he may not qualify for the specific
exemption originally requested, or be entitled to the full exemption
period provided by requested exemption. OFE shall give public notice of
any redesignation of an exemption petition, and where a public hearing
has been requested notice shall be given at least thirty (30) days prior
to such hearing.
Sec. 501.68 Decision and order.
(a)(1) OFE shall issue an order either granting or denying the
petition for an exemption or permit within six (6) months after the end
of the period for public comment and hearing applicable to any petition.
(2) OFE may extend the six (6) month period for decision to a date
certain by publishing notice in the Federal Register, and stating the
reasons for such extension.
(3) OFE will publish a final EIS at least thirty (30) days prior to
take issuance of the final order in all cases where an EIS is required.
(b)(1) OFE shall serve a copy of the order granting or denying a
petition for exemption to the petitioner and all persons on the service
list in cases involving a public hearing.
[[Page 29]]
(2) OFE shall publish any order granting or denying a petition under
this subpart in the Federal Register together with a statement of the
reasons for the grant or denial.
(c)(1) Any order granting or denying a petition for exemption shall
be based upon consideration of the whole record or those parts thereof
cited by a party and supported by, and in accordance with, reliable,
probative and substantive evidence.
(2) The denial of a petition for exemption shall be without
prejudice to the petitioner's right to submit an amended petition. OFE
may, however, reject the amended petition if it is not materially
different from the denied petition.
(d) OFE may design any terms and conditions included in any
temporary exemption issued or extended under section 211 of FUA, to
ensure, among other things, that upon expiration of the exemption the
persons and powerplant covered by the exemption will comply with the
applicable prohibitions under FUA. For purposes of the provision, the
subsequent grant of a permanent exemption to the subject unit shall be
deemed compliance with applicable prohibitions.
(Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 (42
U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of 1978,
Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.); Omnibus Budget
Reconciliation Act of 1981, Pub. L. 97-35; E.O. 12009, 42 FR 46267,
Sept. 15, 1977)
[46 FR 59889, Dec. 7, 1981, as amended at 47 FR 50849, Nov. 10, 1982; 54
FR 52893, Dec. 22, 1989]
Sec. 501.69 Judicial review.
Any person aggrieved by any order issued by OFE under this subpart,
must file, within sixty (60) days of publication of the final order in
the Federal Register, a petition for judicial review in the United
States Court of Appeals for the Circuit wherein he resides, or has his
principal place of business. Exhaustion of administrative remedies for
purposes of judicial review does not require filing a petition pursuant
to subpart G for modification or rescission of the order to be reviewed.
Subpart G_Requests for Modification or Rescission of a Rule or Order
Sec. 501.100 Purpose and scope.
(a) Anyone may request that OFE commence a rulemaking proceeding
pursuant to 5 U.S.C. 553(e); however, this subpart provides the
procedures to be followed by--
(1) An interested person seeking the modification or rescission of a
prohibition by rule applicable to a new facility;
(2) An owner or operator of a facility named in a prohibition by
rule requesting the modification or rescission of that rule; or
(3) An owner or operator subject to an exemption order or a specific
prohibition imposed by order requesting the modification or a rescission
of that order.
(b) OFE also may commence a modification or rescission proceeding on
its own initiative.
Sec. 501.101 Proceedings to modify or rescind a rule or order.
(a) In response to a request duly filed by an interested person, OFE
may commence a proceeding to modify or rescind a rule or order. If OFE
determines that a request to modify or rescind a rule or order does not
warrant commencement of a proceeding, it will deny the request and issue
a brief statement of the reason(s) for the denial.
(b) A request for modification or rescission of a rule or order must
comply with the requirements of Sec. 501.7 and must be filed at the
address set forth in Sec. 501.11.
(c) Notice of the request for modification or rescission of an order
must be given by the requester to each party to the original proceeding
that resulted in the issuance of the original order for which
modification or rescission is sought. If the number of parties to the
original proceeding is too large to allow actual notice at a reasonable
cost or within a reasonable time, a requester may ask that OFE give
notice to the parties by publication in the Federal Register; however,
this alternate notice does not bind OFE to
[[Page 30]]
commence a proceeding, if it subsequently determines that the request is
not warranted.
(d) If OFE determines to grant a request to commence a proceeding to
rescind or modify a rule or order, or OFE on its own initiative,
commences a proceeding for the modification or rescission of a rule or
order, it will give notice, either by service of a written notice or by
oral communication (which communication must be promptly confirmed in
writing) to each person upon whom the order was served that OFE proposes
to modify or rescind, or, alternatively, by publication of notice in the
Federal Register. OFE will give a reasonable period of time for each
person notified to file a written response.
(e)(1) A copy of any written comments submitted to OFE under this
subpart by a party to the original proceeding must also be sent to the
requester. The party submitting such comments must certify to OFE that
he has sent a copy of such comments to the requester.
(2) OFE may notify other persons participating in the proceeding of
the comments and provide an opportunity for those notified to respond.
(f) A request for modification or rescission of a rule or order must
contain a complete statement of all facts relevant to the action sought.
The request must also include the names and addresses of all reasonably
ascertainable persons who will be affected. Pertinent provisions
contained in any documents believed to support a request may be briefly
described, however, OFE reserves the right to obtain copies of any
significant documents that will assist in making a determination on the
merits of a request. The request must identify the specific order or
rule for which modification or rescission is sought. A request should
also indicate whether an informal conference will facilitate OFE's
determination to commence, or not to commence a proceeding, or will
assist OFE in making any determinations on material issues raised by the
request.
(g) A decision by OFE to commence a proceeding under this subpart
does not entitle the requester to a public hearing on the request for
modification or rescission. A public hearing may be held, however, if,
in its discretion, OFE considers that a public hearing will advance its
evaluation of the request.
Sec. 501.102 OFE evaluation of the record, decision and order for
modification or rescission of a rule or order.
(a) OFE will consider the entire administrative record in its
evaluation of the decision and order for modification or rescission of a
rule or order. OFE may investigate and corroborate any statement in the
petition or related documents and may utilize in its evaluation any
relevant facts obtained by its investigations. OFE may solicit or accept
submissions from third persons relevant to any request under this
subpart and all interested persons will be afforded an opportunity to
respond to these submissions. OFE may, in its discretion and on its own
initiative, convene a conference, if it considers that a conference will
advance its evaluation of the request.
(b) Criteria. Except where modification or rescission of a rule or
order is initiated by OFE, OFE's decision to rescind or modify a rule or
order will be based on a determination that there are significantly
changed circumstances with respect to the applicability of a particular
prohibition or exemption to the requester. OFE believes that there may
be ``significantly changed circumstances'', if:
(1) Significant material facts are subsequently discovered which
were not known and could not have been known to the petitioner or to OFE
at the time of the original proceeding;
(2) A law, regulation, interpretation, ruling, order or decision on
appeal that was in effect at the time of the proceeding upon which the
rule or order is based and which, if it had been made known to OFE,
would have been relevant to the proceeding and would have substantially
altered the outcome is subsequently discovered; or
(3) There has been a substantial change in the facts or
circumstances upon which an outstanding and continuing order was based,
which change occurred during the interval between issuance of the order
and the date of filing of the request under this subpart,
[[Page 31]]
and was caused by force or circumstances beyond the requester's control.
Sec. 501.103 OFE decision.
(a) OFE shall issue an appropriate rule or order after considering
the request for modification or rescission of a rule or order and other
relevant information received during the proceeding.
(b) OFE will either grant or deny the request for modification or
rescission and will briefly state the pertinent facts and legal basis
for the decision.
(c) OFE will serve the rule or order granting or denying the request
for modification or rescission upon the requester, or, if the action was
initiated by OFE, upon the owner or operator of the affected powerplant
or installation. OFE will publish a notice of the issuance of a rule or
order modifying or rescinding a rule or order in the Federal Register.
Subpart H_Requests for Stay
Sec. 501.120 Purpose and scope.
(a) This subpart sets forth the procedures for the request and
issuance of a stay of a rule or order or other requirement issued or
imposed by OFE or these regulations but does not apply to the mandatory
stays provided for in sections 202(b) and 301(a) of FUA. The application
for a stay under this subpart will only be considered incidental to a
proceeding on a request for modification or rescission of a final
prohibition rule or order.
(b) The petitioner must comply with all final and effective OFE
orders, regulations, rulings, and generally applicable requirements
unless a petition for a stay is granted or is applicable under FUA.
Sec. 501.121 Filing and notice of petitions for stays.
(a)(1) The petition for a stay must be in writing and comply with
the general filing requirements stated in Sec. 501.7, in addition to
any other requirements set forth in this subpart, and must be filed at
the address provided in Sec. 501.11.
(2) A claim for confidential treatment of any information contained
in the petition for stay and supporting documents must be in accordance
with Sec. 501.7(a)(11), and filed at the address provided in Sec.
501.11.
(b) OFE will publish notice of receipt of a petition for a stay
under this subpart in the Federal Register.
Sec. 501.122 Contents.
(a) A petition for a stay shall contain a full and complete
statement of all facts believed to be pertinent to the act or
transaction for which a stay is sought. The facts shall include, but not
be limited to, the criteria listed below in Sec. 501.123(b).
(b) The petitioner may request a conference regarding the
application. If the request is not made at the time the application is
filed, it must be made as soon thereafter as possible. The request and
OFE's determination regarding it will be made in accordance with subpart
C of this part.
Sec. 501.123 Evaluation of the record.
(a) The record in a proceeding on a petition for stay shall consist
of the petition and any related documents, evidence submitted at any
public proceedings and any other information in the possession of OFE
and made part of the record. OFE may investigate and corroborate any
statement in the petition or any other document submitted to it and may
utilize in its evaluation any relevant facts obtained by its
investigations. OFE may solicit or accept submissions from third persons
relevant to the petition for stay or other document and any interested
person will be afforded an opportunity to respond to these submissions.
OFE, on its initiative, may convene a conference, if, in its discretion,
it considers that the conference will advance its evaluation of the
petition.
(b) Criteria. (1) OFE may grant a stay incident to a proceeding on a
petition for modification of a rule or order if the petitioner shows:
(i) Irreparable injury will result if the stay is denied;
(ii) There is a strong likelihood of success on the merits;
(iii) The denial of a stay will result in a more immediate hardship
or inequity to the petitioner than to other persons affected by the
proceeding; and
[[Page 32]]
(iv) It would be desirable for reasons of public policy to grant the
stay.
Sec. 501.124 Decision and order.
(a) OFE will issue an order granting or denying the petition for a
stay upon consideration of the request and other relevant information
received or obtained during the proceeding.
(b) OFE will include in the order a brief written statement setting
forth the relevant facts and the basis of the decision, including any
appropriate terms and conditions of the stay.
Subpart I_Requests for Interpretation
Sec. 501.130 Purpose and scope.
This subpart establishes procedures for filing a formal request for
and the issuance of an interpretation of a rule, order or other action
by DOE. Any response, whether oral or written, to a general inquiry, or
to other than a formal written request for interpretation filed with
DOE, is not an interpretation and merely provides general information
that may not be relied upon in any proceeding to determine compliance
with the applicable requirements of FUA.
Sec. 501.131 Filing a request for interpretation.
A proceeding to request an interpretation is commenced by the filing
of a ``Request for Interpretation (FUA).'' The request must be in
writing and must also comply with the general filing requirements stated
in Sec. 501.7. Any claims for confidential treatment for any
information contained in the request or other related documents must be
made pursuant to Sec. 501.7(a)(11). A request for interpretation should
be filed with the Assistant General Counsel for Interpretations and
Rulings at the address provided in Sec. 501.11.
Sec. 501.132 Contents of a request for interpretation.
(a) A request for an interpretation must contain a complete
statement of all the facts believed to be relevant to the circumstances,
acts or transactions that are the subject of the request. The facts must
include the names and addresses of all potentially affected persons (if
reasonably ascertainable) and a full discussion of the pertinent
provisions and relevant facts contained in any documents submitted with
the request. Copies of relevant contracts, agreements, leases,
instruments, and other documents relating to the request must be
submitted if DOE believes they are necessary for determination of any
issue pending in the proceeding under this subpart. When the request
pertains to only one step in a larger integrated transaction, the
requesting party must also submit the facts, circumstances, and other
relevant information pertaining to the entire transaction.
(b) The requesting party must include in the request a discussion of
all relevant legal authorities, rulings, regulations, interpretations
and decisions on appeal relied upon to support the particular
interpretation sought.
(c) DOE may refuse to issue an interpretation if it determines that
there is insufficient information upon which to base an interpretation.
Sec. 501.133 DOE evaluation.
(a)(1) The record shall consist of the request for an interpretation
and any supporting documents, all relevant evidence presented at any
public proceedings, written comments and any information in the
possession of DOE that has been made part of the record.
(2) DOE may investigate and corroborate any statement in a request
or related documents and may utilize in its evaluation any relevant
facts obtained by the investigation. DOE may solicit or accept
submissions from third persons relevant to the request for
interpretation, or any other document submitted under this subpart, and
the person requesting the interpretation will be afforded an opportunity
to respond to these submissions.
(3) The General Counsel or his delegate will issue an interpretation
on the basis of the information provided in the request, unless that
information is supplemented by other information brought to the
attention of DOE during the proceeding. DOE's interpretation will,
therefore, depend on the accuracy of the factual statements, and the
requesting party may rely upon it only
[[Page 33]]
to the extent that the facts of the actual situation correspond to those
upon which the interpretation is based.
(b) Criteria. (1) DOE will base its FUA interpretations on the DEOA
and FUA, as applicable, and the regulations and published rulings of DOE
as applied to the specific factual situation presented.
(2) DOE will take into consideration previously issued
interpretations dealing with the same or a related issue.
Sec. 501.134 Issuance and effect of interpretations.
(a) DOE may issue an interpretation after consideration of the
request for interpretation and other relevant information received or
obtained during the proceeding.
(b) The interpretation will contain a written statement of the
information upon which it is based and a legal analysis of and
conclusions regarding the application of rulings, regulations and other
precedent to the situation presented in the request.
(c) Only those persons to whom an interpretation is specifically
addressed, and other persons upon whom the DOE serves the interpretation
and who are directly involved in the same transaction or act, are
entitled to rely upon it. No person entitled to rely upon an
interpretation shall be subject to civil or criminal penalties stated in
title VII of FUA for any act taken in reliance upon the interpretation,
notwithstanding that the interpretation shall thereafter be declared by
judicial or other competent authority to be invalid.
(d) DOE may at any time rescind or modify an interpretation on its
own initiative. Rescission or modification shall be made by notifying
persons entitled to rely on the interpretation that it is rescinded or
modified. This notification will include a statement of the reasons for
the rescission or modification and, in the case of a modification, a
restatement of the interpretation as modified.
(e) An interpretation is modified by a subsequent amendment to the
regulations or ruling to the extent that it is inconsistent with the
amended regulation or ruling.
(f) Any person who believes he is directly affected by an
interpretation issued by DOE, and who believes that he will be aggrieved
by its implementation, may submit a petition for reconsideration of that
interpretation to the General Counsel. DOE will acknowledge receipt of
all requests for reconsideration; however, this acknowledgement in no
way binds DOE to commence any proceeding on the request. If within sixty
(60) days of DOE's acknowledgement of the receipt of a request for
reconsideration, DOE has not issued either a notice of intent to
commence a proceeding to reconsider the interpretation or a
modification, revision or rescission of the original interpretation, the
request for reconsideration will be deemed denied. DOE may, in its
discretion, issue a formal denial of a request for reconsideration if:
(1) The request has not been filed in a timely manner, and good
cause therefor has not been shown;
(2) The person requesting reconsideration is not aggrieved or
otherwise injured substantially by the interpretation; or
(3) The request is defective because it fails to state and to
present facts and legal argument that the interpretation was erroneous
in fact or in law, or that it was arbitrary or capricious.
Subpart J_Rulings
Sec. 501.140 Purpose and scope.
DOE may issue rulings in accordance with the provisions of this
subpart. DOE will publish each ruling in the Federal Register and in 10
CFR part 518. A person is entitled to rely upon a ruling to the extent
provided in this subpart.
Sec. 501.141 Criteria for issuance.
(a) The General Counsel may issue a ruling whenever:
(1) There has been a substantial number of inquiries with regard to
similar factual situations or a particular section of the regulations;
or
(2) It is determined that a ruling will be of assistance to the
public in applying the regulations to a specific situation.
[[Page 34]]
Sec. 501.142 Modification or rescission.
(a) A ruling may be modified or rescinded by--
(1) Publication of the modification or rescission by DOE in the
Federal Register and in 10 CFR part 518; or
(2) Adoption of a rule that supersedes or modifies a prior ruling.
(b) A person shall not be subject to the sanctions or penalties
stated in these regulations for actions taken in reliance upon a ruling,
notwithstanding that the ruling is subsequently declared to be invalid
or no longer applicable. A person affected by a ruling may not rely upon
it for more than 30 days after it has been rendered invalid pursuant to
issuance of a superseding rule by OFE, or after it has been rescinded or
modified by DOE.
Sec. 501.143 Comments.
Any interested person may file a written comment on or objection to
a published ruling at any time with the Assistant General Counsel for
Interpretations and Rulings at the address provided in Sec. 501.11.
Subpart K_Enforcement
Sec. 501.160 Purpose and scope.
This subpart provides the procedures by which OFE may initiate
enforcement proceedings on its own behalf and by which complaints
concerning a violation of the Act or any rule or order thereunder may be
filed.
Sec. 501.161 Filing a complaint.
(a) A complaint under this subpart must be submitted in writing over
the signature of the person making the complaint in accordance with the
general filing requirements stated in Sec. 501.7. OFE will accept oral
complaints that otherwise satisfy the requirements of this subpart, but
OFE may request written verification.
(b) A complaint shall be filed at the address provided in Sec.
501.11.
Sec. 501.162 Contents of a complaint.
A complaint must contain a complete statement of all relevant facts
pertaining to the act or transaction that is the subject of the
complaint. It must also include the names and addresses of all persons
involved (if reasonably ascertainable), a description of the events that
led to the complaint, and a statement describing the statutory
provision, regulation, ruling, order, rule, or interpretation that
allegedly has been violated.
Sec. 501.163 OFE evaluation.
(a) The record shall consist of the complaint and any supporting
documents and all other relevant information developed in the course of
any investigations or proceedings related to that complaint. OFE may
investigate and corroborate any statement in the complaint or related
documents submitted, and may utilize in its evaluation any relevant
facts obtained by such investigation or from any other source of
information. OFE may solicit or accept submissions from third persons
relevant to the complaint or other related documents.
(b) Confidentiality of information. OFE will treat as confidential
information received in any investigation of a complaint, including the
identity of the complainant and the identity of any other persons who
provide information to the extent such information is exempt from public
disclosure under the Freedom of Information Act, 5 U.S.C. 552. OFE
reserves the right to make disclosures that would be in the public
interest.
Sec. 501.164 Decision to initiate enforcement proceedings.
After investigation of a specific complaint or based on any relevant
information received or obtained during an investigation, OFE may issue
a notice of violation, determine that no violation has occurred, or take
such other actions as it deems appropriate. Prior to issuance of a
notice of violation, and before commencement of an enforcement
proceeding, OFE may transmit a draft of the notice of violation to the
potentially affected person in order to promote an informal resolution
of the violation.
Sec. 501.165 Commencement of enforcement proceedings.
(a) Whenever, on the basis of any information available, OFE
determines that a person is in violation or about
[[Page 35]]
to be in violation of any provision of these regulations, OFE may issue
a notice of violation stating, in writing and with reasonable
specificity, the nature of the violation. An enforcement proceeding
commences with the issuance of a notice of violation.
(b) Contents of the notice of violation. OFE will set forth in the
notice of violation the nature of the violation, the relevant facts that
OFE believes establish the violation and the legal basis for the
conclusions reached therein. OFE may also include with the notice of
violation a copy of a proposed order. The notice of violation will also
state whether or not OFE proposes to assess civil penalties.
(1) If OFE proposes to assess a civil penalty, a notice of violation
will be issued to the violator with an opportunity for a hearing before
an Administrative Law Judge, as set forth in Sec. 501.166(a)(1) of this
part, before any final determination on the violation and penalty are
made by OFE. The recipient of the notice will also be informed of his
right to elect to have the procedures of Sec. 501.166(a)(2) apply, in
lieu of the hearing, with respect to a final determination on the
assessment of any civil penalty.
(2) If OFE does not propose to assess a civil penalty, the violator
will be provided the opportunity for a conference, as set forth in Sec.
501.166(b), before a final determination on the violation is made by
OFE. OFE may, in its discretion, also provide the violator an
opportunity for a hearing pursuant to Sec. 501.166(a)(1).
(c) Service. OFE will serve the notice of violation in accordance
with provisions set forth in Sec. 501.6.
(d) Rescission. If, after issuance of a notice of violation and any
related investigation, OFE finds no basis for the belief that a
violation has occurred, is continuing to occur, or is about to occur,
OFE may rescind the notice of violation by giving written notice to that
effect to the recipient.
Sec. 501.166 Hearings and conferences.
(a) When a civil penalty is proposed--(1) Hearing alternative in
civil penalty assessment proceedings. Unless the recipient of a notice
of violation elects in writing to have the provisions of paragraph
(a)(2) of this section apply, OFE will commence a proceeding to assess a
penalty and, prior to a final determination on the violation and
assessment of a penalty, provide an opportunity for a hearing pursuant
to 5 U.S.C. 554 before an Administrative Law Judge.
(2) Election alternative in civil penalty assessment proceedings.
The recipient of a notice of violation in which a civil penalty
assessment has been proposed may elect, in writing, within thirty (30)
days of receipt of the notice, to waive the administrative proceedings
described in paragraph (a)(1) of this section. OFE will make a
determination on the proposed civil penalty assessment and issue a final
order to that effect within forty-five (45) days after receiving notice
of the exercise of this election.
(b) When a civil penalty is not proposed--opportunity to request a
conference. If a person has received a notice of violation in which a
civil penalty has not been proposed, he may, within thirty (30) days
after receipt of the notice, request a conference with OFE to discuss
the notice. In order to request a conference he must comply with the
instructions set forth in the notice.
Sec. 501.167 Fuel use order.
(a) General. OFE will issue a Fuel Use Order if, after considering
all the information received during the proceeding, OFE determines that
a person has committed, is committing, or is about to commit a violation
of FUA or of an order or rule thereunder.
(b) Contents. Any Fuel Use Order issued under this section shall set
forth the relevant facts and legal basis for the order and where
appropriate, the final penalty assessment and the basis therefor. When
an administrative hearing is requested under Sec. 501.166(a) of this
part, the Fuel Use Order will include the recommended findings and
conclusions of the Administrative Law Judge (ALJ) and the basis for the
penalty assessment. OFE will make a final determination as to any
penalty assessment or other appropriate remedy based upon the
recommended findings and conclusions of the ALJ and other information in
the record of the enforcement proceeding. The order will
[[Page 36]]
be effective upon service, unless otherwise provided therein, or stayed
pursuant to Sec. 501.120.
(c) Service. OFE will serve a copy of the Fuel Use Order upon any
person who was served a copy of the notice of violation and upon all
parties to any public proceeding on the notice of violation. OFE will
place a copy of each final order on file in the Public Information
Office described in Sec. 501.12.
(d) Judicial review. Any person against whom a penalty is assessed
pursuant to Sec. 501.167(b) after a hearing before an ALJ may, within
sixty (60) calendar days after the date of issuance of the order
assessing such penalty, institute an action in the United States Court
of Appeals for the appropriate judicial circuit for judicial review of
such order in accordance with the provisions of section 723 of FUA.
Subpart L_Investigations, Violations, Sanctions and Judicial Actions
Sec. 501.180 Investigations.
(a) General. Pursuant to section 711 of FUA, the DEOA, and in
accordance with the provisions of 10 CFR 205.201, OFE may initiate and
conduct investigations relating to the scope, nature, and extent of
compliance by any person with the rules, regulations, and orders issued
by OFE under the authority of the Act, or any order or decree of court
relating thereto, or any other agency action. When the circumstances
warrant, OFE may issue subpoenas as provided in subpart D of this part.
OFE may also conduct investigative conferences in conjunction with any
investigation.
(b) Any duly authorized representative of OFE has the authority to
conduct an investigation and to take such action as he deems necessary
and appropriate to the conduct of the investigation.
(c) Notification. If any person is required to furnish information
or documentary evidence pursuant to a subpoena or special report order,
OFE will, upon written request, inform that person as to the general
purposes of the investigation.
(d) Confidentiality. OFE shall not disclose any information received
during an investigation under this section, including the identities of
the person investigated and any other person who provides information,
to the extent it is exempt from public disclosure pursuant to 5 U.S.C.
552 and 10 CFR part 1004.
Sec. 501.181 Sanctions.
(a) General. (1) A violation of any provision of the Act (other than
section 402 of FUA), or any rule or order thereunder shall be subject to
the penalties and sanctions provided in subtitle C of title VII of FUA.
(2) Each day that any provision of the Act (other than section 402),
or any rule or order thereunder is violated constitutes a separate
violation within the meaning of the provisions of this section relating
to civil penalties.
(b) Criminal penalties. Any person who willfully violates any
provision of the Act (other than section 402), or any rule or order
thereunder will be subject to a fine of not more than $50,000, or to
imprisonment for not more than 1 year, or both, for each violation.
(c) Civil Penalties. (1) Any person who violates any provisions of
the Act (other than section 402) or any rule or order thereunder will be
subject to the following civil penalty, which may not exceed $94,219 for
each violation: Any person who operates a powerplant or major fuel
burning installation under an exemption, during any 12-calendar-month
period, in excess of that authorized in such exemption will be assessed
a civil penalty of up to $8 for each MCF of natural gas or up to $38 for
each barrel of oil used in excess of that authorized in the exemption.
(2) OFE may compromise and settle, and collect civil penalties
whenever it considers it to be appropriate or advisable.
(d) Corporate personnel. (1) If a director, officer, or agent of a
corporation willfully authorizes, orders, or performs any act or
practice constituting in whole or in part a violation of the Act, or any
rule or order thereunder, he will be subject to the penalties specified
in paragraphs (b) and (c) of this section without regard to any
penalties to which the corporation may be subject. He will not, however,
be subject to imprisonment under paragraph (b) of
[[Page 37]]
this section unless he knew of noncompliance by the corporation, or had
received from OFE notice of noncompliance by the corporation.
(2) Purposes of this paragraph:
(i) Agent includes any employee or other person acting on behalf of
the corporation on either a temporary or permanent basis; and
(ii) Notice of noncompliance is a final Fuel Use Order issued under
Sec. 501.167 of this part.
[46 FR 59889, Dec. 7, 1981, as amended at 62 FR 46183, Sept. 2, 1997; 74
FR 66032, Dec. 14, 2009; 81 FR 41794, June 28, 2016; 81 FR 96352, Dec.
30, 2016; 83 FR 1292, Jan. 11, 2018; 83 FR 66083, Dec. 26, 2018]
Sec. 501.182 Injunctions.
Whenever it appears to OFE that any person has committed, is
committing, or is about to commit a violation of any provision of the
Act, or any rule or order thereunder, OFE may, in accordance with
section 724 of FUA, bring a civil action in the appropriate United
States District Court to enjoin such acts or practices. The relief
sought may include a mandatory injunction commanding any person to
comply with any provision of such provision, order or rule, the
violation of which is prohibited by section 724 of FUA and may also
include interim equitable relief.
Sec. 501.183 Citizen suits.
(a) General. A person who believes he is aggrieved by the failure of
OFE to perform any nondiscretionary act of duty under the Act may file a
Petition for Action for OFE to take such action as he may feel to be
proper. This petition must be filed at the address provided in Sec.
501.11. The petition must specify the action requested and set forth the
facts and legal arguments that constitute the basis for the request. The
filing of a Petition for Action will serve as notice to OFE under FUA
section 725(b) for purposes of any citizens suit that may be
subsequently filed.
(b) OFE decision. Within sixty (60) days of receiving the Petition
for Action, OFE will notify the person giving notice under this section
that it has instituted the action requested or that other described
action is being taken, or that other described action is being taken, or
that no action is being taken and the reasons therefor.
Subpart M_Use of Natural Gas or Petroleum for Emergency and
Unanticipated Equipment Outage Purposes
Sec. 501.190 Purpose and scope.
(a) If a person operates a powerplant covered by any of the
prohibitions of titles II, III, or IV of FUA, Sec. 501.191 of this
subpart establishes procedures to be followed for the use of minimum
amounts of natural gas or petroleum under FUA section 103(a)(15)(B) in
order to alleviate or prevent unanticipated equipment outages and
emergencies directly affecting the public health, safety, or welfare
that would result from electric power outages.
(b) Explanatory note: If a person operates a rental boiler as a
powerplant covered by any of the prohibitions of titles II, III, or IV
of FUA, he may be able to use the provisions of this subpart for the
emergency use of natural gas or petroleum.
[54 FR 52893, Dec. 22, 1989]
Sec. 501.191 Use of natural gas or petroleum for certain unanticipated
equipment outages and emergencies defined in section 103(a)(15)(B) of
the act.
(a) In the event of the occurrence or imminent occurrence of an
emergency, or of the occurrence or imminent occurrence of an
unanticipated equipment outage in the unit, an owner or operator of a
powerplant is automatically permitted to use minimum amounts of natural
gas or petroleum in the unit or in a substitute unit to prevent or
alleviate the outage or to prevent or alleviate the emergency if he
complies with procedures contained in paragraph (b) of this section.
(b) If the use of minimum amounts of petroleum or natural gas is
required for purposes specified in this section, the owner or operator
must notify OFE of such use by telegram or telephone within 24 hours
after the commencement of such use. Immediately thereafter a written
confirmation must be submitted to OFE, describing, to the
[[Page 38]]
best estimate of the owner or operator, (1) the nature of the emergency
and (2) how long petroleum or natural gas use is likely to be required.
(c) For purposes of this section only:
(1) An emergency is the occurrence or threat of imminent occurrence
of a condition which results or would result from an electric power
outage and directly effects or would directly effect the public health,
safety or welfare;
(2) Unanticipated equipment outage shall mean an unexpected outage
due to equipment failure.
(3) Minimum amounts required to alleviate or prevent shall mean:
(i) For powerplants, the amounts of natural gas or petroleum
required to prevent curtailment of electric supply where the operating
utility has, to the maximum extent possible, utilized alternate fuel-
fired capacity to prevent such curtailment. Note--A utility operating
hydroelectric facilities may take into account seasonal fluctuations in
storage capacity and shall be permitted to prevent depletion of stored
power-producing capacity as deemed necessary by the utility; and
(ii) For installations, the amounts of natural gas or petroleum
required to meet plant protection or human health and safety needs,
including services to hospitals, public transportation facilities,
sanitation, or water supply and pumping.
[46 FR 59889, Dec. 7, 1981, as amended at 54 FR 52893, Dec. 22, 1989]
Sec. 501.192 [Reserved]
PART 503_NEW FACILITIES--Table of Contents
Subpart A_General Prohibition
Sec.
503.1 Purpose and scope.
503.2 Prohibition.
503.3 [Reserved]
Subpart B_General Requirements for Exemptions
503.4 Purpose and scope.
503.5 Contents of petition.
503.6 Cost calculations for new powerplants and installations.
503.7 State approval--general requirement for new powerplants.
503.8 No alternate power supply--general requirement for certain
exemptions for new powerplants.
503.9 Use of mixtures--general requirement for certain permanent
exemptions.
503.10 Use of fluidized bed combustion not feasible--general requirement
for permanent exemptions.
503.11 Alternative sites--general requirement for permanent exemptions
for new powerplants.
503.12 Terms and conditions; compliance plans.
503.13 Environmental impact analysis.
503.14 Fuels search.
Subpart C_Temporary Exemptions for New Facilities
503.20 Purpose and scope.
503.21 Lack of alternate fuel supply.
503.22 Site limitations.
503.23 Inability to comply with applicable environmental requirements.
503.24 Future use of synthetic fuels.
503.25 Public interest.
Subpart D_Permanent Exemptions for New Facilities
503.30 Purpose and scope.
503.31 Lack of alternate fuel supply for the first 10 years of useful
life.
503.32 Lack of alternate fuel supply at a cost which does not
substantially exceed the cost of using imported petroleum.
503.33 Site limitations.
503.34 Inability to comply with applicable environmental requirements.
503.35 Inability to obtain adequate capital.
503.36 State or local requirements.
503.37 Cogeneration.
503.38 Permanent exemption for certain fuel mixtures containing natural
gas or petroleum.
503.39-503.44 [Reserved]
Authority: Department of Energy Organization Act, Pub. L. 95-91, 91
Stat. 565 (42 U.S.C. Sec. 7101 et seq.); Powerplant and Industrial Fuel
Use Act of 1978, Pub. L. 95-620, 92 Stat. 3289 (42 U.S.C. 8301 et seq.);
Energy Security Act, Pub. L. 96-294, 94 Stat. 611 (42 U.S.C. 8701 et
seq.); E.O. 1209, 42 FR 46267, September 15, 1977.
Source: 46 FR 59903, Dec. 7, 1981, unless otherwise noted.
(OMB Control No.: 1903-0075. See 46 FR 63209, Dec. 31, 1981.)
Subpart A_General Prohibition
Sec. 503.1 Purpose and scope.
This subpart sets forth the statutory prohibition imposed by the Act
upon
[[Page 39]]
new powerplants. The prohibition in the subpart applies to all new
baseload electric powerplants unless an exemption has been granted by
OFE under subparts C and D of this part. Any person who owns, controls,
rents, leases or operates a new powerplant that is subject to the
prohibition may be subject to sanctions provided by the Act or these
regulations.
[54 FR 52893, Dec. 22, 1989]
Sec. 503.2 Prohibition.
Section 201 of the Act prohibits, unless an exemption has been
granted under subpart C or D of this part, any new electric powerplant
from being constructed or operated as a baseload powerplant without the
capability to use coal or another alternate fuel as a primary energy
source.
[54 FR 52893, Dec. 22, 1989]
Sec. 503.3 [Reserved]
Subpart B_General Requirements for Exemptions
Sec. 503.4 Purpose and scope.
This subpart establishes the general requirements necessary to
qualify for either a temporary or permanent exemption under this part
and sets out the methodology for calculating the cost of using an
alternate fuel and the cost of using imported petroleum.
Sec. 503.5 Contents of petition.
Before OFE will accept a petition for either a temporary or
permanent exemption under this part, the petition must include all of
the evidence and information required in this part and part 501 of this
chapter.
Sec. 503.6 Cost calculations for new powerplants and installations.
(a) General. (1) This calculation compares the cost of using
alternate fuel to the cost of using imported petroleum. It must be
performed for each alternate fuel and/or alternate site that the
petitioner is required to examine.
(2) The cost of using an alternate fuel as a primary energy source
will be deemed to substantially exceed the cost of using imported
petroleum if the difference between the cost of using alternate fuel and
the cost of using imported oil is greater than zero.
(3) There are two comparative cost calculations--a general cost test
and a special cost test. Both take into consideration cash outlays for
capital investments, annual expenses, and the effect of depreciation and
taxes on cash flow. To demonstrate eligibility for a permanent
exemption, a petitioner must use the procedures specified in the general
cost test (paragraph (b) of this section). To demonstrate eligibility
for a temporary exemption, the petitioner may apply the procedures
specified in either the general cost test or the special cost test
(paragraph (c) of this section).
(b) Cost calculation--general cost test. (1) A petitioner may be
eligible for a permanent exemption if he can demonstrate that the cost
of using an alternate fuel from the first year of operation
substantially exceeds the cost of using imported petroleum. Unless the
best practicable cost estimates as prescribed below will not materially
change during the first ten years of operation of the unit (given the
best information available at the time the petition is filed), the
petitioner must also demonstrate that the cost of using an alternate
fuel beginning at any time within the first ten years of operation and
using imported petroleum or natural gas until such time (i.e., delayed
use of alternate fuel) would substantially exceed the cost of using only
imported petroleum.
(2) The petitioner would only be eligible for a temporary exemption
if the computed costs of delayed alternate fuel use, commencing at the
start of the second through eleventh years of operation, do not always
substantially exceed the cost of using only imported petroleum. The
length of the temporary exemption would be the minimum period from the
start of operation in which the cost of using alternate fuel
substantially exceeds the cost of using imported petroleum.
(3) To conduct the general cost test, calculate the difference
(DELTA) between the cost of using an alternate fuel (COST(ALTERNATE))
and the cost of using imported petroleum (COST(OIL)) using Equations 1
through
[[Page 40]]
3 below and the comparison procedures in paragraph (b)(5) of this
section.
[GRAPHIC] [TIFF OMITTED] TC01OC91.000
(4) The terms in Equations 2 and 3 are defined as follows:
i = Year. i is a specified year either before year 0 or after year 0.
Year 0 is the year before the unit becomes operational. For
example, in the third year before the unit becomes
operational, i would equal -2, and in the third year following
commencement of operations of the unit, i would equal + 3.
Years are represented by 52 week periods prior to or following
the date on which the unit becomes operational. Outlays before
the unit becomes operational are future valued to the year
before the unit becomes operational (year 0), and outlays
after the unit becomes operational are present valued to the
year before the unit becomes operational. Year 0 must be the
same for the units being compared.
g = The number of years prior to the year before the unit becomes
operational (year 0) that (1) a cash outlay is first made for
capital investments, or (2) an investment tax credit is first
used--whichever occurs first.
N = The useful life of the unit (see paragraph (d)(5) of this section).
Ii = Yearly cash outlay (in dollars) from the year outlays
first occur to the last year of the unit's useful life for
capital investments. (See paragraph (d)(2) of this section for
the items that must be included.)
OMi = Annual cash outlay in year i (in dollars) for all
operations and maintenance expenses except fuel (i.e., all
non-capital and non-fuel cash outlays caused by putting the
capital investments (I) into service). This may include labor,
materials, insurance, taxes (except income taxes), etc. (See
paragraph (d)(3) of this section.)
Si = Salvage value of capital investment (in dollars) in year
i.
FLi = Annual cash outlay for delivered fuel expenses (in
dollars) in year i. (See paragraph (d)(3) of this section for
FLi calculation instructions and appendix II of
these regulations for the procedures to determine fuel price.)
k = The discount rate expressed as a fraction (see paragraph (d)(4) of
this section).
ITCi = Federal investment tax credit used in year i resulting
from capital investments (see paragraph (d)(6) of this
section).
DPRi = Depreciation in year i resulting from capital
investments (see paragraph (d)(6) of this section).
ti = Marginal income tax rate in year i (see paragraph (d)(6)
of this section).
[[Page 41]]
IXi = Inflation index value for year i (see appendix II to
part 504 for method of computation).
IXe = Inflation index value for the year e, the year before
the asset is placed in service.
(5) The step-by-step procedure that follows shows the comparison
that the petitioner must make.
(i) Compute the cost of using an alternate fuel (COST(ALTERNATE))
unit throughout the useful life of the unit using Equations 2 and 3.
(ii) Compute the cost of using oil or natural gas (COST(OIL))
throughout the useful life of the unit using Equations 2 and 3.
(iii) Using Equation 1, compute the difference (DELTA) between COST
(ALTERNATE) and COST (OIL). If the difference (DELTA) is less than or
equal to zero, a petitioner is not eligible for a permanent or temporary
exemption using the general cost test and need not complete the
remainder of the general cost test calculation. However, he still may be
eligible for a temporary exemption using the special cost test
(paragraph (c) of this section). If the difference (DELTA) is greater
than zero and if the best practicable cost estimates will not materially
change during the first ten years of operation (given the best
information available at the time the petition is filed), the petitioner
has completed the test and is eligible for a permanent exemption.
However, if the best practicable cost estimate will materially change
during the first ten years, the petitioner must complete the remainder
of the general cost test--the delayed use calculations which follow.
(iv) Recompute COST (ALTERNATE) with Equations 2 and 3, assuming
that an alternate fuel is not used as the primary energy source until
the start of the second year of operation and that imported petroleum or
natural gas is used for the first year of operation. All cash outlays
should reflect postponed use of alternate fuel.
(v) Successively recompute COST (ALTERNATE) with Equations 2 and 3,
assuming that the alternate fuel use is postponed until the start of the
third year, fourth year, and so on, through the beginning of the
eleventh year of operation (with imported petroleum or natural gas used
in the years preceding alternate fuel use).
(vi) Compute the difference (DELTA) between each of the ten
COST(ALTERNATE)s calculated in paragraph (b)(5) (iv) and (v) of this
section and the COST(OIL) calculated in paragraph (b)(5)(ii) of this
section.
(vii) If all the DELTAs computed in paragraph (b)(5) (iii) and (vi)
of this section are greater than zero, the petitioner is eligible for a
permanent exemption. If one or more of the DELTAs is less than or equal
to zero, he is eligible for a temporary exemption for the period
beginning at the start of the first year of operation and terminating at
the beginning of the first year in which a DELTA is zero or less.
(c) Cost calculations--special cost test. (1) A petitioner may be
eligible for a temporary exemption if he demonstrates that the cost of
using an alternate fuel will substantially exceed the cost of using
imported petroleum or (natural gas) over the period of the proposed
exemption. The period of the proposed temporary exemption may not exceed
ten years.
The petitioner must demonstrate that the cost of using an alternate fuel
substantially exceeds the cost of using imported petroleum for the first
year of operation, the first two years of operation, and so forth,
through the period of the proposed exemption. OFE will limit the
duration of a temporary exemption to the shortest time possible.
(2) To conduct the test, calculate the difference (DELTA) between
the cost of using an alternate fuel (COST (ALTERNATE)) and the cost of
using imported petroleum (COST (OIL)) using Equations 4 and 5 below,
Equation 3 (paragraph (b)(3) of this section), and the comparison
procedures in paragraph (c)(4) of this section.
[[Page 42]]
[GRAPHIC] [TIFF OMITTED] TC01OC91.001
Capital investment (I) is calculated with Equation 3 (paragraph
(b)(3) of this section).
(3) The terms in Equation 5 are the same as those in Equation 2 with
the addition of P, the length of the proposed temporary exemption in
years. (See paragraph (b)(4) of this section for other terms.)
(4) The step-by-step procedure that follows shows the comparisons
which must be made.
(i) Using Equation 5, compute the cost of using an alternate fuel
(COST(ALTERNATE)) assuming the length of the proposed exemption is one
year.
(ii) Likewise, compute the cost of using imported petroleum or
natural gas (COST(OIL)) assuming the length of the proposed exemption is
one year.
(iii) Compute the difference (DELTA) between COST (ALTERNATE) and
COST (OIL) using Equation 4.
(iv) Repeat the calculations made in (i), (ii), and (iii) above,
assuming the length of the proposed exemption is two years, three years,
four years, and so on, up through the period of the proposed exemption.
(v) A petitioner is eligible for a temporary exemption for the
period beginning at the start of the first year of operation and
terminating at the beginning of the first year in which a DELTA is zero
or less.
(d) Information on parameters used in the calculations. (1) All
estimated expenditures, except fuel, shall be expressed in real terms
(unadjusted for inflation) by using the prices in effect at the time the
petition is submitted. Instructions for fuel price calculations are
contained in appendix II.
(2) Capital investment yearly cash outlays (Ii) must
include all items that are capital investments for Federal income tax
purposes. All purchased equipment that has a useful life greater than
one year, capitalized engineering costs, land, construction,
environmental offsets, fuel inventory, transmission facilities, piping,
etc., that are necessary for the operation of the unit must be included.
However, an item must only be included if a cash outlay is required
after the decision has been made to build the unit; sunk costs must not
be included (e.g., if the firm owns the land, its purchase price may not
be included).
Note: The guidelines for the fuel inventory for powerplants not
using natural gas shall be: (a) All powerplants with only steam driven
turbines--78 days, (b) all powerplants with only combustion turbines--
142 days, (c) all powerplants with combined cycles--both steam driven
turbines and combustion turbines--142 days. The guidelines for the fuel
inventory for installations not using natural gas shall be the greater
of: (1) 21 days fuel supply, or (2) sufficient fuel to fill sixty (60)
percent of the storage volume. The guidelines for the fuel inventory for
all facilities using natural gas shall be zero unless the gas supply is
interruptible in which case an appropriate inventory of back-up fuel
must be included. Other inventory levels may be used if they are more
appropriate than these guidelines; however, the source or derivation of
these levels must be discussed in the evidential summary.
[[Page 43]]
(3)(i) The annual cash outlays for operations and maintenance
expense (OMi) and fuel expense (FLi) for a
powerplant may be computed by one of the following three methods;
however, the one chosen must be consistently applied throughout the
analysis.
(A) Assume the energy produced by the powerplant equals seventy (70)
percent of design capacity times 8760 hours for each year during the
life of the powerplant, and compute cash outlays for operations,
maintenance, and fuel expenses for the powerplant.
(B) Economically dispatch the new powerplant. The cash outlays for
operations, maintenance, and fuel expenses of all powerplants being
dispatched (where oil and natural gas are priced according to the
procedures of appendix II \1\) are the corresponding expenses for the
purpose of the cost calculation. The dispatch analysis area must be that
area with which the firm currently dispatches, anticipates dispatching,
and will be interconnected. It must also include all anticipated
exchanges of energy with other utilities or powerpools. The outlays for
operations, maintenance, and fuel may also be estimated using a
methodology that incorporates the benefits of economically dispatching
units and provides consistent treatment in the alternate fuel and oil or
natural gas cases being compared.
(C) Use a dispatch analysis to project the energy produced by the
powerplant for a representative (not atypical) year of operation when
consuming an alternate fuel. Compute the cash outlays for operations,
maintenance, and fuel expenses for the powerplant based upon the level
of energy production estimated for the representative year. The dispatch
analysis and fuel expenses for the cost calculation must include oil and
natural gas priced according to the procedures of appendix II. \1\
(ii) When computing the annual cash outlays for operations and
maintenance expense (OMi) and fuel expense (FLi)
for an installation, specify the firing rates and the length of time
each firing rate will be maintained.
(4) The discount rate (k) for analyses is 2.9 percent or that which
is computed as specified in appendix I. The method of computing the
inflation index (IX) is shown in appendix II to part 504. OFE will
modify these specified rates from time to time as required by changed
conditions after public notice and an opportunity to comment. However,
the relevant set of specified rates for a specific petition for
exemption will be the set in effect at the time the petition is
submitted or the set in effect at the time a decision is rendered,
whichever set is more favorable to the petitioner.
(5)(i) The guidelines for the useful life (N) of all powerplants
except nuclear will be thirty-five (35) years. The guidelines for the
useful life of a nuclear powerplant will be forty (40) years. The
guidelines for the useful life of major fuel burning installations will
be forty (40) years. Other useful life projections may be used if they
are more appropriate than these guidelines; however, the source or
derivation of these projections must be contained in the evidential
summary. The summary should include a discussion of engineering,
economic historical or other evidence.
(ii) If the units being compared have different useful lives, the
petitioner will have to modify his calculation so that the two cash
flows being compared have the length of the shorter useful life. To do
this, (A) use the shorter of the two useful lives in Equations 2 and 5
for both units, and (B) multiply capital investment (I) of the unit with
the longer life (computed with Equation 3) by the following adjustment
factor (A):
[GRAPHIC] [TIFF OMITTED] TC01OC91.002
where:
R = The useful life of the facility with the longer life.
Q = The useful life of the facility with the shorter life.
k = The discount rate (see paragraph (d)(4) above).
(6) All Federal investment tax credits (ITCi) and
depreciation (PRi) values are those used for Federal income
tax purposes and must be applied consistently throughout the analysis
and in a manner consistent with the Federal tax
[[Page 44]]
laws. All investment tax credits allowed under Federal tax law must be
reflected in the computations. The petitioner must use the method of
depreciation which results in the greatest present value of the cash
flow due to the tax and depreciation effect. The marginal income tax
rate (ti) is the firm's anticipated marginal Federal income
tax rate in year i. The relevant investment tax credits, depreciation
methodology, and marginal Federal income tax rates for a specific
exemption petition will be those prescribed by Federal law in effect (or
those tax parameters which are known with certainty will be in effect)
at the time a decision is rendered. (However, if an investment tax
credit expires in a certain year under the law which is in effect at the
time the petition is submitted, the petitioner must assume that it will
in fact expire in that year.)
(7) If powerplants are being compared, the design capacities or the
maximum sustained energy per unit of time that could be produced must be
the same. If installations are being compared, the maximum sustained
energy per unit of time that could be produced must be the same.
(8) All estimated cash outlays must be computed in accordance with
generally accepted accounting principles consistently applied.
(9) The scope of the estimates of relevant costs (as discussed
above) of units being compared must be the same.
(10) All allowances for uncertainty and risk in the cost estimates
must be explicit.
(11) All cash outlays must be net of any government subsidies or
grants.
(e) Evidence in support of the cost calculation. Petitioners for an
exemption which requires the use of the cost calculation shall certify
that the cost of using alternate fuel substantially exceeds the cost of
using oil as primary energy source as calculated in this section. A
brief summary of the petitioner's supporting calculations and estimates
shall be submitted with the certification. The summary should include
the following:
(1) Cash outlays, Investment tax credits, depreciation
methodologies, and anticipated salvage for capital investments including
a description of all major construction and equipment;
(2) Annual cash outlays for operations and maintenance expenses
including the formulas used to compute them; and
(3) Annual cash outlays for delivered fuel expenses including the
formulas used to compute them.
[46 FR 59903, Dec. 7, 1981; 46 FR 63033, Dec. 30, 1981; 47 FR 15314,
Apr. 9, 1982; 54 FR 52893, Dec. 22, 1989]
Sec. 503.7 State approval--general requirement for new powerplants.
(a) Where approvals by the appropriate State regulatory authority
are required prior to the construction or use of a new powerplant, a
petition for an exemption for consideration by OFE may be submitted to
OFE prior to obtaining such approvals from the State regulatory
authority.
(b) An exemption granted for a powerplant shall not become effective
until an adequate demonstration has been made to OFE that all applicable
approvals required by the State regulatory authorities have been
obtained.
Sec. 503.8 No alternate power supply--general requirement for certain
exemptions for new powerplants.
(a) Application. To qualify for an exemption, except in the case of
an exemption for cogeneration units, section 213(c) of the Act requires
a demonstration that, despite reasonable good faith efforts, there is no
alternative supply of electric power available within a reasonable
distance at a reasonable cost without impairing short-run or long-run
reliability of service. If a petitioner is unable to demonstrate that
there is no alternate supply during the first year of operation, OFE
will conclude that the absence of the proposed powerplant will not
impair short-term reliability of service, and as a result will not grant
the exemption. Such action would not impair long-term reliability of
service, since a petition may be submitted for a powerplant that would
begin operation in a subsequent year.
(b) Criteria. To meet the demonstration required under paragraph (a)
of this section, a petitioner must certify that:
[[Page 45]]
(1) A diligent effort has been made to purchase firm power for the
first year of operation to cover all or part of the projected shortfall
at a cost that is less than ten (10) percent above the annualized cost
of generating power from the proposed plant (including the capital,
operation and maintenance expenses, and fuel prices); and
(2)(i) Despite these efforts, the reserve margin in the petitioner's
electric region, normal dispatch area, or service area, in the absence
of the proposed plant, would fall below twenty (20) percent during the
first year of proposed operation; or
(ii) Despite these efforts, the reserve margin will be greater than
twenty (20) percent but reliability of service would be impaired. In
such case, the certification must be related to factors not included in
the calculation of reserve margin, such as transmission constraints.
(c) Evidence. The petition must include the following evidence in
order to make the demonstration required by this section:
(1) Duly executed certification required under paragraph (b) of this
section; and
(2) Exhibits containing the basis for the certification submitted
under this section (including those factual and analytical materials
deemed by the petitioner to be sufficient to support its certification
to this general requirement).
(d) FERC consultation. OFE will forward a copy of any petition for
which a showing is required under this section to FERC promptly after it
is filed with OFE, and OFE will consult with FERC before making the no
alternate supply of power finding.
[46 FR 59903, Dec. 7, 1981, as amended at 47 FR 15314, Apr. 9, 1982; 54
FR 52894, Dec. 22, 1989]
Sec. 503.9 Use of mixtures--general requirement for certain permanent
exemptions.
(a) Criteria. To qualify for a permanent exemption, except in the
case of an exemption for fuel mixtures, section 213(a)(1) of the Act
requires a demonstration that the use of a mixture of natural gas and
petroleum and an alternate fuel for which an exemption under 10 CFR
503.38 (Fuel mixtures) would be available, would not be economically or
technically feasible.
(b) Evidence. The petition must include the following evidence in
order to make the demonstration required by this section:
(1) Duly executed certifications to the criteria set forth in
paragraph (a) of this section; and
(2) Exhibits containing the basis for the certifications submitted
under this section (including those factual and analytical materials
deemed by the petitioner to be sufficient to support its certifications
to this general requirement.)
Note: In meeting this general requirement, OFE will require a
petitioner to examine only mixtures of oil and coal and natural gas and
coal, or, where petitioner wishes to examine an additional or substitute
mixture, such other alternate fuels as OFE and the petitioner agree are
reasonable to petitioner's circumstances.
[46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52894, Dec. 22, 1989]
Sec. 503.10 Use of fluidized bed combustion not feasible--general
requirement for permanent exemptions.
(a) OFE finding. Except in the case of an exemption for fuel
mixtures, OFE may deny permanent exemptions authorized under section 212
of the Act if OFE finds on a site-specific or generic basis that use of
a method of fluidized bed combustion of an alternate fuel is
economically and technically feasible.
(b) Demonstration. If OFE has made such a finding, OFE will deny a
petitioner's request for exemption unless the petitioner demonstrated
that the use of a method of fluidized bed combustion is not economically
or technically feasible. The petition or any supplement thereto required
by OFE must include the following evidence:
(1) If use of a method of fluidized bed combustion were to be
required, evidence that the petitioner would be eligible for a permanent
exemption for lack of alternate fuel supply, site limitations,
environmental requirements, lack of adequate capital, or State or local
requirements; or
[[Page 46]]
(2) Use of a method of fluidized bed combustion is not technically
or economically feasible due to design or special circumstances.
[46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52894, Dec. 22, 1989]
Sec. 503.11 Alternative sites--general requirement for permanent
exemptions for new powerplants.
(a) Criteria. To qualify for permanent exemption due to lack of
alternate fuel supply, site limitations, environmental requirements, or
inadequate capital, section 212(a) of the Act requires a demonstration
that one of these exemptions would be available for any reasonable
alternative site for the facility.
(b) Evidence. The petition must include the following evidence in
order to make the demonstration required by this section:
(1) Duly executed certifications to the criteria set forth in
paragraph (a) of this section; and
(2) Exhibits containing the basis for the certifications submitted
under this section (including those factual and analytical materials
deemed by the petitioner to be sufficient to support its certifications
to this general requirement).
[46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52894, Dec. 22, 1989]
Sec. 503.12 Terms and conditions; compliance plans.
(a) Terms and conditions generally. A petitioner must comply with
any terms and conditions imposed upon the grant of an exemption
petition. OFE will limit any such terms and conditions to the unit(s)
which is the subject of the petition.
(b) Compliance plans for temporary exemptions. (1) Any compliance
plan required to accompany a petition for a temporary exemption shall
include the following:
(i) A detailed schedule of progressive events and the dates upon
which the events are to take place, indicating how compliance with the
applicable prohibitions of the Act will occur;
(ii) Evidence of binding contracts for fuel, or for facilities for
the production of fuel, which are required for compliance with the
applicable prohibitions of the Act;
(iii) A schedule indicating how any necessary permits and approvals
required to burn an alternate fuel will be obtained; and
(iv) Any other documentary evidence which indicates an ability to
comply with the applicable prohibitions of the Act.
(2) Any exemption for which a compliance plan is required shall not
be effective until the compliance plan is approved by DOE.
(3) If the petition is granted, an updated, duly executed plan must
be submitted to OFE within one (1) month of an alteration of any
milestone in the compliance plan, together with the reasons for the
alteration and its impact upon the scheduling of all other milestones in
the plan.
Sec. 503.13 Environmental impact analysis.
In order to enable OFE to comply with NEPA, a petitioner must
include the information indicated in this section if a permanent
exemption is requested. Material which has been prepared pursuant to any
Federal, State or local requirement for environmental information for
this unit or site may be incorporated by reference and appended to the
petition. Guidelines issued by OFE for environmental reports should be
used in preparing this analysis (44 FR 63740, November 5, 1979). These
guidelines, which are also available in the OFE public document room,
have been designed to insure that environmental reports follow the
format prescribed by Council on Environmental Quality final regulations
implementing NEPA. The guidelines are subject to discussion at a
prepetition conference and to modification according to the facts of a
particular case.
(a) All petitions for permanent exemptions must contain the
following information:
(1) A description of the facility, including site location, and
surroundings, alternative site(s), the facility's current proposed
operations, its
[[Page 47]]
fuel capability, and its pollution abatement systems and equipment
(including those systems and equipment necessary for all fuel scenarios
considered);
(2) A description of the existing environment, including air, water,
and land resources;
(3) Direct and indirect environmental impacts of the proposed action
including impacts of alternative fuel scenarios, and no build
alternatives.
(4) Regulatory requirements governing the facility, including a
description of Federal, State and local requirements for air, water,
noise and solid waste disposal which must be met for each fuel
considered.
(b) For exemptions for cogeneration, the information enumerated
below is to be submitted in lieu of the information required by
paragraph (a) of this section. However, submission of the following
information merely establishes a rebuttable presumption that the grant
or denial of the exemption would have no significant environmental
impact. OFE may, in individual cases, during the course of the
administrative proceeding, determine that additional environmental
information is required. In such cases, the petitioner will be required
to submit the information described in paragraph (a) of this section.
(1) A certification that the petitioner will, prior to operating the
unit under the exemption, secure all applicable environmental permits
and approvals pursuant to, but not limited to, the following: Clean Air
Act, Rivers and Harbors Act, Coastal Zone Management Act, Safe Drinking
Water Act, Resource Conservation and Recovery Act; and
(2) Information required by the following environmental checklist
must be provided and certified as accurate:
Environmental Checklist for FUA Certification Exemptions
Instructions
All questions are to be answered by placing a check in the
appropriate box. N/A represents (not applicable). Although it is not
required, the petitioner may elaborate on any question in writing on a
separate sheet of paper.
------------------------------------------------------------------------
Yes No N/A
------------------------------------------------------------------------
(1) Is your facility located in, or will it
affect a wetland (Protection of Wetlands
Executive Order No. 11990)?.................
(2) Is your facility located in, or will it
affect, a 100-year floodplain (Floodplain
Management Executive Order No. 11988)?......
(3) Will your facility affect a designated
wild, scenic, or recreation river (Wild and
Scenic Rivers Act)?.........................
(4)(A) Is your facility located within a
county in which critical habitat for
threatened or endangered species are known
to exist (Endangered Species Act)?..........
(4)(B) Has a qualified biologist determined
that your facility will not affect any
species on the Threatened and Endangered
Species list?...............................
(5) Is your facility located on, or will it
affect land that has been classified as
prime or unique farmland or rangeland by the
U.S. Department of Agriculture?.............
(6) Is your facility located on, or will it
affect, historical archaeological, or
cultural resources that have been designated
pursuant to the National Historic
Preservation Act?...........................
------------------------------------------------------------------------
[46 FR 59903, Dec. 7, 1981, as amended at 47 FR 15315, Apr. 9, 1982; 51
FR 18866, May 22, 1986; 52 FR 658, Jan. 7, 1987; 54 FR 52894, Dec. 22,
1989]
Sec. 503.14 Fuels search.
Prior to submitting a petition for a permanent exemption for lack of
alternate fuel supply, site limitations, inadequate capital, or state or
local requirements, a petitioner must examine the use of conventional
solid coal as a primary energy source at the site under consideration,
and at reasonable alternative sites. Where a petitioner believes that
its use of such coal would be infeasible, however, and where OFE and the
petitioner can reach accord, it may evaluate use of a different
alternate fuel in lieu of solid coal. A petitioner of these exemptions
must demonstrate for any fuel examined that he would qualify for an
exemption.
[54 FR 52894, Dec. 22, 1989]
[[Page 48]]
Subpart C_Temporary Exemptions for New Facilities
Sec. 503.20 Purpose and scope.
(a) This subpart implements the provisions contained in section 211
of the Act with regard to temporary exemptions for new facilities.
(b) This subpart establishes the criteria and standards which owners
or operators of new powerplants who petition for a temporary exemption
must meet to sustain their burden of proof under the Act.
(c) All petitions for temporary exemptions shall be submitted in
accordance with the procedures set out in part 501 of this chapter and
the applicable requirements of part 503 of these regulations.
(d) The duration of any temporary exemption granted under this
subpart shall be measured from the date that the facility is placed in
service using petroleum or natural gas.
[46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52894, Dec. 22, 1989]
Sec. 503.21 Lack of alternate fuel supply.
(a) Eligibility. Section 211(a)(1) of the Act provides for a
temporary exemption due to the unavailability of an adequate and
reliable supply of an alternate fuel at a cost which does not
substantially exceed the cost of using imported petroleum. To qualify, a
petitioner must certify that:
(1) A good faith effort has been to obtain an adequate and reliable
supply of an alternate fuel of the quality necessary to conform to the
design and operational requirements of the unit;
(2) For the period of the proposed exemption, the cost of using such
alternate fuel would substantially exceed the cost of using imported
petroleum as a primary energy source as defined in Sec. 503.6 (Cost
calculation) of these regulations;
(3) The petitioner will be able to comply with the applicable
prohibitions of the Act at the end of the proposed exemption period; and
(4) No alternate power supply exists, as required under Sec. 503.8
of these regulations.
(b) Evidence required in support of a petition. The petition must
include the following evidence in order to make the demonstration
required by this section:
(1) Duly executed certifications required under paragraph (a) of
this section;
(2) Exhibits containing the basis for the certifications required
under paragraph (a) of this section (including those factual and
analytical materials deemed by the petitioner to be sufficient to
support the granting of this exemption);
(3) All data required by Sec. 503.6 (cost calculation) of these
regulations necessary for computing the cost calculation formula; and
(4) The anticipated duration of the lack of alternate fuel supply
which constitutes the basis for the exemption.
(c) Duration. This temporary exemption, taking into account any
extensions or renewals, may not exceed 10 years.
[46 FR 59903, Dec. 7, 1981, as amended at 47 FR 15315, Apr. 9, 1982; 54
FR 52894, Dec. 22, 1989]
Sec. 503.22 Site limitations.
(a) Eligibility. Section 211(a)(2) of the Act provides for a
temporary exemption due to a site limitation. To qualify for such an
exemption, a petitioner must certify that:
(1) One or more specific physical limitations relevant to the
location or operation of the proposed facility exist which, despite
diligent good faith efforts, cannot be overcome before the end of the
proposed exemption period;
(2) The petitioner will be able to comply with the applicable
prohibitions of the Act at the end of the proposed exemption period; and
(3) No alternate power supply exists, as required under Sec. 503.8
of these regulations.
Note: Examples of the types of site limitations to which a
petitioner may certify in order to qualify for this exemption include:
(i) Inaccessability of alternate fuels as a result of a specific
physical limitation;
(ii) Unavailability of transportation facilities for alternate
fuels;
[[Page 49]]
(iii) Unavailability of adequate land or facilities for handling,
using, or storing an alternate fuel;
(iv) Unavailability of adequate land or facilities for controlling
and disposing of wastes, including pollution control equipment or
devices necessary to assure compliance with applicable environmental
requirements;
(v) Unavailability of adequate and reliable supply of water,
including water for use in compliance with applicable environmental
requirements; or
(vi) Other site limitations exist which will not permit the location
or operation of the proposed unit using an alternate fuel.
(b) Evidence required in support of a petition. The petition must
include the following evidence in order to make the demonstration
required by this section:
(1) Duly executed certifications required under paragraph (a) of
this section;
(2) Exhibits containing the basis for the certifications required
under paragraph (a) of this section (including those factual and
analytical materials deemed by the petitioner to be sufficient to
support the granting of this exemption); and
(3) The anticipated duration of the site limitation which
constitutes the basis for the exemption.
(c) Duration. This temporary exemption, taking into account any
extensions and renewals, may not exceed five years.
[46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52894, Dec. 22, 1989]
Sec. 503.23 Inability to comply with applicable environmental
requirements.
(a) Eligibility. Section 211(a)(3) of the Act provides for a
temporary exemption due to an inability to comply with applicable
environmental requirements. To qualify a petitioner must demonstrate
that despite diligent good faith efforts:
(1) The petitioner will be unable, as of the projected date of
commencement of operation, to comply with the applicable prohibitions of
the Act without violating applicable Federal or State environmental
requirements; and
(2) The petitioner will be able to comply with the applicable
prohibitions of the Act and with applicable environmental requirements
by the end of the temporary exemption period.
Note: (1) For purposes of considering an exemption under this
section, OFE's decision will be based solely on an analysis of the
petitioner's capacity to physically achieve applicable environmental
requirements. The petition should be directed toward those conditions or
circumstances which make it physically impossible to comply during the
temporary exemption period. The cost of compliance is not relevant, but
cost-related considerations may be presented as part of a demonstration
submitted under Sec. 503.21.
(2) Prior to submitting an exemption petition, it is recommended
that a meeting be requested with OFE and EPA or the appropriate State or
local regulatory agency to discuss options for operating an alternate
fuel fired facility in compliance with applicable environmental
requirements.
(b) Evidence required in support of a petition. The petition must
include the following evidence in order to make the demonstration
required by this section:
(1) Where the petitioner has applied for a construction permit from
EPA or an appropriate State agency prior to petitioning for an exemption
under this section, a copy of that application and synopsis of
supporting documents filed with or subsequent to that application must
be submitted to OFE with the petition or at the time filed with the
permitting agency;
(2) To the extent applicable, a copy of the EPA or State denial of
the construction permit application;
(3) To the extent applicable, a synopsis of the administrative
record of the EPA or State or local permit proceedings;
(4) To the extent applicable, a summary of the technology upon which
the denial was based, including a performance comparison between the
proposed technology and that technology which would provide the maximum
possible reduction of pollution;
(5) An examination of the environmental compliance of the facility,
including an analysis of its ability to meet applicable standards and
criteria when using both the proposed fuel and the alternate fuel(s)
which would provide the basis for exemption. All such analysis must be
based on accepted analytical techniques, such as air quality
[[Page 50]]
modeling, and reflect current conditions of the area which would be
affected by the facility. The petitioner is responsible for obtaining
the necessary data to accurately characterize these conditions.
Environmental compliance must be examined in the context of available
pollution control equipment which would provide the maximum possible
reduction of pollution. The analysis must contain: (i) Requests for bids
and other inquiries made and responses received by the petitioner
concerning the availability and performance of pollution control
equipment; (ii) contracts signed, if any, for an alternate fuel supply
and for the purchase and installation of pollution control equipment; or
(iii) other comparable evidence such as technical studies documenting
the efficacy of equipment to meet applicable requirements;
(6) An examination of any regulatory options available to the
petitioner in seeking to achieve environmental compliance (such as
offsets, variances, and State Implementation Plan revisions);
(7) Any other documentation which demonstrates an inability to
comply with applicable environmental requirements;
(8) No alternate power supply exists, as required under Sec. 503.8
of these regulations.
(c) Duration. This temporary exemption, taking into account any
extension and renewals, may not exceed 5 years.
(d) Certification alternative. (1) To qualify for this exemption, in
lieu of meeting the evidentiary requirements of paragraph (b) of this
chapter, a petitioner may certify that, for the period of the exemption:
(i) The site for the facility is or will be located in a Class I
area or Class II area in which the allowable increment established by
law has been consumed, as defined in part C of the Clean Air Act; the
use of an alternate fuel will cause or contribute to concentrations of
pollutants which would exceed the maximum allowable increases in a Class
I or Class II area even with the application of best available control
technology; the site for the facility is or will be located in a non-
attainment area as defined in part D of the Clean Air Act for any
pollutant which would be emitted by the facility; or, even with the
application of the lowest achievable emission rate, the use of an
alternate fuel will cause or contribute to concentrations in an air
quality control region, of a pollutant for which any national ambient
air quality standard is or would be exceeded; and
(ii) No alternate power supply exists, as required under Sec. 503.8
of these regulations.
(2) A petition by certification under this paragraph must include:
(i) Duly executed certifications required under paragraph (d)(1) of
this section;
(ii) Exhibits containing the basis for the certifications required
under paragraph (d)(1) of this section (including those factual and
analytical materials deemed by the petitioner to be sufficient to
support the granting of this exemption); and
(iii) The anticipated duration of the circumstances which constitute
the basis for the exemption.
[46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52894, Dec. 22, 1989]
Sec. 503.24 Future use of synthetic fuels.
(a) Eligibility. Section 211(b) of the Act provides for a temporary
exemption based upon the future use of synthetic fuels. To qualify, a
petitioner must certify that:
(1) The petitioner will be able to comply with the applicable
prohibitions imposed by the Act by the use of a synthetic fuel derived
from coal or another alternate fuel as a primary energy source in the
proposed facility by the end of the proposed exemption period;
(2) The petitioner will not be able to comply with the applicable
prohibitions imposed by the Act by use of a synthetic fuel until the end
of the proposed exemption period; and
(3) No alternate power supply exists, as required under Sec. 503.8
of these regulations.
(b) Evidence required in support of a petition. The petition must
include the following evidence in order to make the demonstration
required by this section:
(1) Duly executed certifications required under paragraph (a) of
this section;
[[Page 51]]
(2) Exhibits containing the basis for the certifications required
under paragraph (a) of this section (including those factual and
analytical materials deemed by the petitioner to be sufficient to
support the granting of this exemption); and
(3) A preliminary compliance plan, including to the extent
available, the information required under Sec. 503.12.
(c) Final Compliance Plan. Before an exemption may become effective,
the petitioner must submit and OFE must approve a final compliance plan
as required by Sec. 503.12.
(d) Duration. This temporary exemption may be granted for a period
of up to ten (10) years. Unless the petitioner requests otherwise, any
temporary exemption from the fuel use prohibitions of the Act for the
future use of synthetic fuels will commence on the date of commercial
operation of the facility.
Note: Contracts based on the anticipated successful demonstration of
a development program and/or the anticipated economic feasibility of a
synthetic fuels facility, will generally be sufficient to meet the
``binding contract'' requirements for this exemption.
[46 FR 59903, Dec. 7, 1981; 47 FR 15315, Apr. 9, 1982; 54 FR 52894, Dec.
22, 1989]
Sec. 503.25 Public interest.
(a) Eligibility. Section 211(c) of the Act provides for a temporary
public interest exemption. To qualify, a petitioner must demonstrate
that:
(1) The unit will be capable of complying with the applicable
prohibitions at the end of the proposed exemption period;
(2) The granting of the exemption would be in accord with the
purposes of the Act and would be in the public interest; and
(3) No alternate power supply exists, as required under Sec. 503.8
of these regulations.
(b) Evidence required in support of a petition. The petition must
include the following evidence in order to make the demonstration
required by this section:
(1) Substantial evidence to corroborate the eligibility requirements
identified above; and
(2) The anticipated duration of the circumstances which constitute
the basis for the exemption.
(c) Certification alternative. If the petitioner requires use of oil
or natural gas in a unit, during the construction of an alternate-fuel
fired unit, the petitioner may substitute, in lieu of the evidentiary
requirements of paragraphs (b)(1) and (2) of this section:
(1) A duly executed certification, including the requested duration
of the exemption, that the unit will be operated on oil or natural gas
only during the construction of an alternate fuel fired unit to be owned
or operated by the petitioner; and
(2) Exhibits containing the basis for the certifications required
under paragraph (c)(1) of this section (including those factual and
analytical materials deemed by the petitioner to be sufficient to
support the granting of this exemption).
(d) Duration. This temporary exemption, taking into account
extension and renewals, may not exceed 5 years.
[46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52894, Dec. 22, 1989]
Subpart D_Permanent Exemptions for New Facilities
Sec. 503.30 Purpose and scope.
(a) This subpart implements the provisions contained in section 212
of the Act with regard to permanent exemptions for new facilities.
(b) This subpart establishes the criteria and standards which owners
or operators of new powerplants and installations who petition for a
permanent exemption must meet to sustain their burden of proof under the
Act.
(c) All petitions for permanent exemptions for new facilities shall
be submitted in accordance with the procedures set out in part 501 of
this chapter and the applicable requirements of part 503 of these
regulations.
Sec. 503.31 Lack of alternate fuel supply for the first 10 years
of useful life.
(a) Eligibility. Section 212(a)(1)(A)(i) of the Act provides for a
permanent exemption due to lack of an adequate and reliable supply of
alternate fuel within the first 10 years of useful life of the proposed
unit. To qualify, a petitioner must certify that:
[[Page 52]]
(1) A good faith effort has been made to obtain an adequate and
reliable supply of an alternate fuel for use as a primary energy source
of the quality and quantity necessary to conform with the design and
operational requirements of the unit;
(2) Such a supply is not likely to be available within the first 10
years of useful life of the proposed unit;
(3) No alternate power supply exists, as required under Sec. 503.8
of these regulations;
(4) Use of mixtures is not feasible, as required under Sec. 503.9
of these regulations; and
(5) Alternative sites are not available, as required under Sec.
503.11 of these regulations.
(b) Evidence required in support of a petition. A petition must
include the following evidence in order to make the demonstration
required by this section:
(1) Duly executed certifications required under paragraph (a) of
this section;
(2) Exhibits containing the basis for the certifications required
under paragraph (a) of this section (including those factual and
analytical materials deemed by the petitioner to be sufficient to
support the granting of this exemption);
(3) Environmental impact analysis, as required under Sec. 503.13 of
these regulations; and
(4) Fuels search, as required under Sec. 503.14 of these
regulations.
[46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52895, Dec. 22, 1989]
Sec. 503.32 Lack of alternate fuel supply at a cost which does not
substantially exceed the cost of using imported petroleum.
(a) Eligibility. Section 212(a)(1) (A)(ii) of the Act provides for a
permanent exemption due to lack of an alternate fuel supply at a cost
which does not substantially exceed the cost of using imported
petroleum. To qualify a petitioner must certify that:
(1) A good faith effort has been made to obtain an adequate and
reliable supply of an alternate fuel for use as a primary energy source
of the quality and quantity necessary to conform with the design and
operational requirements of the proposed unit;
(2) The cost of using such a supply would substantially exceed the
cost of using imported petroleum as a primary energy source during the
useful life of the proposed unit as defined in Sec. 503.6 (cost
calculation) of these regulations;
(3) No alternate power supply exists, as required under Sec. 503.8
of these regulations.
(4) Use of mixtures is not feasible, as required under Sec. 503.9
of these regulations; and
(5) Alternative sites are not available, as required under Sec.
503.11 of these regulations.
(b) Evidence required in support of a petition. The petition must
include the following evidence in order to make the demonstration
required by this section:
(1) Duly executed certifications required under paragraph (a) of
this section;
(2) Exhibits containing the basis for certifications required under
paragraph (a) of this section (including those factual and analytical
materials deemed by the petitioner to be sufficient to support the
granting of this exemption);
(3) Environmental impact analysis, as required under Sec. 503.13 of
these regulations;
(4) Fuels search, as required under Sec. 503.14 of these
regulations; and
(5) All data required by Sec. 503.6 (cost calculation) of these
regulations necessary for computing the cost calculation formula.
[46 FR 59903, Dec. 7, 1981, as amended at 47 FR 15315, Apr. 9, 1982; 54
FR 52895, Dec. 22, 1989]
Sec. 503.33 Site limitations.
(a) Eligibility. Section 212(a)(1)(B) of the Act provides for a
permanent exemption due to site limitations. To qualify for such an
exemption, a petitioner must certify that:
(1) One or more specific physical limitations relevant to the
location or operation of the proposed facility exist which, despite good
faith efforts, cannot reasonably be expected to be overcome within five
years after commencement of operations;
[[Page 53]]
(2) No alternate power supply exists, as required under Sec. 503.8
of these regulations;
(3) Use of mixtures is not feasible, as required under Sec. 503.9
of these regulations; and
(4) Alternative sites are not available, as required under Sec.
503.11 of these regulations.
Note: Examples of the types of site limitations to which a
petitioner may certify in order to qualify for this exemption include:
(i) Inaccessibility of alternate fuels as a result of a specific
physical limitation;
(ii) Unavailability of transportation facilities for alternate
fuels;
(iii) Unavailability of adequate land or facilities for handling,
using or storing an alternate fuel;
(iv) Unavailability of adequate land or facilities for controlling
and disposing of wastes, including pollution control equipment or
devices necessary to assure compliance with applicable environmental
requirements;
(v) Unavailability of adequate and reliable supply of water,
including water for use in compliance with applicable environmental
requirements; or
(vi) Other site limitations exist which will not permit the location
or operation of the proposed unit using an alternate fuel.
(b) Evidence required in support of the petition. A petitioner must
include in the petition the following evidence in order to make the
demonstration required by this section:
(1) Duly executed certifications required under paragraph (a) of
this section;
(2) Exhibits containing the basis for the certifications required
under paragraph (a) of this section (including those factual and
analytical materials deemed by the petitioner to be sufficient to
support the granting of this exemption);
(3) Environmental impact analysis, as required under Sec. 503.13 of
these regulations; and
(4) Fuels search, as required under Sec. 503.14 of these
regulations.
[46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52895, Dec. 22, 1989]
Sec. 503.34 Inability to comply with applicable environmental
requirements.
(a) Eligibility. Section 212(a)(1)(C) of the Act provides for a
permanent exemption due to the inability to comply with applicable
environmental requirements. To qualify, a petitioner must demonstrate
that despite good faith efforts:
(1) The petitioner will be unable within 5 years after beginning
operation, to comply with the applicable prohibitions imposed by the Act
without violating applicable Federal or state environmental
requirements; and
(2) Reasonable alternative sites, which would permit the use of
alternate fuels in compliance with applicable Federal or state
environmental requirements, are not available.
Note: (1) For purposes of considering an exemption under this
section, OFE's decision will be based solely on an analysis of the
petitioner's capacity to physically achieve applicable environmental
requirements. The cost of compliance is not relevant, but cost-related
considerations may be presented as part of a demonstration submitted
under Sec. 503.32 (Lack of alternate fuel supply).
(2) Prior to deciding to submit an exemption petition, it is
recommended that a petitioner request a meeting with OFE and EPA or the
appropriate state or local regulatory agency to discuss options for
operating an alternate fuel-fired facility in compliance with the
applicable environmental requirements.
(b) [Reserved]
(c) Evidence required in support of a petition. The petitioner must
include in the petition the following evidence in order to make the
demonstration required by this section:
(1) Where the petitioner has applied for a construction permit from
EPA or an appropriate state agency prior to petitioning for an exemption
from OFE under this section, a copy of such application and a synopsis
of all supporting documents filed with or subsequent to the application
must be submitted to OFE with the petition or at the time filed with the
permitting agency;
(2) To the extent applicable, a copy of the EPA or state denial of
the construction permit application;
(3) To the extent applicable, a synopsis of the administrative
record of the EPA or state or local permit proceedings;
(4) To the extent applicable, a summary of the technology upon which
the denial was based, including a performance comparison between the
proposed technology and that technology which
[[Page 54]]
provides the maximum possible reduction of pollution;
(5) An examination of the environmental compliance of the facility,
including an analysis of its ability to meet applicable standards and
criteria when using both the proposed fuel and the alternate fuel(s)
which would provide the basis for the exemption. All such analysis must
be based on accepted analytical techniques, such as air quality
modeling, and reflect current conditions of the area which would be
affected by the facility. The petitioner is responsible for obtaining
the necessary data to accurately characterize these conditions.
Environmental compliance must be examined in the context of available
pollution control equipment which would provide the maximum possible
reduction of pollution. The analysis must contain: (i) Requests for bids
and other inquiries made and responses received by the petitioner
concerning the availability and performance of pollution control
equipment; or (ii) other comparable evidence such as technical studies
documenting the efficacy of equipment to meet applicable requirements;
(6) An examination of any regulatory options available to the
petitioner in seeking to achieve environmental compliance (such as
offsets, variances and State Implementation Plan (SIP) revisions); and
(7) Any other documentation which demonstrates an inability to
comply with applicable environmental requirements;
(8) No alternate power supply exists as required under Sec. 503.8
of these regulations;
(9) Use of mixtures is not feasible, as required under Sec. 503.9
of these regulations;
(10) Alternative sites are not available, as required under Sec.
503.11 of these regulations;
(11) Environmental impact analysis, as required under Sec. 503.13
of these regulations; and
(12) Fuels search, as required under Sec. 503.14 of these
regulations.
(d) Certification alternative. (1) To qualify for this exemption, in
lieu of meeting the evidentiary requirements of paragraph (c) of this
section, a petitioner may certify that:
(i) The site for the facility is or will be located in a Class I
area or Class II area in which the allowable increment established by
law has been consumed, as defined in part C of the Clean Air Act; the
use of an alternate fuel will cause or contribute to concentrations of
pollutants which would exceed the maximum allowable increases in a Class
I or Class II area even with the application of best available control
technology; the site for the facility is or will be located in a non-
attainment area as defined in part D of the Clean Air Act for any
pollutant which would be emitted by the facility; or, even with the
application of the lowest achievable emission rate, the use of an
alternate fuel will cause or contribute to concentrations in an air
quality control region of a pollutant for which any national ambient air
quality standard is or would be exceeded;
(ii) No alternate power supply exists, as required under Sec. 503.8
of these regulations;
(iii) Alternative sites are not available, as required under Sec.
503.11 of these regulations; and
(iv) Use of mixtures is not feasible, as required under Sec. 503.19
of these regulations.
(2) A petition by certification under this paragraph must include:
(i) Duly executed certifications required under paragraph (d)(1) of
this section;
(ii) Exhibits containing the basis for the certifications required
under paragraph (d)(1) of this section (including those factual and
analytical materials deemed by the petitioner to be sufficient to
support the granting of this exemption);
(iii) Environmental impact analysis, as required under Sec. 503.13
of these regulations; and
(iv) Fuels search, as required under Sec. 503.14 of these
regulations.
[46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52895, Dec. 22, 1989]
Sec. 503.35 Inability to obtain adequate capital.
(a) Eligibility. Section 212(a)(1)(D) of the Act provides for a
permanent exemption due to inability to obtain adequate capital. To
qualify, a petitioner must certify that:
[[Page 55]]
(1) Despite good faith efforts the petitioner will be unable to
comply with the applicable prohibitions imposed by the Act because the
additional capital required for an alternate fuel-capable unit beyond
that required for the proposed unit cannot be raised;
(2) The additional capital cannot be raised:
(i) Due to specific restrictions (e.g., convenants on existing
bonds) which constrain management's ability to raise debt or equity
capital;
(ii) Without a substantial dilution of shareholder equity;
(iii) Without an unreasonably adverse affect on the utility's credit
rating; or
(iv) In the case of non-investor-owned public utilities, without
jeopardizing the utility's ability to recover its capital investment,
through tariffs, without unreasonably adverse economic effect on its
service area (such as adverse impacts on local industry or undue
hardship to ratepayers).
(3) No alternative power supply exists, as required under Sec.
503.8 of these regulations;
(4) Use of mixtures is not feasible, as required under Sec. 503.9
of these regulations; and
(5) Alternative sites are not available, as required under Sec.
503.11 of these regulations.
(b) Evidence required in support of a petition. A petition must
include the following evidence in order to make the demonstration
required by this section:
(1) Duly executed certifications required under paragraph (a) of
this section;
(2) Exhibits containing the basis for the certifications required
under paragraph (a) of this section (including those factual and
analytical materials deemed by the petitioner to be sufficient to
support the granting of this exemption);
(3) Environmental impact analysis, as required under Sec. 503.13 of
these regulations; and
(4) Fuels search, as required under Sec. 503.14 of these
regulations.
[46 FR 59903, Dec. 7, 1981, as amended at 47 FR 15315, Apr. 9, 1982; 54
FR 52895, Dec. 22, 1989]
Sec. 503.36 State or local requirements.
(a) Eligibility. Section 212(b) of the Act provides for an exemption
due to certain State or local requirements. To qualify a petitioner must
certify that:
(1) With respect to the proposed site of the unit, the operation or
construction of the new unit using an alternate fuel is infeasible
because of a State of local requirement other than a building code,
nuisance, or zoning law;
(2) The petitioner has made a good faith effort to obtain a variance
from the State or local requirement but has been unable to do so or has
demonstrated why none is available;
(3) The granting of the exemption would be in the public interest
and would be consistent with the purposes of the Act;
(4) The petitioner is not entitled to an exemption for lack of
alternate fuel supply, site limitation, environmental requirements, or
inability to obtain adequate capital at the site of the proposed
powerplant or at any reasonable alternative site for the alternate
fuel(s) considered;
(5) At the proposed site and every reasonable alternative site where
the petitioner is not entitled to an exemption for lack of alternate
fuel supply, site limitation, environmental requirements, or inability
to obtain adequate capital, the petitioner nevertheless would be barred
at each such proposed or alternate site from burning an alternate fuel
by reason of a State or local requirement;
(6) No alternate power supply exists, as required under Sec. 503.8
of these regulations; and
(7) Use of mixtures is not feasible, as required under Sec. 503.9
of these regulations.
(b) Evidence required in support of a petition. The petition must
include the following evidence in order to make the demonstration
required by this section:
(1) Duly executed certifications required under paragraph (a) of
this section;
(2) Exhibits containing the basis for the certifications required
under paragraph (a) of this section (including those factual and
analytical materials
[[Page 56]]
deemed by the petitioner to be sufficient to support the granting of
this exemption);
(3) Environmental impact analysis, as required under Sec. 503.13 of
these regulations; and
(4) Fuels search, as required under Sec. 503.14 of these
regulations.
[46 FR 59903, Dec. 7, 1981; 46 FR 63033, Dec. 30, 1981, as amended at 54
FR 52895, Dec. 22, 1989]
Sec. 503.37 Cogeneration.
The following table may be used to determine eligibility for a
permanent exemption based on oil and natural gas savings.
Average Annual Utilization of Oil and Natural Gas for Electricity
Generation by State
[BTU's per KWHR sold]
------------------------------------------------------------------------
Oil/gas
State name savings
Btu/kWh
------------------------------------------------------------------------
Alabama....................................................... 33
Arizona....................................................... 802
Arkansas...................................................... 1,363
California.................................................... 3,502
Colorado...................................................... 289
Connecticut................................................... 3,924
Delaware...................................................... 3,478
Washington, DC................................................ 895
Florida....................................................... 3,177
Georgia....................................................... 45
Idaho......................................................... 0
Illinois...................................................... 250
Indiana....................................................... 53
Iowa.......................................................... 147
Kansas........................................................ 686
Kentucky...................................................... 34
Louisiana..................................................... 4,189
Maine......................................................... 2,560
Maryland...................................................... 895
Massachusetts................................................. 5,250
Michigan...................................................... 256
Minnesota..................................................... 151
Mississippi................................................... 1,519
Missouri...................................................... 57
Montana....................................................... 60
Nebraska...................................................... 139
Nevada........................................................ 761
New Hampshire................................................. 2,695
New Jersey.................................................... 1,894
New Mexico.................................................... 1,528
New York...................................................... 4,219
North Carolina................................................ 49
North Dakota.................................................. 47
Ohio.......................................................... 36
Oklahoma...................................................... 5,180
Oregon........................................................ 0
Pennsylvania.................................................. 771
Rhode Island.................................................. 1,800
South Carolina................................................ 24
South Dakota.................................................. 36
Tennessee..................................................... 20
Texas......................................................... 4,899
Utah.......................................................... 107
Vermont....................................................... 105
Virginia...................................................... 460
Washington.................................................... 3
West Virginia................................................. 126
Wisconsin..................................................... 72
Wyoming....................................................... 75
------------------------------------------------------------------------
Data are based upon 1987 oil, natural gas and electricity statistics
published by DOE's Energy Information Administration.
Example: The proposed cogeneration project is to be located in
Massachusetts and is to use distillate oil. It will have a capacity of
50 MW, an average annual heat rate of 7600 BTU/KWHR, and be operated at
a capacity factor of 90%. The annual fuel consumption is therefore
calculated to be 2,996 x 10\9\ Btu/yr. (50,000 KW x 7600 BTU/KWHR x .9 x
8760 HR/YR) The oil and gas backed off the grid would be calculated to
be .2070 x 10\9\ BTU/YR. (50,000 KW x 5250 BTU/KWHR x .9 x 8760 HR/YR)
since the proposed unit would consume more oil that would be ``backed
off'' the grid, the unit would not be eligible for a permanent exemption
based on savings of oil and natural gas.
[54 FR 52895, Dec. 22, 1989]
Sec. 503.38 Permanent exemption for certain fuel mixtures containing
natural gas or petroleum.
(a) Eligibility. Section 212(d) of the Act provides for a permanent
exemption for certain fuel mixtures. To qualify a petitioner must
certify that:
(1) The petitioner proposes to use a mixture of natural gas or
petroleum and an alternate fuel as a primary energy source;
(2) The amount of petroleum or natural gas proposed to be used in
the mixture will not exceed the minimum percentage of the total annual
Btu heat input of the primary energy sources needed to maintain
operational reliability of the unit consistent with maintaining a
reasonable level of fuel efficiency; and
(3) No alternate power supply exists, as required under Sec. 503.8
of these regulations.
(b) Evidence required in support of a petition. The petition must
include the following evidence in order to make
[[Page 57]]
the demonstration required by this section:
(1) Duly executed certifications required under paragraph (a) of
this section;
(2) Exhibits containing the basis for the certifications required
under paragraph (a) of this section (including those factual and
analytical materials deemed by the petitioner to be sufficient to
support the granting of this exemption);
(3) A description of the fuel mixture, including component fuels and
the percentage of each such fuel to be used; and
(4) Environmental impact analysis as required under Sec. 503.13 of
these regulations.
(c) Solar mixtures. OFE will grant a permanent mixtures exemption
for the use of a mixture of solar energy (including wind, tide, and
other intermittent sources) and petroleum or natural gas, where:
(1) Solar energy will account for at least 20 percent of the total
annual Btu heat input, of the primary energy sources of the unit; and
(2) Petitioner meets the eligibility and evidentiary requirements of
paragraphs (a) and (c) of this section.
[46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52896, Dec. 22, 1989]
Sec. Sec. 503.39-503.44 [Reserved]
PART 504_EXISTING POWERPLANTS--Table of Contents
Sec.
504.2 Purpose and scope.
504.3-504.4 [Reserved]
504.5 Prohibitions by order (certifying powerplants under section 301 of
FUA, as amended).
504.6 Prohibitions by order (case-by-case).
504.7 Prohibition against excessive use of petroleum or natural gas in
mixtures--electing powerplants.
504.8 Prohibitions against excessive use of petroleum or natural gas in
mixtures--certifying powerplants.
504.9 Environmental requirements for certifying powerplants.
Appendix I to Part 504--Procedures for the Computation of the Real Cost
of Capital
Appendix II to Part 504--Fuel Price Computation
Authority: Department of Energy Organization Act, Pub. L. 95-91, 91
Stat. 565 (42 U.S.C. Sec. 7101 et seq.); Powerplant and Industrial Fuel
Use Act of 1978, Pub. L. 95-620, 92 Stat. 3289 (42 U.S.C. 8301 et seq.);
Energy Security Act, Pub. L. 96-294, 94 Stat. 611 (42 U.S.C. 8701 et
seq.); E.O. 1209, 42 FR 46267, Sept. 15, 1977.
Source: 45 FR 53692, Aug. 12, 1980, unless otherwise noted.
(Approved by the Office of Management and Budget under control number
1903-0075. See 46 FR 63209, Dec. 31, 1981)
Sec. 504.2 Purpose and scope.
(a) Sections 504.5, 504.6, and 504.8, set forth the prohibitions
that OFP, pursuant to section 301 of the Act, as amended, may impose
upon existing powerplants after a review of the certification and
prohibition order compliance schedule submitted by the owner or operator
of a powerplant. Sections 504.5 and 504.8 are explanatory sections, and
Sec. 504.6 provides the informational requirements necessary to support
the certification.
(b) Sections 504.6 and 504.7, set forth the prohibitions that OFP
may impose upon certain electing powerplants, pursuant to former section
301 (b) and (c) of FUA, where OFP can make the findings as to the unit's
technical capability and financial feasibility to use coal or another
alternate fuel as a primary energy source. The prohibitions may be made
to apply to electing powerplants unless an exemption is granted by OFP
under the provisions of the Final Rule for Existing Facilities (10 CFR
parts 500, 501 and 504) published at 45 FR 53682, Aug. 12, 1980 and 46
FR 59872, Dec. 7, 1981. Any person who owns, controls, rents or leases
an existing electing powerplant may be subject to the prohibitions
imposed by and the sanctions provided for in the Act or these
regulations, if OFP can make the findings required by former section 301
(b) and (c) of FUA.
(Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 (42
U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of 1978,
Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.); Omnibus Budget
Reconciliation Act of 1981, Pub. L. 97-35; E.O. 12009, 42 FR 46267,
Sept. 15, 1977)
[47 FR 50849, Nov. 10, 1982]
[[Page 58]]
Sec. Sec. 504.3-504.4 [Reserved]
Sec. 504.5 Prohibitions by order (certifying powerplants under
section 301 of FUA, as amended).
(a) In the case of existing powerplants, OFP may prohibit, in
accordance with section 301 of the Act, as amended, the use of petroleum
or natural gas as a primary energy source where the owner or operator of
the powerplant presents a complete certification concurred in by OFP.
The certification, which may be presented at any time, pertains to the
unit's technical capability and financial feasibility to use coal or
another alternate fuel as a primary energy source in the unit. The
informational requirements necessary to support a certification are
contained in Sec. 504.6 of these regulations. A prohibition compliance
schedule which meets the requirements of Sec. 504.5(d) shall also be
submitted.
(b) If OFP concurs with the certification, a prohibition order on
the powerplant's use of petroleum or natural gas will be issued
following the procedure outlined in Sec. 501.52 of these regulations.
(c) The petitioner may amend its certification at any time prior to
the effective date of the prohibitions contained in the final
prohibition order in order to take into account changes in relevant
facts and circumstances by following the procedure contained in Sec.
501.52(d).
(d) Prohibition order compliance schedule. The certification
described above, which forms the basis for the issuance of a prohibition
order to a powerplant, shall include a prohibition order compliance
schedule. The compliance schedule should contain the following:
(1) A schedule of progressive events involved in the conversion
project, including construction of any facilities for the production of
fuel or fuel handling equipment, and contracts for the purchase of
alternate fuels, and estimated date of compliance with the applicable
prohibitions of the Act; and
(2) A schedule indicating estimated dates for obtaining necessary
federal, state, and local permits and approvals. Any prohibition order
issued under the certification provisions of Sec. Sec. 504.5, 504.6,
and 504.8 will be subject to appropriate conditions subsequent so as to
delay the effectiveness of the prohibitions contained in the final
prohibition order until the above events or permits have occurred or
been obtained.
(Approved by the Office of Management and Budget under control number
1903-0077)
(Department of Energy Organization Act, Pub. L. 95-91 (42 U.S.C. 7101 et
seq.); Energy Supply and Environmental Coordination Act of 1974, Pub. L.
93-319, as amended by Pub. L. 94-163, Pub. L. 95-70, and Pub. L. 95-620
(15 U.S.C. 719 et seq.); Powerplant and Industrial Fuel Use Act of 1978,
Pub. L. 95-620, as amended by Pub. L. 97-35 (42 U.S.C. 8301 et seq.);
Omnibus Budget Reconciliation Act of 1981, Pub. L. 97-35)
[47 FR 17044, Apr. 21, 1982]
Sec. 504.6 Prohibitions by order (case-by-case).
(a) OFP may prohibit, by order, the use of natural gas or petroleum
as a primary energy source in existing powerplants under certain
circumstances. In the case of certifying powerplants under section 301
of the Act, as amended, the petitioner must present evidence to support
the certification, required by Sec. 504.6 (c), (d), (e), and (f). In
the case of electing powerplants, OFP must make the following findings
required by Sec. 504.6 (c), (d), (e), and (f), in order to issue a
prohibition order to the unit, pursuant to former section 301 (b) or
(c):
(1) The unit currently has, or previously had, the technical
capability to use an alternate fuel as a primary energy source;
(2) The unit has this technical capability now, or it could have the
technical capability without:
(i) A substantial physical modification of the unit; or
(ii) A substantial reduction in the rated capacity of the unit; and
(3) It is financially feasible for the unit to use an alternate fuel
as its primary energy source.
(b) In the case of electing powerplants, OFP must make a proposed
finding regarding the technical capability of a unit to use alternate
fuel as identified in paragraph (a) (1) of this section prior to the
date of publication of the notice of the proposed prohibition. OFP will
publish this finding in
[[Page 59]]
The Federal Register along with the notice of the proposed prohibition.
(c) Technical capability. (1) In the case of electing and certifying
powerplants, OFP will consider ``technical capability'' on a case-by-
case basis in order to make the required finding. In the case of a
certifying powerplant, the powerplant should present information to
support the certification relevant to the considerations set forth
below. OFP will consider the ability of the unit, from the point of fuel
intake to physically sustain combustion of a given fuel and to maintain
heat transfer. \2\
---------------------------------------------------------------------------
\2\ OFP will not ordinarily consider the nature or absence of
appurtenances outside the unit. For example, OFP will examine the
furnace configuration and ash removal capability but will not normally
consider the need to install pollution control equipment as a measure of
technical capability. Furthermore, OFP will not normally conclude that
the absence of fuel handling equipment, such as conveyor belts,
pulverizers, or unloading facilities, bears on the issue of a unit's
``technical capability'' to burn an alternate fuel.
---------------------------------------------------------------------------
(2) OFP considers that a unit ``had'' the technical capability to
use an alternate fuel if the unit was once able to burn that fuel
(regardless of whether the unit was expressly designed to burn that fuel
or whether it ever actually did burn it), but is no longer able to do so
at the present due to temporary or permanent alterations to the unit
itself. \3\
---------------------------------------------------------------------------
\3\ For example, a unit which at one time burned solid coal but
which could no longer do so because its coal firing ports and sluicing
channels had been cemented over, would be classified as having ``had''
the technical capability to use coal. (The question of whether it again
``could have'' such capability without ``substantial physical
modification'' is a separate and additional question.)
---------------------------------------------------------------------------
(3) A unit ``has'' the technical capability to use an alternate fuel
if it can burn an alternate fuel, notwithstanding the fact that
adjustments must be made to the unit beforehand or that pollution
control equipment may be required to meet air quality requirements. \4\
---------------------------------------------------------------------------
\4\ A unit designed to burn natural gas shall be presumed to have
the technical capability to burn a synthetic fuel such as medium Btu gas
from coal (assuming such gas is available unless convincing evidence to
the contrary is submitted in rebuttal). Also a unit designed to burn oil
may, depending upon the chemical characteristics, be a unit that ``has''
the technical capability to burn liquefied coal. The fact that certain
adjustments may be necessary does not render this a ``hypothetical'' as
opposed to a ``real'' capability. Even an oil fired unit converting from
the use of 2 distillate to 6 residual oil may be required to adjust or
replace burner nozzles and add soot blowers.
---------------------------------------------------------------------------
(d) Substantial physical modification. In the case of electing and
certifying powerplants, OFP will make its determination on whether a
physical modification to a unit is ``substantial'' on a case-by-case
basis. In the case of certifying powerplants, OFP will consider the
factors set forth below for the purpose of concurrence in the
certification. OFP will consider physical modifications made to the unit
as ``substantial'' where warranted by the magnitude and complexity of
the engineering task or where the modification would impact severely
upon operations at the site. \5\ OFP will not, however, assess physical
modification on the basis of cost.
---------------------------------------------------------------------------
\5\ Generally, modification of a unit to burn coal or an alternate
fuel will be considered insubstantial if significant alterations to the
boiler, such as a change to the furnace configuration or a complete
respacing of the tubes, are not required. Minor alterations such as
replacement of burners or additions of soot blowers, and additions or
alterations outside the boiler, shall not cause the modification to be
substantial.
---------------------------------------------------------------------------
(e) Substantial reduction in rated capacity. In the case of electing
and certifying powerplants, OFP will make this determination on the
basis of the following factors. A certifying powerplant should present
information to support its certification regarding these factors in
order for OFP to make its review for concurrence.
(1) OFP regards a unit's derating of 25 percent or more, as a result
of converting a unit from oil or gas to an alternate fuel, as
substantial.
(2) OFP will presume that a derating of less than 10 percent, as a
result of converting a unit from oil or gas to an alternate fuel, is not
substantial unless
[[Page 60]]
convincing evidence to the contrary is submitted in rebuttal. \6\
---------------------------------------------------------------------------
\6\ For example, units that are the subject of a prohibition order
will not have installed any operating air pollution control equipment
sufficient to burn coal in compliance with applicable environmental
equipments. The installation and use of air pollution control equipment
alone can, in many cases, produce a derating. Moreover, the shift to
coal itself will, because of differences in energy density and fuel flow
characteristics, typically involve some derating.
---------------------------------------------------------------------------
(3) OFP will assess units for which a derating is claimed of 10
percent or more, but less than 25 percent, on a case-by-case.
(4) In assessing whether a unit's derating is not substantial, OFP
will consider the impact of a reduction in rated capacity of the unit
taking into consideration all necessary appurtenances such as air
pollution control equipment required to burn an alternate fuel in
compliance with environmental requirements expected to be applicable at
the date the prohibitions contained in the final prohibition order
become effective. However, the potential order recipient may raise in
rebuttal the impact of derating on the site at which the unit is located
and on the system as well as on the unit itself, if under paragraph
(e)(2), or case-by-case, if under paragraph (e)(3) of this section.
(f) Financial feasibility. In the case of certifying and electing
powerplants, OFP will make this finding based on the following
considerations. A certifying powerplant should present information to
support its certification relevant to these considerations in order for
OFP to make its review for concurrence. Conversion of a unit to burn
coal or an alternate fuel shall be deemed financially feasible if the
firm has the actual ability to obtain sufficient capital to finance the
conversion, including all necessary land, coal and ash handling
equipment, pollution control equipment, and all other necessary
expenditures, without violating legal restrictions on its ability to
raise debt or equity capital, unreasonably diluting shareholder equity,
or unreasonably adversely affecting its credit rating. OFP will consider
any economic or financial factors presented by the proposed order
recipient in determining the firm's ability or inability to finance the
conversion including, but not limited to, the following:
(1) The required coverage ratios on the firm's debt and preferred
stock;
(2) The firm's investment program; and
(3) The financial impact of the conversion, including other
conversions which are or may be undertaken voluntarily by the proposed
order recipient or imposed upon the recipient's system by the Act, and
including pending or planned construction or reconstruction of
alternate-fuel-fired plants and plants exempt from FUA prohibitions. \7\
Where helpful in clarifying the long-term financial feasibility of a
conversion, DOE may analyze the economic benefits anticipated from
operation of the converted unit or units using coal or other alternate
fuel relative to those from continued operation using petroleum or
natural gas.
---------------------------------------------------------------------------
\7\ OFP will not require the proposed order recipient to cancel or
defer construction or reconstruction of any alternate-fuel-fired
facility, or any facility exempt from the prohibitions of the Act, for
which a decision to finance such facility has been made by the
appropriate company official before the publication of the prohibition
order. The proposed order recipient may choose to cancel or defer any
such facility.
(Approved by the Office of Management and Budget under control number
---------------------------------------------------------------------------
1903-0077)
(Energy Supply and Environmental Coordination Act of 1974, Pub. L. 93-
319, as amended by Pub. L. 94-163, Pub. L. 95-70, and 15 U.S.C. 719 et
seq.; Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565
(42 U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of
1978, Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.); Omnibus
Budget Reconciliation Act of 1981 (Pub. L. 97-35); E.O. 12009, 42 FR
46267, Sept. 15, 1977)
[45 FR 53692, Aug. 12, 1980, as amended at 47 FR 17044, Apr. 21, 1982;
47 FR 50849, Nov. 10, 1982]
Sec. 504.7 Prohibition against excessive use of petroleum or natural
gas in mixtures--electing powerplants.
(a) In the case of electing powerplants, if OFP finds that it is
technically and financially feasible for a unit to use a mixture of
petroleum or natural gas and an alternate fuel as its primary energy
source, OFP may prohibit, by order, the use in that unit of
[[Page 61]]
petroleum or natural gas, or both, in amounts exceeding the minimum
amount necessary to maintain reliability of operation consistent with
maintaining reasonable fuel efficiency of the mixture.
(b) In making the technical feasibility finding required by former
section 301 (b) and (c) of the Act and paragraph (a) of this section,
OFP may weigh ``physical modification'' or ``derating of the unit,'' but
these considerations, by themselves, will not control the technical
feasibility finding. A technical feasibility finding might be made
notwithstanding the need for substantial physical modification. The
economic consequences of a substantial physical modification are taken
into account in determining financial feasibility.
(Energy Supply and Environmental Coordination Act of 1974, Pub. L. 93-
319, as amended by Pub. L. 94-163, Pub. L. 95-70, and 15 U.S.C. 719 et
seq.; Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565
(42 U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of
1978, Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.); Omnibus
Budget Reconciliation Act of 1981 (Pub. L. 97-35); E.O. 12009, 42 FR
46267, Sept. 15, 1977)
[47 FR 17045, Apr. 21, 1982, and 47 FR 50850, Nov. 10, 1982]
Sec. 504.8 Prohibitions against excessive use of petroleum or
natural gas in mixtures--certifying powerplants.
(a) In the case of certifying powerplants, OFP may prohibit the use
of petroleum or natural gas in such powerplant in amounts exceeding the
minimum amount necessary to maintain reliability of operation consistent
with maintaining the reasonable fuel efficiency of the mixture. This
authority is contained in section 301(c) of the Act, as amended. The
owner or operator of the powerplant may certify at any time to OFP that
it is technically capable and financially feasible for the unit to use a
mixture of petroleum or natural gas and coal or another alternate fuel
as a primary energy source. In assessing whether the unit is technically
capable of using a mixture of petroleum or natural gas and coal or
another alternate fuel as a primary energy source, for purposes of this
section, the extent of any physical modification necessary to convert
the unit and any concomitant reduction in rated capacity are not
relevant factors. So long as a unit as proposed to be modified would be
technically capable of using the mixture as a primary energy source
under Sec. 504.6(c), this certification requirement shall be deemed
met. The criteria for certification of financial feasibility are found
at Sec. 504.6(f). In addition, the powerplant's owner or operator must
submit a prohibition compliance schedule, which meets the requirements
of Sec. 504.5(d).
(b) If OFP concurs with the certification, a prohibition order
against the unit's excessive use of petroleum or natural gas in the
mixture will be issued following the procedure outlined in Sec. 501.52
of these regulations.
(c) The petitioner may seek to amend its certification in order to
take into account changes in relevant facts and circumstances by
following the procedure contained in Sec. 501.52(d).
Note: The authority of OFP implemented under this section should not
be confused with the other two fuel mixture provisions of these
regulations. One is the general requirement that petitioners for
permanent exemptions demonstrate that the use of a mixture of natural
gas or petroleum and an alternate fuel is not economically or
technically feasible (See Sec. 504.15). The second is the permanent
fuel mixtures exemption itself (See Sec. 504.56).
(Approved by the Office of Management and Budget under control number
1903-0077)
(Department of Energy Organization Act, Pub. L. 95-91 (42 U.S.C. 7101 et
seq.); Energy Supply and Environmental Coordination Act of 1974, Pub. L.
93-319, as amended by Pub. L. 94-163, Pub. L. 95-70, and Pub. L. 95-620
(15 U.S.C. 719 et seq.); Powerplant and Industrial Fuel Use Act of 1978,
Pub. L. 95-620, as amended by Pub. L. 97-35 (42 U.S.C. 8301 et seq.);
Omnibus Budget Reconciliation Act of 1981, Pub. L. 97-35)
[47 FR 17045, Apr. 21, 1982]
Sec. 504.9 Environmental requirements for certifying powerplants.
Under Sec. Sec. 501.52, 504.5 and 504.6 of these regulations, OFP
may prohibit, in accordance with section 301 and section 303 (a) or (b)
of FUA, as amended, the use of natural gas or petroleum, or both, as a
primary energy source in any certifying powerplant. Under sections
301(c) and 303(a) of FUA, as amended, and Sec. Sec. 501.52, 504.6, and
504.8 of
[[Page 62]]
these regulations, OFP may prohibit the excessive use of natural gas or
petroleum in a mixture with an alternate fuel as a primary energy source
in a certifying powerplant.
(a) NEPA compliance. Except as provided in paragraph (c) of this
section, where the owner or operator of a powerplant seeks to obtain an
OFP prohibition order through the certification procedure, and did not
hold either a proposed prohibition order under former section 301 of FUA
or pending order under section 2 of ESECA, it will be responsible for
the costs of preparing any necessary Environmental Assessment (EA) or
Environmental Impact Statement (EIS) arising from OFP's obligation to
comply with NEPA. The powerplant owner or operator shall enter into a
contract with an independent party selected by OFP, who is qualified to
conduct an environmental review and prepare an EA or EIS, as
appropriate, and who does not have a financial or other interest in the
outcome of the proceedings, under the supervision of OFP. The NEPA
process must be completed and approved before OFP will issue a final
prohibition order based on the certification.
(b) Environmental review procedure. Except as provided in paragraph
(c) of this section, environmental documents, including the EA and EIS,
where necessary, will be prepared utilizing the process set forth above.
OFP, the powerplant owner or operator and the independent third party
shall enter into an agreement for the owner or operator to engage and
pay directly for the services of the qualified third party to prepare
the necessary documents. The third party will execute an OFP prepared
disclosure document stating that he does not have any conflict of
interest, financial or otherwise, in the outcome of either the
environmental process or the prohibition order proceeding. The agreement
shall outline the responsibilities of each party and his relationship to
the other two parties regarding the work to be done or supervised. OFP
shall approve the information to be developed and supervise the
gathering, analysis and presentation of the information. In addition,
OFP will have the authority to approve and modify any statement,
analysis, and conclusion contained in the third party prepared
environmental documents.
(c) Financial hardship. Whenever the bona fide estimate of the costs
associated with NEPA compliance, if borne by the powerplant owner or
operator, would make the conversion financially infeasible, OFP may
waive the requirement set forth in paragraphs (a) and (b) of this
section and perform the necessary environmental review.
(Approved by the Office of Management and Budget under control number
1903-0077)
(Department of Energy Organization Act, Pub. L. 95-91 (42 U.S.C. 7101 et
seq.); Energy Supply and Environmental Coordination Act of 1974, Pub. L.
93-319, as amended by Pub. L. 94-163, Pub. L. 95-70, and Pub. L. 95-620
(15 U.S.C. 719 et seq.); Powerplant and Industrial Fuel Use Act of 1978,
Pub. L. 95-620, as amended by Pub. L. 97-35 (42 U.S.C. 8301 et seq.);
Omnibus Budget Reconciliation Act of 1981, Pub. L. 97-35)
[47 FR 17046, Apr. 21, 1982]
Sec. Appendix I to Part 504--Procedures for the Computation of the Real
Cost of Capital
(a) The firm's real after-tax weighted average marginal cost of
capital (K) is computed with equation 1.
[GRAPHIC] [TIFF OMITTED] TC01OC91.003
[[Page 63]]
The terms in equation 1 are defined as follows:
Wd = Fraction of existing capital structure which is debt.
Wp = Fraction of existing capital structure which is
preferred equity.
We = Fraction of existing capital structure which is common
equity and retained earnings.
Rd = Predicted nominal cost of long term debt expressed as a
fraction.
Rp = Predicted nominal cost of preferred stock expressed as a
fraction.
Re = Predicted nominal cost of common stock expressed as a
fraction.
INF = Percentage change in the GNP implicit price deflator over the past
12 months expressed as a fraction.
fd = Flotation cost of debt expressed as a fraction.
fp = Flotation cost of preferred stock expressed as a
fraction.
fe = Flotation cost of common stock expressed as a fraction.
t = Marginal federal income tax rate for the current year.
(b) Information on parameters used in Equation 1. (1) The parameters
used in equation 1 will be the best practicable estimates. They will be
obtained from the firm, accepted rating services (e.g., Standard &
Poors, Moody's), government publications, accepted financial
publications, annual financial reports and statements of firms, and
investment bankers.
(2) The predicted nominal cost of debt (Rd) may be
estimated by determining the current average yield on newly issued
bonds--industrial or utility as appropriate--which have the same rating
as the firm's most recent debt issue.
(3) The predicted nominal cost of preferred stock (Rp)
may be estimated by determining the current average yield on newly
issued preferred stock--industrial or utility as appropriate--which has
the same rating as the firm's most recent preferred stock issue.
(4)(A) The predicted nominal cost of common stock (Re) is
computed with equation 2.
Eq 2 Re = Rf + B x Rm
where:
Rf = The risk free interest rate--the average of the most
recent auction rates of U.S. Government 13-week Treasury
Bills,
B = The ``beta'' coefficient--the relationship between the excess return
on common stock and the excess return on the S&P 500 composite
index, and
Rm = The mean excess return on the S&P 500 composite index--
the mean of the difference between the return on the S&P 500
composite index and the risk free interest rate for the years
1926-1976 as computed by Ibbotson and Sinquefield(1)--9.2%
(B) The ``beta'' coefficient is computed with regression analysis
techniques. The regression equation is Equation 3.
(R et - R ft) = A + B(R
mt - R ft) + e
t
Eq. 3
where
[GRAPHIC] [TIFF OMITTED] TC01OC91.004
Rft = The risk free interest rate in month t--the average of
the yields on 13-week treasury bills auctioned in month t.(2)
A = A constant which should not be significantly different than zero.
[GRAPHIC] [TIFF OMITTED] TC01OC91.005
e t = The error in month t.
PRCC t = Closing market prices of the firm's common stock at
the end of month t fully adjusted for splits and stock
dividends.
DIVRATE t = The sum of the dividends paid in the fiscal year
which contain month t.
V sp,t = The market value of ``one share'' of the S&P 500
composite index at the end of month t.
D sp,t = The estimated monthly income received from holding
``one share'' of the S&P 500 in month t.
The regression analysis is done with sixty months of data. The first
month (t = 1) is sixty months before the month in which the firm's
current fiscal year started. The last month (t = 60) is the last month
of the past fiscal year.
(5) Where the parameters specified above are not obtainable,
alternate parameters that closely correspond to those above may be used.
This may include substituting a bond yield for nominal cost of preferred
stock where the former is not available. Where the capital structure
does not consist of any debt, preferred equity, or common equity, an
alternate methodology to predict the firm's real after-tax marginal cost
of capital may be used.
Example of using alternate parameters that closely correspond to
those above are:
(A) In the case of industrials, who do not typically issue preferred
stock, the predicted nominal cost of preferred stock (RP) can
be estimated by determining the current average yield on newly issued
industrial bonds which have the same rating as the firm's most recent
debt issue.
(B) If necessary, the following assumptions can be made to determine
the nominal cost of debt or preferred stock and their flotation costs.
(i) Where a company issued privately placed debt that was not rated,
the rating, applied to preferred stock could be used to
[[Page 64]]
determine the cost of debt and its flotation cost.
(ii) Where a company issued privately placed preferred stock that
was not rated, the rating applied to debt could be used to determine the
cost of preferred stock and its flotation costs.
(iii) In the case where all issues were privately placed, the
current average yield on all newly issued debt or preferred could be
used to determine the cost of debt or preferred respectively, and an
average flotation cost, for debt or preferred, could be used.
(C) Evidence Requirements. Copies of this calculation with notations
as to the source of the data must be submitted.
Footnotes
(1) Ibbotson, R.E. and R.A. Sinquefield, Stocks, Bonds, Bills, and
Inflation, Charlottesville, Va.: The Financial Analysts Research
Foundation, 1977, cited by Ernst & Whinney, Costs of Capital and Rates
of Return for Industrial Firms and Class A&B Electric Utility Firms,
June 1979, p. 3-8.
(2) As an option, R f t can be developed with the
following equation:
[GRAPHIC] [TIFF OMITTED] TC01OC91.006
where:
D t = The average annual yield on three month U.S. Treasury
bills reported in the Survey of Current Business auctioned in
month t--which is reported using the bank discount method.
N = Number of days to maturity.
[46 FR 59920, Dec. 7, 1981]
Sec. Appendix II to Part 504--Fuel Price Computation
(a) Introduction. This appendix provides the equations and
parameters needed to specify the price of the delivered fuels to be used
in the cost calculations associated with parts 503 and 504 of these
regulations. The delivered price of the fuel to be used to calculate
delivered fuel expenses must reflect (1) the price of each fuel at the
time of the petition, and (2) the effects of future real price increases
for each fuel. The delivered price of an alternate fuel used to
calculate delivered fuel expenses must reflect the petitioner's
delivered price of the alternate fuel and the effects of real increases
in the price of that alternate fuel. Paragraphs (b), (c) and (d) below
provide the procedure to: (1) Calculate fuel price and inflation
indices; (2) account for projected real increases in fuel prices when
planning to burn one or more than one fuel; and (3) account for
projected real increases in the price of the alternate fuel. Table II-1
of this appendix (See paragraph (b)) contains example fuel price and
inflation indices based on the latest data appearing in the Energy
Information Administration's (EIA) Annual Energy Outlook (AEO).
The fuel price and inflation indices will change yearly with the
publication of the AEO. Revisions shall become effective after final
publication. However, the relevant set of parameters for a specific
petition for exemption will be the set in effect at the time the
petition is submitted or the set in effect at the time a decision is
rendered, whichever is more favorable to the petitioner.
(b) Computation of Fuel Price and Inflation Indices. (1) the
Petitioner is responsible for computing the annual fuel price and
inflation indices by using Equation II-1 and Equation II-2,
respectively. The petitioner may compute the fuel price index specified
in Equation II-1 or use his own price index. However, if he uses his own
price index, the source or the derivation of the index must be fully
documented and be contained in the evidential summary.
EQ II-2 is:
[GRAPHIC] [TIFF OMITTED] TC01OC91.007
where:
PXVi = The fuel price index for each fuel in year i. P
i = Price of fuel in year i.
P o = Price of fuel in base year.
EQ II-2 is:
[GRAPHIC] [TIFF OMITTED] TC01OC91.008
where:
IX i = The inflation index in year i.
GX i = The NIPA GNP price deflator for year i.
GX o = The NIPA GNP price deflator for the base year.
(2) The parameters to be used in EQ II-1 are the Base Case fuel
price projections found in EIA's current AEO.
(3) When computing annual inflation indices, the petitioner is to
use the Base Case National Macroeconomic Indicators (NIPA GNP Price
Deflator) contained in EIA's current AEO. If necessary, the petitioner
must rebase the projection to the same year used for the fuel price
projections. For example, in 1989 AEO projects the price deflator in
1982 dollars; this must be rebased to the year in which the petition is
filed. The methodology used to rebase the inflation indices must follow
standard statistical procedures and must be fully documented within the
petition. This index will remain frozen at the last year of the AEO's
projection for the remainder of the unit'(s) useful life.
(4) Table II-1 is provided as an example of the application of
equations II-1 and II-2. This table contains annual fuel price indices
[[Page 65]]
for distillate oil, residual oil, natural gas, and coal. It also
contains annual inflation indices. These values were computed from
information contained in Table A3 and Table A11 of EIA's AEO, 1989.
Table II-1: Price and Inflation Indices for use in the Cost Calculations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year Distillate (DPX) Residual (RPX) Natural gas (GPX) Coal (CPX) Inflation (IX)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1986 1.0000 1.0000 1.0000 1.0000 1.0000
1987 0.9810 1.2134 0.9508 0.9231 1.0334
1988 0.9429 0.9407 0.8934 0.8876 1.0658
1989 0.8929 0.9328 0.9057 0.8639 1.1054
1990 0.9905 1.0119 0.9221 0.9112 1.1607
1991 1.0381 1.0751 0.9344 0.9172 1.2204
1992 1.0929 1.1344 1.0205 0.9231 1.2836
1993 1.1595 1.2292 1.1148 0.9349 1.3512
1994 1.2286 1.3241 1.1844 0.9467 1.4214
1995 1.3000 1.4150 1.2705 0.9527 1.4960
1996 1.4000 1.5415 1.4016 0.9586 1.5768
1997 1.4762 1.6403 1.4918 0.9704 1.6585
1998 1.5452 1.7273 1.5615 0.9763 1.7410
1999 1.6143 1.7905 1.6475 0.9882 1.8235
2000 1.6690 1.8340 1.7049 0.9941 1.9025
2001 1.6690 I.8340 1.7049 0.9941 1.9025
2002 1.6690 1.8340 1.7049 0.9941 1.9025
2003 1.6690 1.8340 1.7049 0.9941 1.9025
2004 1.6690 1.8340 1.7049 0.9941 1.9025
2005 1.6690 1.8340 1.7049 0.9941 1.9025
2006 1.6690 1.8340 1.7049 0.9941 1.9025
2007 1.6690 1.8340 1.7049 0.9941 1.9025
2008 1.6690 1.8430 1.7049 0.9941 1.9025
2009 1.6690 1.8340 1.7049 0.9941 1.9025
2010 1.6690 1.8340 1.7049 0.9941 1.9025
--------------------------------------------------------------------------------------------------------------------------------------------------------
(C) Fuel Price Computation. (1) The delivered price of the proposed
fuel to be burned (FPB i) must reflect the real escalation
rate of the proposed fuel, and must be computed with Equation EQ II-3.
EQ-II-3 is: FPB i = MPB [PX i]
where:
FPB i = Price of the proposed fuel (distillate oil, residual
oil, or natural gas) in year i.
MPB = The current delivered market price of the proposed fuel.
PX i = The fuel price index value in year i, computed with
Equation II-1.
or:
(2) When planning to use more than one fuel in the proposed unit(s),
the petitioner must use Equation II-1 and Equation II-3 to calculate the
annual fuel price of each fuel to be used. The petitioner then must
estimate the proportion of each fuel to be burned annually over the
useful life of the unit(s). With these proportions and the respective
annual fuel prices for each fuel, the petitioner must compute an annual
weighted average fuel price. The methodology used to calculate the
weighted average fuel price must follow standard statistical procedures
and be fully documented within the petition.
(d) Fuel Price Computation--Alternate Fuel. The delivered price of
alternate fuel (PFAi) must reflect the real escalation rate
of alternate fuel and must be computed with Equation II-4.
Equation II-4 is:
PFAi = APF x apxi
where:
PFA = The price of the alternate fuel in year i.
APF -i = The current market price of the alternate fuel
f.o.b. the facility).
APX i = The alternate fuel price index value for year i,
computed with Equation II-1.
In most cases the alternate fuel will be coal. The petitioner must
use Equation II-1 (paragraph (b)) to compute the escalation rate
(APXi). If an alternate fuel other than coal is proposed the
source or the derivation of the index must be fully documented and be
contained in the evidential summary.
[54 FR 52896, Dec. 22, 1989]
PART 508 [RESERVED]
PART 516 [RESERVED]
[[Page 66]]
SUBCHAPTER G_NATURAL GAS (ECONOMIC REGULATORY ADMINISTRATION)
PART 580_CURTAILMENT PRIORITIES FOR ESSENTIAL AGRICULTURAL USES-
-Table of Contents
Sec.
580.01 Purpose.
580.02 Definitions.
580.03 Curtailment priorities.
580.04 Administrative procedures. [Reserved]
Authority: Secs. 401, 403, Pub. L. 95-621, 92 Stat. 3394-3395, 3396;
secs. 301(b), 402(a), Pub. L. 95-91, 91 Stat. 578, 594, (42 U.S.C.
7115(b), 7117(a)); E.O. 12009, 42 FR 46267.
Source: 44 FR 15646, Mar. 15, 1979, unless otherwise noted.
Sec. 580.01 Purpose.
The purpose of this part is to implement the authority granted to
the Secretary of Energy in section 401 of the Natural Gas Policy Act of
1978, Public Law 95-621, 92 Stat. 3394-3395 (1978).
Sec. 580.02 Definitions.
(a) Terms defined in section 2 of the Natural Gas Policy Act of 1978
shall have the same meaning, as applicable, for purposes of this part,
unless further defined in paragraph (b) of this section.
(b) The following definitions are applicable to this part:
(1) Commercial establishment means any establishment, (including
institutions and local, state and federal government agencies) engaged
primarily in the sale of goods or services, where natural gas is used
for purposes other than those involving manufacturing or electric power
generation.
(2) Essential agricultural use means any use of natural gas:
(i) For agricultural production, natural fiber production, natural
fiber processing, food processing, food quality maintenance, irrigation
pumping, crop drying; or
(ii) As a process fuel or feedstock in the production of fertilizer,
agricultural chemicals, animal feed, or food which the Secretary of
Agriculture determines is necessary for full food and fiber production.
(3) Essential agricultural user means any person who uses natural
gas for an essential agricultural use as defined in paragraph (b)(2) of
this section.
(4) Hospital means a facility whose primary function is delivering
medical care to patients who remain at the facility, including nursing
and convalescent homes. Outpatient clinics or doctors' offices are not
included in this definition.
(5) High-priority use means any use of natural gas by a high-
priority user as defined in paragraph (a)(6) of this section.
(6) High-priority user means, in no specific order, any person who
uses natural gas:
(i) In a residence, or
(ii) In a commercial establishment in amounts of less than 50 Mcf on
a peak day; or
(iii) In any school or hospital; or
(iv) For minimum plant protection when operations are shut down, for
police protection, for fire protection, in a sanitation facility, in a
correctional facility, or for emergency situations pursuant to 18 CFR
2.78(a)(4).
(7) Interstate pipeline means any person engaged in natural gas
transportation subject to the jurisdiction of the Federal Energy
Regulatory Commission under the Natural Gas Act.
(8) Residence means a dwelling using natural gas predominately for
residential purposes such as space heating, air conditioning, hot water
heating, cooking, clothes drying, and other residential uses, and
includes apartment buildings and other multi-unit residential buildings.
(9) School means a facility, the primary function of which is to
deliver instruction to regularly enrolled students in attendance at such
facility. Facilities used for both educational and non-educational
activities are not included under this definition unless the latter are
merely incidental to the delivery of instruction.
[[Page 67]]
Sec. 580.03 Curtailment priorities.
(a) Notwithstanding any provision of law other than section 401(b)
of the Natural Gas Policy Act of 1978, or any other rule, regulation, or
order of the Department of Energy, the Federal Energy Regulatory
Commission or their predecessor agencies, and to the maximum extent
practicable, no curtailment plan of an interstate pipeline may provide
for curtailment of deliveries of natural gas for any essential
agricultural use, unless:
(1) Such curtailment does not reduce the quantity of natural gas
delivered for such use below the use requirement certified by the
Secretary of Agriculture under section 401(c) of the Natural Gas Policy
Act of 1978 in order to meet the requirements of full food and fiber
production; or
(2) Such curtailment is necessary in order to meet the requirements
of high-priority users; or
(3) The Federal Energy Regulatory Commission, in consultation with
the Secretary of Agriculture, determines, by rule or order issued
pursuant to section 401(b) of the Natural Gas Policy Act of 1978, that
use of a fuel (other than natural gas) is economically practicable and
that the fuel is reasonably available as an alternative for such
essential agricultural use.
(b) Any essential agricultural user who also qualifies as a high-
priority user shall be a high-priority user for purposes of paragraph
(a) of this section.
(c) The specific relative order of priority for all uses and users
of natural gas, including high-priority and essential agricultural uses
and users, shall remain as reflected in effective curtailment plans of
interstate pipelines filed with the Federal Energy Regulatory Commission
to the extent that the relative order of priorities does not conflict
with paragraph (a) of this section.
(d) Nothing in this rule shall prohibit the injection of natural gas
into storage by interstate pipelines or deliveries to its customers for
their injection into storage unless it is demonstrated to the Federal
Energy Regulatory Commission that these injections or deliveries are not
reasonably necessary to meet the requirements of high-priority users or
essential agricultural uses.
Sec. 580.04 Administrative procedures. [Reserved]
PART 590_ADMINISTRATIVE PROCEDURES WITH RESPECT TO THE IMPORT AND
EXPORT OF NATURAL GAS--Table of Contents
Subpart A_General Provisions
Sec.
590.100 OMB Control Numbers.
590.101 Purpose and scope.
590.102 Definitions.
590.103 General requirements for filing documents with FE.
590.104 Address for filing documents.
590.105 Computation of time.
590.106 Dockets.
590.107 Service.
590.108 Off-the-record communications.
590.109 FE investigations.
Subpart B_Applications for Authorization To Import or Export Natural Gas
590.201 General.
590.202 Contents of applications.
590.203 Deficient applications.
590.204 Amendment or withdrawal of applications.
590.205 Notice of applications.
590.206 Notice of procedures.
590.207 Filing fees.
590.208 Small volume exports.
590.209 Exchanges by displacement.
Subpart C_Procedures
590.301 General
590.302 Motions and answers.
590.303 Interventions and answers.
590.304 Protests and answers.
590.305 Informal discovery.
590.306 Subpoenas.
590.307 Depositions.
590.308 Admissions of facts.
590.309 Settlements.
590.310 Opportunity for additional procedures.
590.311 Conferences.
590.312 Oral presentations.
590.313 Trial-type hearings.
590.314 Presiding officials.
590.315 Witnesses.
590.316 Shortened proceedings.
590.317 Complaints.
Subpart D_Opinions and Orders
590.401 Orders to show cause.
590.402 Conditional orders.
590.403 Emergency interim orders.
590.404 Final opinions and orders.
590.405 Transferability.
590.406 Compliance with orders.
[[Page 68]]
590.407 Reports of changes.
Subpart E_Applications for Rehearing
590.501 Filing.
590.502 Application is not a stay.
590.503 Opinion and order on rehearing.
590.504 Denial by operation of law.
590.505 Answers to applications for rehearing.
Authority: Secs. 301(b), 402(f), and 644, Pub. L. 95-91, 91 Stat.
578, 585, and 599 (42 U.S.C. 7151(b), 7172(f), and 7254), Sec. 3, Act of
June 21, 1938, c. 556, 52 Stat. 822 (15 U.S.C. 717b); E.O. 12009 (42 FR
46267, September 15, 1977); DOE Delegation Order Nos. 0204-111 and 0204-
127 (49 FR 6684, February 22, 1984; 54 FR 11437, March 20, 1989).
Source: 54 FR 53531, Dec. 29, 1989, unless otherwise noted.
Subpart A_General Provisions
Sec. 590.100 OMB Control Numbers.
The information collection requirements contained in this part have
been approved by the Office of Management and Budget under Control No.
1903-0081.
Sec. 590.101 Purpose and scope.
The purpose of this part is to establish the rules and procedures
required to be followed by persons to obtain authorizations from DOE to
import or export natural gas under the Natural Gas Act and by all other
persons interested in participating in a natural gas import or export
proceeding before the agency. This part establishes the procedural rules
necessary to implement the authorities vested in the Secretary of Energy
by sections 301(b) and 402(f) of the DOE Act, which have been delegated
to the Assistant Secretary.
Sec. 590.102 Definitions.
As used in this part:
(a) Assistant Secretary means the Assistant Secretary for Fossil
Energy or any employee of the DOE who has been delegated final
decisional authority.
(b) Contested proceeding means a proceeding:
(1) Where a protest or a motion to intervene, or a notice of
intervention, in opposition to an application or other requested action
has been filed, or
(2) Where a party otherwise notifies the Assistant Secretary and the
other parties to a proceeding in writing that it opposes an application
or other requested action.
(c) Decisional employee means the Assistant Secretary, presiding
officials at conferences, oral presentations or trial-type hearings, and
any other employee of the DOE, including consultants and contractors,
who are, or may reasonably be expected to be, involved in the decision-
making process, including advising the Assistant Secretary on the
resolution of issues involved in a proceeding. The term includes those
employees of the DOE assisting in the conduct of trial-type hearings by
performing functions on behalf of the Assistant Secretary or presiding
official.
(d) DOE means the Department of Energy, of which FE is a part.
(e) DOE Act means the Department of Energy Organization Act, Public
Law 95-91, 91 Stat. 565 (42 U.S.C. 7101 et seq.).
(f) FE means the Office of The Assistant Secretary for Fossil
Energy.
(g) FERC means the Federal Energy Regulatory Commission.
(h) Interested person means a person, other than a decisional
employee, whose interest in a proceeding goes beyond the general
interest of the public as a whole and includes applicants, intervenors,
competitors of applicants, and other individuals and organizations,
including non-profit and public interest organizations, and state,
local, and other public officials, with a proprietary, financial or
other special interest in the outcome of a proceeding. The term does not
include other federal agencies or foreign governments and their
representatives, unless the agency, foreign government, or
representative of a foreign government is a party to the proceeding.
(i) Natural gas means natural gas and mixtures of natural gas and
synthetic natural gas, regardless of physical form or phase, including
liquefied natural gas and gels primarily composed of natural gas.
(j) NGA means the Natural Gas Act of June 21, 1938, c. 556, 52 Stat.
821 (15 U.S.C. 717 et seq.).
(k) Off-the-record communication means a written or oral
communication not on the record which is relevant to the merits of a
proceeding, and about which the parties have not been given reasonable
prior notice of
[[Page 69]]
the nature and purpose of the communication and an opportunity to be
present during such communication or, in the case of a written
communication, an opportunity to respond to the communication. It does
not include communications concerned solely with procedures which are
not relevant to the merits of a proceeding. It also does not include
general background discussions about an entire industry or natural gas
markets or communications of a general nature made in the course of
developing agency policy for future general application, even though
these discussions may relate to the merits of a particular proceeding.
(l) Party means an applicant, any person who has filed a motion for
and been granted intervenor status or whose motion to intervene is
pending, and any state commission which has intervened by notice
pursuant to Sec. 590.303(a).
(m) Person means any individual, firm, estate, trust, partnership,
association, company, joint-venture, corporation, United States local,
state and federal governmental unit or instrumentality thereof,
charitable, educational or other institution, and others, including any
officer, director, owner, employee, or duly authorized representative of
any of the foregoing.
(n) Presiding official means any employee of the DOE who has been
designated by the Assistant Secretary to conduct any stage of a
proceeding, which may include presiding at a conference, oral
presentation, or trial-type hearing, and who has been delegated the
authority of the Assistant Secretary to make rulings and issue orders in
the conduct of such proceeding, other than final opinions and orders,
orders to show cause, emergency interim orders, or conditional decisions
under subpart D and orders on rehearing under subpart E.
(o) Proceeding means the process and activity, and any part thereof,
instituted by FE either in response to an application, petition, motion
or other filing under this part, or on its own initiative, by which FE
develops and considers the relevant facts, policy and applicable law
concerning the importation or exportation of natural gas and which may
lead to the issuance of an order by the Assistant Secretary under
subparts D and E.
(p) Small-scale natural gas export means an export of natural gas to
nations with which there is not in effect a free trade agreement with
the United States requiring national treatment for trade in natural gas
and with which trade is not prohibited by U.S. law or policy, provided
that the application for such export authority satisfies the following
two criteria:
(1) The application proposes to export natural gas in a volume up to
and including 51.75 billion cubic feet per year, and
(2) DOE's approval of the application does not require an
environmental impact statement or an environmental assessment under the
National Environmental Policy Act, 42 U.S.C. 4321 et seq.
(q) State commission means the regulatory body of a state or
municipality having jurisdiction to regulate rates and charges for the
sale of natural gas to consumers within the state or municipality, or
having any regulatory jurisdiction over parties involved in the import
or export arrangement.
[54 FR 53531, Dec. 29, 1989, as amended at 83 FR 35119, July 25, 2018]
Sec. 590.103 General requirements for filing documents with FE.
(a) Any document, including but not limited to an application,
amendment of an application, request, petition, motion, answer, comment,
protest, complaint, and any exhibit submitted in connection with such
documents, shall be filed with FE under this part. Such document shall
be considered officially filed with FE when it has been received and
stamped with the time and date of receipt by the Office of Fuels
Programs, FE. Documents transmitted to FE must be addressed as provided
in Sec. 590.104. All documents and exhibits become part of the record
in the official FE docket file and will not be returned. An original and
fifteen (15) copies of all applications, filings and submittals shall be
provided to FE. No specific format is required. Applicants required to
file quarterly reports as a condition to an authorization need only file
an original and four (4) copies.
[[Page 70]]
(b) Upon receipt by FE, each application or other initial request
for action shall be assigned a docket number. Any petition, motion,
answer, request, comment, protest, complaint or other document filed
subsequently in a docketed proceeding with FE shall refer to the
assigned docket number. All documents shall be signed either by the
person upon whose behalf the document is filed or by an authorized
representative. Documents signed by an authorized representative shall
contain a certified statement that the representative is a duly
authorized representative unless the representative has a certified
statement already on file in the FE docket of the proceeding. All
documents shall also be verified under oath or affirmation by the person
filing, or by an officer or authorized representative of the firm having
knowledge of the facts alleged. Each document filed with FE shall
contain a certification that a copy has been served as required by Sec.
590.107 and indicate the date of service. Service of each document must
be made not later than the date of the filing of the document.
(c) A person who files an application shall state whether, to the
best knowledge of that person, the same or a related matter is being
considered by any other part of the DOE, including the FERC, or any
other Federal agency or department and, if so, shall identify the matter
and the agency or department.
Sec. 590.104 Address for filing documents.
All documents filed under this part shall be addressed to: Office of
Fuels Programs, Fossil Energy, U.S. Department of Energy, Docket Room
3F-056, FE-50, Forrestal Building, 1000 Independence Avenue SW.,
Washington, DC 20585. All hand delivered documents shall be filed with
the Office of Fuels Programs at the above address between the hours of 8
a.m. and 4:30 p.m., Monday through Friday, except Federal holidays.
Sec. 590.105 Computation of time.
(a) In computing any period of time prescribed or allowed by these
regulations, the day of the act or event from which the designated
period of time begins to run is not included. The period of time begins
to run the next day after the day of the act or event. The last day of
the period so computed is included unless it is a Saturday, Sunday, or
legal Federal holiday, in which event the period runs until the end of
the next day that is neither a Saturday, Sunday, nor a legal Federal
holiday, unless otherwise provided by this part or by the terms of an FE
order. Documents received after the regular business hours of 8 a.m. to
4:30 p.m. are deemed filed on the next regular business day.
(b) When a document is required to be filed with FE within a
prescribed time, an extension of time to file may be granted for good
cause shown.
(c) An order is issued and effective when date stamped by the Office
of Fuels Programs, FE, after the order has been signed unless another
effective date is specified in the order.
Sec. 590.106 Dockets.
The FE shall maintain a docket file of each proceeding under this
part, which shall contain the official record upon which all orders
provided for in subparts D and E shall be based. The official record in
a particular proceeding shall include the official service list, all
documents filed under Sec. 590.103, the official transcripts of any
procedures held under subpart C, and opinions and orders issued by FE
under subparts D and E, and reports of contract amendments under Sec.
590.407. All dockets shall be available for inspection and copying by
the public during regular business hours between 8 a.m. and 4:30 p.m.
Dockets are located in the Office of Fuels Programs, FE, Docket Room 3F-
056, Forrestal Building, 1000 Independence Avenue SW., Washington, DC
20585.
Sec. 590.107 Service.
(a) An applicant, any other party to a proceeding, or a person
filing a protest shall serve a copy of all documents filed with FE upon
all parties unless otherwise provided in this part. The copy of a
document served upon parties shall be a true copy of the document filed
with FE, but does not have to be a copy stamped with the time and date
of receipt by FE. The FE shall maintain an official service list for
each
[[Page 71]]
proceeding which shall be provided upon request.
(b) When the parties are not known, such as during the initial
comment period following publication of the notice of application,
service requirements under paragraph (a) of this section may be met by
serving a copy of all documents on the applicant and on FE for inclusion
in the FE docket in the proceeding.
(c) All documents required to be served under this part may be
served by hand, certified mail, registered mail, or regular mail. It
shall be the responsibility of the serving party to ensure that service
is effected in a timely manner. Service is deemed complete upon delivery
or upon mailing, whichever occurs first.
(d) Service upon a person's duly authorized representatives on the
official service list shall constitute service upon that person.
(e) All FE orders, notices, or other FE documents shall be served on
the parties by FE either by hand, registered mail, certified mail, or
regular mail, except as otherwise provided in this part.
Sec. 590.108 Off-the-record communications.
(a) In any contested proceeding under this part:
(1) No interested person shall make an off-the-record communication
or knowingly cause an off-the-record communication to be made to any
decisional employee.
(2) No decisional employee shall make an off-the-record
communication or knowingly cause an off-the-record communication to be
made to any interested person.
(3) A decisional employee who receives, makes, or knowingly causes
to be made an oral off-the-record communication prohibited by this
section shall prepare a memorandum stating the substance of the
communication and any responses made to it.
(4) Within forty-eight (48) hours of the off-the-record
communication, a copy of all written off-the-record communications or
memoranda prepared in compliance with paragraph (a)(3) of this section
shall be delivered by the decisional employee to the Assistant Secretary
and to the Deputy Assistant Secretary for Fuels Programs. The materials
will then be made available for public inspection by placing them in the
docket associated with the proceeding.
(5) Requests by a party for an opportunity to rebut, on the record,
any facts or contentions in an off-the-record communication may be filed
in writing with the Assistant Secretary. The Assistant Secretary shall
grant such requests only for good cause.
(6) Upon being notified of an off-the-record communication made by a
party in violation of this section, the Assistant Secretary may, to the
extent consistent with the interests of justice and the policies of the
NGA and the DOE Act, require the party to show cause why the party's
claim or interest in the proceeding should not be dismissed, denied,
disregarded, or otherwise adversely affected on account of the
violation.
(b) The prohibitions of paragraph (a) of the section shall apply
only to contested proceedings and begin at the time either a protest or
a motion to intervene or notice of intervention in opposition to the
application or other requested action is filed with FE, or a party
otherwise specifically notifies the Assistant Secretary and the other
parties in writing of its opposition to the application or other
requested action, whichever occurs first.
Sec. 590.109 FE investigations.
The Assistant Secretary or the Assistant Secretary's delegate may
investigate any facts, conditions, practices, or other matters within
the scope of this part in order to determine whether any person has
violated or is about to violate any provision of the NGA or other
statute or any rule, regulation, or order within the Assistant
Secretary's jurisdiction. In conducting such investigations, the
Assistant Secretary or the Assistant Secretary's delegate may, among
other things, subpoena witnesses to testify, subpoena or otherwise
require the submission of documents, and order testimony to be taken by
deposition.
[[Page 72]]
Subpart B_Applications for Authorization To Import or Export Natural Gas
Sec. 590.201 General.
(a) Any person seeking authorization to import or export natural gas
into or from the United States, to amend an existing import or export
authorization, or seeking any other requested action, shall file an
application with the FE under the provisions of this part.
(b) Applications shall be filed at least ninety (90) days in advance
of the proposed import or export or other requested action, unless a
later date is permitted for good cause shown.
[54 FR 53531, Dec. 29, 1989; 55 FR 14916, Apr. 19, 1990]
Sec. 590.202 Contents of applications.
(a) Each application filed under Sec. 590.201 shall contain the
exact legal name of the applicant, the names, titles, and mailing
addresses of a maximum of two persons for the official service list, a
statement describing the action sought from FE, the justification for
such action, including why the proposed action is not inconsistent with
the public interest, and the FE docket number, if applicable.
(b) Each application shall include the matters listed below to the
extent applicable. All factual matters shall be supported to the extent
practicable by the necessary data or documents. Copies of relevant
documents filed or intended to be filed with FERC may be submitted to
satisfy the requirements of this section. Topics to be addressed or
described shall include:
(1) The scope of the project, including the volumes of natural gas
involved, expressed in either Mcf or Bcf and their Btu equivalents, the
dates of commencement and completion of the proposed import or export,
and the facilities to be utilized or constructed;
(2) The source and security of the natural gas supply to be imported
or exported, including contract volumes and a description of the gas
reserves supporting the project during the term of the requested
authorization;
(3) Identification of all the participants in the transaction,
including the parent company, if any, and identification of any
corporate or other affiliations among the participants;
(4) The terms of the transaction, such as take-or-pay obligations,
make-up provisions, and other terms that affect the marketability of the
gas;
(5) The provisions of the import arrangement which establish the
base price, volume requirements, transportation and other costs, and
allow adjustments during the life of the project, and a demonstration as
to why the import arrangement is and will remain competitive over the
life of the project and is otherwise not inconsistent with the public
interest;
(6) For proposed imports, the need for the natural gas by the
applicant or applicant's prospective customers, including a description
of the persons who are expected to purchase the natural gas; and for
proposed exports, the lack of a national or regional need for the gas;
and
(7) The potential environmental impact of the project. To the extent
possible, the application shall include a listing and description of any
environmental assessments or studies being performed on the proposed gas
project. The application shall be updated as the status of any
environmental assessments changes.
(c) The application shall also have attached a statement, including
a signed opinion of legal counsel, showing that a proposed import or
export of natural gas is within the corporate powers of the applicant
and a copy of all relevant contracts and purchase agreements.
(d) The Assistant Secretary or the Assistant Secretary's delegate
may at any time require the applicant and other parties to make
supplemental filings of additional information necessary to resolve
issues raised by the application.
(e) All information and data filed in support of or against an
application will be placed in the official FE docket file of the
proceeding and will not be afforded confidential treatment, unless the
party shows why the information or data should be exempted from public
disclosure and the Assistant Secretary or Assistant Secretary's delegate
determines that such information or data
[[Page 73]]
shall be afforded confidential treatment. Such determination shall be
made in accordance with 10 CFR 1004.11.
[54 FR 53531, Dec. 29, 1989; 55 FR 18227, May 1, 1990]
Sec. 590.203 Deficient applications.
If an application is incomplete or otherwise deemed deficient, the
Assistant Secretary or the Assistant Secretary's delegate may require
the applicant to submit additional information or exhibits to remedy the
deficiency. If the applicant does not remedy the deficiency within the
time specified by the Assistant Secretary or the Assistant Secretary's
delegate, the application may be dismissed without prejudice to refiling
at another time.
Sec. 590.204 Amendment or withdrawal of applications.
(a) The applicant may amend or supplement the application at any
time prior to issuance of the Assistant Secretary's final opinion and
order resolving the application, and shall amend or supplement the
application whenever there are changes in material facts or conditions
upon which the proposal is based.
(b) The Assistant Secretary may for good cause shown by motion of a
party or upon the Assistant Secretary's own initiative decline to act
on, in whole or in part, an amendment or supplement requested by an
applicant under paragraph (a) of this section.
(c) After written notice to FE and service upon the parties of that
notice an applicant may withdraw an application. Such withdrawal shall
be effective thirty (30) days after notice to FE if the Assistant
Secretary does not issue an order to the contrary within that time
period.
Sec. 590.205 Notice of applications.
(a) Upon receipt of an application, the FE shall publish a notice of
application in the Federal Register. The notice shall summarize the
proposal. Except in emergency circumstances, generally the notice shall
provide a time limit of not less than thirty (30) days from the notice's
date of publication in the Federal Register for persons to file
protests, comments, or a motion to intervene or notice of intervention,
as applicable. The notice may also request comments on specific issues
or matters of fact, law, or policy raised by the application.
(b) The notice of application shall advise the parties of their
right to request additional procedures, including the opportunity to
file written comments and to request that a conference, oral
presentation, or trial-type hearing be convened. Failure to request
additional procedures at this time shall be deemed a waiver of any right
to additional procedures should the Assistant Secretary decide to grant
the application and authorize the import or export by issuing a final
opinion and order in accordance with Sec. 590.316.
(c) Where negotiations between the DOE, including FE, and a foreign
government have resulted in a formal policy agreement or statement
affecting a particular import or export proceeding, FE shall include in
the notice of application a description of the terms or policy positions
of that agreement or statement to the extent they apply to the
proceeding, and invite comment. A formal policy agreement or statement
affecting a particular import or export proceeding that is arrived at
after publication of the notice of application shall be placed on the
record in that proceeding and the parties given an opportunity to
comment thereon.
Sec. 590.206 Notice of procedures.
In all proceedings where, following a notice of application and the
time specified in the notice for the filing of responses thereto, the
Assistant Secretary determines to have additional procedures, which may
consist of the filing of supplemental written comments, written
interrogatories or other discovery procedures, a conference, oral
presentation, or trial-type hearing, the Assistant Secretary shall
provide the parties with notice of the procedures the Assistant
Secretary has determined to follow in the proceeding and advise the
parties of their right to request any additional procedures in
accordance with the provisions of Sec. 590.310. The notice of
procedures may
[[Page 74]]
identify and request comments on specific issues of fact, law, or policy
relevant to the proceeding and may establish a time limit for requesting
additional procedures.
Sec. 590.207 Filing fees.
A non-refundable filing fee of fifty dollars ($50) shall accompany
each application filed under Sec. 590.201. Checks shall be made payable
to ``Treasury of the United States.''
Sec. 590.208 Small volume exports.
(a) Small-scale natural gas exports. Small-scale natural gas exports
are deemed to be consistent with the public interest under section 3(a)
of the Natural Gas Act, 15 U.S.C. 717b(a). DOE will issue an export
authorization upon receipt of any complete application to conduct small-
scale natural gas exports. DOE's regulations regarding notice of
applications, 10 CFR 590.205, and procedures applicable to application
proceedings, 10 CFR part 590, subpart C (10 CFR 590.303 to 10 CFR
590.317), are not applicable to small-scale natural gas exports.
(b) Scientific, experimental, or other non-utility natural gas
exports. Any person may export up to 100,000 cubic feet of natural gas
(14.73 pounds per square inch at 60 degrees Fahrenheit) or the liquefied
or compressed equivalent thereof, in a single shipment for scientific,
experimental, or other non-utility gas use without prior authorization
of the Assistant Secretary.
[83 FR 35119, July 25, 2018]
Sec. 590.209 Exchanges by displacement.
Any importer of natural gas may enter into an exchange by
displacement agreement without the prior authorization of the Assistant
Secretary when the net effect of the exchange is no different than under
the importer's existing authorization. An exchange by displacement is an
arrangement whereby authorized imported volumes are displaced by other
gas for purposes of storage or flexibility. The term of the exchange
agreement may not exceed five (5) years, the volumes imported may not
exceed the importer's existing import authorization, and no actual
natural gas may flow across the United States border under the terms of
the exchange agreement. Any importer who enters into an exchange
agreement pursuant to this section shall file with FE within fifteen
(15) days after the start up of the exchange, a written description of
the transaction, the exact volume of natural gas to be displaced, the
name of the purchaser, and the import authorization under which the
exchange is being carried out.
Subpart C_Procedures
Sec. 590.301 General.
The procedures of this subpart are applicable to proceedings
conducted on all applications or other requested actions filed under
this part. The Assistant Secretary may conduct all aspects of the
procedures of this subpart or may designate a presiding official
pursuant to Sec. 590.314.
Sec. 590.302 Motions and answers.
(a) Motions for any procedural or interlocutory ruling shall set
forth the ruling or relief requested and state the grounds and the
statutory or other authority relied upon. All written motions shall
comply with the filing requirements of Sec. 590.103. Motions made
during conferences, oral presentations or trial-type hearings may be
stated orally upon the record, unless the Assistant Secretary or the
presiding official determines otherwise.
(b) Any party may file an answer to any written motion within
fifteen (15) days after the motion is filed, unless another period of
time is established by the Assistant Secretary or the presiding
official. Answers shall be in writing and shall detail each material
allegation of the motion being answered. Answers shall state clearly and
concisely the facts and legal authorities relied upon.
(c) Any motion, except for motions seeking intervention or
requesting that a conference, oral presentation or trial-type hearing be
held, shall be deemed to have been denied, unless the Assistant
Secretary or presiding official acts within thirty (30) days after the
motion is filed.
[[Page 75]]
Sec. 590.303 Interventions and answers.
(a) A state commission may intervene in a proceeding under this part
as a matter of right and become a party to the proceeding by filing a
notice of intervention no later than the date fixed for filing motions
to intervene in the applicable FE notice or order. If the period for
filing the notice has expired, a state commission may be permitted to
intervene by complying with the filing and other requirements applicable
to any other person seeking to become a party to the proceeding as
provided in this section.
(b) Any other person who seeks to become a party to a proceeding
shall file a motion to intervene, which sets out clearly and concisely
the facts upon which the petitioner's claim of interest is based.
(c) A motion to intervene shall state, to the extent known, the
position taken by the movant and the factual and legal basis for such
positions in order to advise the parties and the Assistant Secretary as
to the specific issues of policy, fact, or law to be raised or
controverted.
(d) Motions to intervene may be filed at any time following the
filing of an application, but no later than the date fixed for filing
such motions or notices in the applicable FE notice or order, unless a
later date is permitted by the Assistant Secretary for good cause shown
and after considering the impact of granting the late motion of the
proceeding. Each motion or notice shall list the names, titles, and
mailing addresses of a maximum of two persons for the official service
list.
(e) Any party may file an answer to a motion to intervene, but such
answer shall be made within fifteen (15) days after the motion to
intervene was filed, unless a later date is permitted by the Assistant
Secretary for good cause shown. Answers shall be in writing. Answers
shall detail each material allegation of the motion to intervene being
answered and state clearly and concisely the facts and legal authorities
relied upon. Failure to answer is deemed a waiver of any objection to
the intervention. This paragraph does not prevent the Assistant
Secretary from ruling on a motion to intervene and issuing a final
opinion and order in accordance with Sec. 590.316 prior to the
expiration of the fifteen (15) days in which a party has to answer a
motion to intervene.
(f) If an answer in opposition to a motion to intervene is timely
filed or if the motion to intervene is not timely filed, then the movant
becomes a party only after the motion to intervene is expressly granted.
(g) If no answer in opposition to a motion to intervene is filed
within the period of time prescribed in paragraph (e) of this section,
the motion to intervene shall be deemed to be granted, unless the
Assistant Secretary denies the motion in whole or in part or otherwise
limits the intervention prior to the expiration of the time allowed in
paragraph (e) for filing an answer to the motion to intervene. Where the
motion to intervene is deemed granted, the participation of the
intervenor shall be limited to matters affecting asserted rights and
interests specifically set forth in the motion to intervene, and the
admission of such intervenor to party status shall not be construed as
recognition by FE that the intervenor might be aggrieved because of any
order issued.
(h) In the event that a motion for late intervention is granted, an
intervenor shall accept the record of the proceeding as it was developed
prior to the intervention.
Sec. 590.304 Protests and answers.
(a) Any person objecting to an application filed under Sec. 590.201
of this part or to any action taken by FE under this part may file a
protest. No particular form is required. The protest shall identify the
person filing the protest, the application or action being objected to,
and provide a concise statement of the reasons for the protest.
(b) The filing of a protest, without also filing a motion to
intervene or a notice of intervention, shall not make the person filing
the protest a party to the proceeding.
(c) A protest shall be made part of the official FE docket file in
the proceeding and shall be considered as a statement of position of the
person filing the protest, but not as establishing
[[Page 76]]
the validity of any assertion upon which the decision would be based.
(d) Protests shall be served on the applicant and all parties by the
person filing the protest. If the person filing the protest is unable to
provide service on any person identified as a party to the proceeding
after a good faith effort, then FE shall effect service. However, when
the parties are not known, service requirements may be met by serving a
copy on the applicant and on FE as provided in Sec. 590.107(b).
(e) Protests may be filed at any time following the filing of an
application, but no later than the date fixed for filing protests in the
applicable FE notice or order, unless a later date is permitted by the
Assistant Secretary for good cause shown.
(f) Any party may file an answer to a protest but such answer must
be filed within fifteen (15) days after the protest was filed, unless a
later date is permitted by the Assistant Secretary for good cause shown.
[54 FR 53531, Dec. 29, 1989; 55 FR 14916, Apr. 19, 1990]
Sec. 590.305 Informal discovery.
The parties to a proceeding may conduct discovery through use of
procedures such as written interrogatories or production of documents.
In response to a motion by a party, the Assistant Secretary or presiding
official may determine the procedures to be utilized for discovery if
the parties cannot agree on such procedures.
Sec. 590.306 Subpoenas.
(a) Subpoenas for the attendance of witnesses at a trial-type
hearing or for the production of documentary evidence may be issued upon
the initiative of the Assistant Secretary or presiding official, or upon
written motion of a party or oral motion of a party during a conference,
oral presentation, or trial-type hearing, if the Assistant Secretary or
presiding official determines that the evidence sought is relevant and
material.
(b) Motions for the issuance of a subpoena shall specify the
relevance, materiality, and scope of the testimony or documentary
evidence sought, including, as to documentary evidence, specification to
the extent possible of the documents sought and the facts to be proven
by them, the issues to which they relate, and why the information or
evidence was not obtainable through discovery procedures agreed upon by
the parties.
(c) If service of a subpoena is made by a United States Marshal or a
Deputy United States Marshal, service shall be evidenced by their
return. If made by another person, that person shall affirm that service
has occurred and file an affidavit to that effect with the original
subpoena. A witness who is subpoenaed shall be entitled to witness fees
as provided in Sec. 590.315(c).
Sec. 590.307 Depositions.
(a) Upon motion filed by a party, the Assistant Secretary or
presiding official may authorize the taking of testimony of any witness
by deposition. Unless otherwise directed in the authorization issued, a
witness being deposed may be examined regarding any matter which is
relevant to the issues involved in the pending proceeding.
(b) Parties authorized to take a deposition shall provide written
notice to the witness and all other parties at least ten (10) days in
advance of the deposition unless such advance notice is waived by mutual
agreement of the parties.
(c) The requesting motion and notice shall state the name and
mailing address of the witness, delineate the subject matters on which
the witness is expected to testify, state the reason why the deposition
should be taken, indicate the time and place of the deposition, and
provide the name and mailing address of the person taking the
deposition.
(d) A witness whose testimony is taken by deposition shall be sworn
in or shall affirm concerning the matter about which the witness has
been called to testify before any questions are asked or testimony
given. A witness deposed shall be entitled to witness fees as provided
in Sec. 590.315(c).
(e) The moving party shall file the entire deposition with FE after
it has been subscribed and certified. No portion of the deposition shall
constitute a part of the record in the proceedings unless received in
evidence, in whole or
[[Page 77]]
in part, by the Assistant Secretary or presiding official.
Sec. 590.308 Admissions of facts.
(a) At any time prior to the end of a trial-type hearing, or, if
there is no trial-type hearing, prior to the issuance of a final opinion
and order under Sec. 590.404, any party, the Assistant Secretary, or
the presiding official may serve on any party a written request for
admission of the truth of any matters at issue in the proceeding that
relate to statements or opinions of fact or of the application of law to
fact.
(b) A matter shall be considered admitted and conclusively
established for the purposes of any proceeding in which a request for
admission is served unless, within fifteen (15) days of such time limit
established by the Assistant Secretary or presiding official, the party
to whom the request is directed answers or objects to the request. Any
answer shall specifically admit or deny the matter, or set forth in
detail the reasons why the answering party cannot truthfully admit or
deny the matter. An answering party may not give lack of information or
knowledge as a reason for failure to admit or deny, unless the answering
party states that, after reasonable inquiry, the answering party has
been unable to obtain sufficient information to admit or deny. If an
objection is made, the answering party shall state the reasons for the
objection.
(c) If the Assistant Secretary or presiding official determines that
an answer to a request for admission does not comply with the
requirements of this section, the Assistant Secretary or presiding
official may order either that the matter is admitted or that an amended
answer be served.
(d) A copy of all requests for admission and answers thereto shall
be filed with FE in accordance with Sec. 590.103. Copies of any
documents referenced in the request shall be served with the request
unless they are known to be in the possession of the other parties.
(e) The Assistant Secretary or presiding official may limit the
number of requests for admission of facts in order to expedite a
proceeding through elimination of duplicative requests.
Sec. 590.309 Settlements.
The parties may conduct settlement negotiations. If settlement
negotiations are conducted during a conference, at the request of one of
the parties, the Assistant Secretary or presiding official may order
that the discussions be off-the-record with no transcript of such
settlement negotiations being prepared for inclusion in the official
record of the proceeding. No offer of settlement, comment or discussion
by the parties with respect to an offer of settlement shall be subject
to discovery or admissible into evidence against any parties who object
to its admission.
Sec. 590.310 Opportunity for additional procedures.
Any party may file a motion requesting additional procedures,
including the opportunity to file written comments, request written
interrogatories or other discovery procedures, or request that a
conference, oral presentation or trial-type hearing be held. The motion
shall describe what type of procedure is requested and include the
information required by Sec. Sec. 590.311, 590.312 and 590.313, as
appropriate. Failure to request additional procedures within the time
specified in the notice of application or in the notice of procedure, if
applicable, shall constitute a waiver of that right unless the Assistant
Secretary for good cause shown grants additional time for requesting
additional procedures. If no time limit is specified in the notice or
order, additional procedures may be requested at any time prior to the
issuance of a final opinion and order. At any time during a proceeding,
the Assistant Secretary or presiding official may on his or her own
initiative determine to provide additional procedures.
[54 FR 53531, Dec. 29, 1989; 55 FR 14916, Apr. 19, 1990]
Sec. 590.311 Conferences.
(a) Upon motion by a party, a conference of the parties may be
convened to adjust or settle the proceedings, set schedules, delineate
issues, stipulate certain issues of fact or law, set procedures, and
consider other relevant matters where it appears that a conference
[[Page 78]]
will materially advance the proceeding. The Assistant Secretary or
presiding official may delineate the issues which are to be considered
and may place appropriate limitations on the number of intervenors who
may participate, if two or more intervenors have substantially like
interests.
(b) A motion by a party for a conference shall include a specific
showing why a conference will materially advance the proceeding.
(c) Conferences shall be recorded, unless otherwise ordered by the
Assistant Secretary or presiding official, and the transcript shall be
made a part of the official record of the proceeding and available to
the public.
Sec. 590.312 Oral presentations.
(a) Any party may file a motion requesting an opportunity to make an
oral presentation of views, arguments, including arguments of counsel,
and data on any aspect of the proceeding. The motion shall identify the
substantial question of fact, law or policy at issue and demonstrate
that it is material and relevant to the merits of the proceeding. The
party may submit material supporting the existence of substantial
issues. The Assistant Secretary or presiding official ordinarily will
grant a party's motion for an oral presentation, if the Assistant
Secretary or presiding official determines that a substantial question
of fact, law, or policy is at issue in the proceeding and illumination
of that question will be aided materially by such an oral presentation.
(b) The Assistant Secretary or presiding official may require
parties making oral presentations to file briefs or other documents
prior to the oral presentation. The Assistant Secretary or presiding
official also may delineate the issues that are to be considered at the
oral presentation and place appropriate limitations on the number of
intervenors who may participate if two or more intervenors have
substantially like interests.
(c) Oral presentations shall be conducted in an informal manner with
the Assistant Secretary or the presiding official and other decisional
employees presiding as a panel. The panel may question those parties
making an oral presentation. Cross-examination by the parties and other
more formal procedures used in trial-type hearings will not be available
in oral presentations. The oral presentation may be, but need not be,
made by legal counsel.
(d) Oral presentations shall be recorded, and the transcript shall
be made part of the official record of the proceeding and available to
the public.
Sec. 590.313 Trial-type hearings.
(a) Any party may file a motion for a trial-type hearing for the
purpose of taking evidence on relevant and material issues of fact
genuinely in dispute in the proceeding. The motion shall identify the
factual issues in dispute and the evidence that will be presented. The
party must demonstrate that the issues are genuinely in dispute,
relevant and material to the decision and that a trial-type hearing is
necessary for a full and true disclosure of the facts. The Assistant
Secretary or presiding official shall grant a party's motion for a
trial-type hearing, if the Assistant Secretary or presiding official
determines that there is a relevant and material factual issue genuinely
in dispute and that a trial-type hearing is necessary for a full and
true disclosure of the facts.
(b) In trial-type hearings, the parties shall have the right to be
represented by counsel, to request discovery, to present the direct and
rebuttal testimony of witnesses, to cross-examine witnesses under oath,
and to present documentary evidence.
(c) The Assistant Secretary or presiding official upon his or her
own initiative or upon the motion of any party may consolidate any
proceedings involving common questions of fact in whole or in part for a
trial-type hearing. The Assistant Secretary or presiding official may
also place appropriate limitations on the number of intervenors who may
participate if two or more intervenors have substantially like
interests.
(d) The Assistant Secretary or presiding official may make such
rulings for trial-type hearings, including delineation of the issues and
limitation of cross-examination of a witness, as are
[[Page 79]]
necessary to obtain a full and true disclosure of the facts and to limit
irrelevant, immaterial, or unduly repetitious evidence.
(e) At trial-type hearings, the Assistant Secretary or presiding
official, or any other decisional employee directed by the Assistant
Secretary or presiding official, may call witnesses for testimony or
presenting exhibits that directly relate to a particular issue of fact
to be considered at the hearing. The Assistant Secretary or presiding
official, or any other decisional employee directed by the Assistant
Secretary or presiding official, may also question witnesses offered by
the parties concerning their testimony.
(f) Trial-type hearings shall be recorded, and the transcript shall
be made part of the official record of the proceeding and available to
the public.
Sec. 590.314 Presiding officials.
(a) The Assistant Secretary may designate a presiding official to
conduct any stage of the proceeding, including officiating at a
conference, oral presentation, or trial-type hearing. The presiding
official shall have the full authority of the Assistant Secretary during
such proceedings.
(b) A presiding official at a conference, oral presentation, or
trial-type hearing shall have the authority to regulate the conduct of
the proceeding including, but not limited to, determination of the
issues to be raised during the course of the conference, oral
presentation, or trial-type hearing, administering oaths or
affirmations, directing discovery, ruling on objections to the
presentation of testimony or exhibits, receiving relevant and material
evidence, requiring the advance submission of written testimony and
exhibits, ruling on motions, determining the format, directing that
briefs be filed with respect to issues raised or to be raised during the
course of the conference, oral presentation or trial-type hearing,
questioning witnesses, taking reasonable measures to exclude duplicative
material, and placing limitations on the number of witnesses to be
called by a party.
Sec. 590.315 Witnesses.
(a) The Assistant Secretary or presiding official may require that
the direct testimony of witnesses in trial-type hearings be submitted in
advance of the hearing and be under oath, and in written form.
(b) Witnesses who testify in trial-type hearings shall be under oath
or affirmation before being allowed to testify.
(c) Witnesses subpoenaed pursuant to Sec. 590.306 shall be paid the
same fees and mileage as paid for like services in the District Courts
of the United States.
(d) Witnesses subpoenaed pursuant to Sec. 590.307 shall be paid the
same fees and mileage as paid for like services in the District Court of
the United States.
[54 FR 53531, Dec. 29, 1989; 55 FR 14916, Apr. 19, 1990]
Sec. 590.316 Shortened proceedings.
In any proceeding where, in response to a notice of application or
notice of procedures, if applicable, no party files a motion requesting
additional procedures, including the right to file written comments, or
the holding of a conference, oral presentation, or trial-type hearing,
or where the Assistant Secretary determines that such requested
additional procedures are not required pursuant to Sec. Sec. 590.310,
590.311, 590.312 and 590.313, the Assistant Secretary may issue a final
opinion and order on the basis of the official record, including the
application and all other filings. In any proceeding in which the
Assistant Secretary intends to deny the application or grant the
application with the attachment of material conditions unknown to, or
likely to be opposed by, the applicant, solely on the basis of the
application and responses to the notice of application or notice of
procedures, if applicable, without additional procedures, the Assistant
Secretary shall advise the parties in writing generally of the issues of
concern to the Assistant Secretary upon which the denial or material
conditions would be based and provide them with an opportunity to
request additional procedures pursuant to Sec. Sec. 590.310, 590.311,
590.312 and 590.313.
[[Page 80]]
Sec. 590.317 Complaints.
(a) Any person may file a complaint objecting to the actions by any
other person under any statute, rule, order or authorization applicable
to an existing import or export authorization over which FE has
jurisdiction. No particular form is required. The complaint must be
filed with FE in writing and must contain the name and address of the
complainant and the respondent and state the facts forming the basis of
the complaint.
(b) A complaint concerning an existing import or export
authorization shall be served on all parties to the original import or
export authorization proceeding either by the complainant or by FE if
the complainant has made a good faith effort but has been unable to
effect service.
(c) The Assistant Secretary may issue an order to show cause under
Sec. 590.401, or may provide opportunity for additional procedures
pursuant to Sec. Sec. 590.310, 590.311, 590.312, or Sec. 590.313, in
order to determine what action should be taken in response to the
complaint.
Subpart D_Opinions and Orders
Sec. 590.401 Orders to show cause.
A proceeding under this part may commence upon the initiative of the
Assistant Secretary or in response to an application by any person
requesting FE action against any other person alleged to be in
contravention or violation of any authorization, statute, rule, order,
or law administered by FE applicable to the import or export of natural
gas, or for any other alleged wrong involving importation or exportation
of natural gas over which FE has jurisdiction. Any show cause order
issued shall identify the matters of interest or the matters complained
of that the Assistant Secretary is inquiring about, and shall be deemed
to be tentative and for the purpose of framing issues for consideration
and decision. The respondent named in the order shall respond orally or
in writing, or both, as required by the order. A show cause order is not
a final opinion and order.
Sec. 590.402 Conditional orders.
The Assistant Secretary may issue a conditional order at any time
during a proceeding prior to issuance of a final opinion and order. The
conditional order shall include the basis for not issuing a final
opinion and order at that time and a statement of findings and
conclusions. The findings and conclusions shall be based solely on the
official record of the proceeding.
Sec. 590.403 Emergency interim orders.
Where consistent with the public interest, the Assistant Secretary
may waive further procedures and issue an emergency interim order
authorizing the import or export of natural gas. After issuance of the
emergency interim order, the proceeding shall be continued until the
record is complete, at which time a final opinion and order shall be
issued. The Assistant Secretary may attach necessary or appropriate
terms and conditions to the emergency interim order to ensure that the
authorized action will be consistent with the public interest.
Sec. 590.404 Final opinions and orders.
The Assistant Secretary shall issue a final opinion and order and
attach such conditions thereto as may be required by the public interest
after completion and review of the record. The final opinion and order
shall be based solely on the official record of the proceeding and
include a statement of findings and conclusions, as well as the reasons
or basis for them, and the appropriate order, condition, sanction,
relief or denial.
Sec. 590.405 Transferability.
Authorizations by the Assistant Secretary to import or export
natural gas shall not be transferable or assignable, unless specifically
authorized by the Assistant Secretary.
Sec. 590.406 Compliance with orders.
Any person required or authorized to take any action by a final
opinion and order of the Assistant Secretary shall file with FE, within
thirty (30) days after the requirement or authorization becomes
effective, a notice, under oath,
[[Page 81]]
that such requirement has been complied with or such authorization
accepted or otherwise acted upon, unless otherwise specified in the
order.
Sec. 590.407 Reports of changes.
Any person authorized to import or export natural gas has a
continuing obligation to give the Assistant Secretary written
notification, as soon as practicable, of any prospective or actual
changes to the information submitted during the application process upon
which the authorization was based, including, but not limited to,
changes to: The parties involved in the import or export arrangement,
the terms and conditions of any applicable contracts, the place of entry
or exit, the transporters, the volumes accepted or offered, or the
import or export price. Any notification filed under this section shall
contain the FE docket number(s) to which it relates. Compliance with
this section does not relieve an importer or exporter from
responsibility to file the appropriate application to amend a previous
import or export authorization under this part whenever such changes are
contrary to or otherwise not permitted by the existing authorization.
Subpart E_Applications for Rehearing
Sec. 590.501 Filing.
(a) An application for rehearing of a final opinion and order,
conditional order, or emergency interim order may be filed by any party
aggrieved by the issuance of such opinion and order within thirty (30)
days after issuance. The application shall be served on all parties.
(b) The application shall state concisely the alleged errors in the
final opinion and order, conditional order, or emergency interim order
and must set forth specifically the ground or grounds upon which the
application is based. If an order is sought to be vacated, reversed, or
modified by reason of matters that have arisen since the issuance of the
final opinion and order, conditional order, or emergency interim order,
the matters relied upon shall be set forth with specificity in the
application. The application shall also comply with the filing
requirements of Sec. 590.103.
Sec. 590.502 Application is not a stay.
The filing of an application for rehearing does not operate as a
stay of the Assistant Secretary's order, unless specifically ordered by
the Assistant Secretary.
Sec. 590.503 Opinion and order on rehearing.
Upon application for rehearing, the Assistant Secretary may grant or
deny rehearing or may abrogate or modify the final opinion and order,
conditional order, or emergency interim order with or without further
proceedings.
Sec. 590.504 Denial by operation of law.
Unless the Assistant Secretary acts upon the application for
rehearing within thirty (30) days after it is filed, it is deemed to be
denied. Such denial shall constitute final agency action for the purpose
of judicial review.
Sec. 590.505 Answers to applications for rehearing.
No answers to applications for rehearing shall be entertained. Prior
to the issuance of any final opinion and order on rehearing, however,
the Assistant Secretary may afford the parties an opportunity to file
briefs or answers and may order that a conference, oral presentation, or
trial-type hearing be held on some or all of the issues presented by an
application for rehearing.
[[Page 82]]
SUBCHAPTER H_ASSISTANCE REGULATIONS
PART 600_FINANCIAL ASSISTANCE RULES--Table of Contents
Subpart A_General
Sec.
600.1 Purpose.
600.2 Applicability.
600.3 Definitions.
600.4 Deviations.
600.5 Selection of award instrument.
600.6 Eligibility.
600.7 Small and disadvantaged and women-owned business participation.
600.8 Funding Opportunity Announcement.
600.9 [Reserved]
600.10 Form and content of applications.
600.11-12 [Reserved]
600.13 Merit review.
600.14 [Reserved]
600.15 Authorized uses of information.
600.16 Legal authority and effect of an award.
600.17 Contents of Award.
600.18 [Reserved]
600.19 Notification to unsuccessful applicants.
600.20 Maximum DOE obligation.
600.21 Access to records.
600.22 Disputes and appeals.
600.23 [Reserved]
600.24 Noncompliance.
600.25 Suspension and termination.
600.26-28 [Reserved]
600.29 Fixed obligation awards.
600.30 Cost sharing.
600.31 Research misconduct.
Subpart B_Uniform Administrative Requirements for Grants and Cooperative
Agreements With Institutions of Higher Education, Hospitals, and Other
Nonprofit Organizations
General
600.100 Purpose.
600.101 Definitions.
600.102 Effect on other issuances.
600.103 Deviations.
600.104 Subawards.
Pre-Award Requirements
600.110 Purpose.
600.111 Pre-award policies.
600.112 Forms for applying for Federal assistance.
600.113 Debarment and suspension.
600.114 Special award conditions.
600.115 Metric system of measurement.
600.116 Resource Conservation and Recovery Act.
600.117 [Reserved]
Post-Award Requirements
Financial and Program Management
600.120 Purpose of financial and program management.
600.121 Standards for financial management systems.
600.122 Payment.
600.123 Cost sharing or matching.
600.124 Program income.
600.125 Revision of budget and program plans.
600.126 Non-Federal audits.
600.127 Allowable costs.
600.128 Period of availability of funds.
Property Standards
600.130 Purpose of property standards.
600.131 Insurance coverage.
600.132 Real property.
600.133 Federally-owned and exempt property.
600.134 Equipment.
600.135 Supplies and other expendable property.
600.136 Intangible property.
600.137 Property trust relationship.
Procurement Standards
600.140 Purpose of procurement standards.
600.141 Recipient responsibilities.
600.142 Codes of conduct.
600.143 Competition.
600.144 Procurement procedures.
600.145 Cost and price analysis.
600.146 Procurement records.
600.147 Contract administration.
600.148 Contract provisions.
600.149 Resource Conservation and Recovery Act (RCRA).
Reports and Records
600.150 Purpose of reports and records.
600.151 Monitoring and reporting program performance.
600.152 Financial reporting.
600.153 Retention and access requirements for records.
Termination and Enforcement
600.160 Purpose of termination and enforcement.
600.161 Termination.
600.162 Enforcement.
After-the-Award Requirements
600.170 Purpose.
600.171 Closeout procedures.
600.172 Subsequent adjustments and continuing responsibilities.
[[Page 83]]
600.173 Collection of amounts due.
Additional Provisions
Appendix A to Subpart B of Part 600--Contract Provisions
Subpart C_Uniform Administrative Requirements for Grants and Cooperative
Agreements to State and Local Governments
General
600.200 Purpose and scope of this subpart.
600.201 Scope of Sec. Sec. 600.200 through 600.205.
600.202 Definitions.
600.203 Applicability.
600.204 Effect on other issuances.
600.205 Additions and exceptions.
Pre-Award Requirements
600.210 Forms for applying for grants.
600.211 State plans.
600.212 Special grant or subgrant conditions for ``high- risk''
recipients.
Post-Award Requirements
Financial Administration
600.220 Standards for financial management systems.
600.221 Payment.
600.222 Allowable costs.
600.223 Period of availability of funds.
600.224 Matching or cost sharing.
600.225 Program income.
600.226 Non-Federal audit.
Changes, Property, and Subawards
600.230 Changes.
600.231 Real property.
600.232 Equipment.
600.233 Supplies.
600.234 Copyrights.
600.235 Subawards to debarred and suspended parties.
600.236 Procurement.
600.237 Subgrants.
Reports, Records Retention, and Enforcement
600.240 Monitoring and reporting program performance.
600.241 Financial reporting.
600.242 Retention and access requirements for records.
600.243 Enforcement.
600.244 Termination for convenience.
After-the-Grant Requirements
600.250 Closeout.
600.251 Later disallowances and adjustments.
600.252 Collection of amounts due.
Entitlements [Reserved]
Subpart D_Administrative Requirements for Grants and Cooperative
Agreements With For-Profit Organizations
General
600.301 Purpose.
600.302 Definitions.
600.303 Deviations.
600.304 Special award conditions.
600.305 Debarment and suspension.
600.306 Metric system of measurement.
Post-Award Requirements
Financial and Program Management
600.310 Purpose of financial and program management.
600.311 Standards for financial management systems.
600.312 Payment.
600.313 Cost sharing or matching.
600.314 Program income.
600.315 Revision of budget and program plans.
600.316 Audits.
600.317 Allowable costs.
600.318 Fee and profit.
Property Standards
600.320 Purpose of property standards.
600.321 Real property and equipment.
600.322 Federally owned property.
600.323 Property management system.
600.324 Supplies.
600.325 Intellectual property.
Procurement Standards
600.330 Purpose of procurement standards.
600.331 Requirements.
Reports and Records
600.340 Purpose of reports and records.
600.341 Monitoring and reporting program and financial performance.
600.342 Retention and access requirements for records.
Termination and Enforcement
600.350 Purpose of termination and enforcement.
600.351 Termination.
600.352 Enforcement.
600.353 Disputes and appeals.
After-the-Award Requirements
600.360 Purpose.
600.361 Closeout procedures.
600.362 Subsequent adjustments and continuing responsibilities.
600.363 Collection of amounts due.
Additional Provisions
600.380 Purpose.
[[Page 84]]
600.381 Special provisions for Small Business Innovation Research
Grants.
Appendix A to Subpart D of Part 600--Patent and Data Provisions
Appendix B to Subpart D of Part 600--Contract Provisions
Subpart E [Reserved]
Subpart F_Eligibility Determination for Certain Financial Assistance
Programs_General Statement of Policy
600.500 Purpose and scope.
600.501 Definitions.
600.502 What must DOE determine.
600.503 Determining the economic interest of the United States.
600.504 Information an applicant must submit.
600.505 Other information DOE may consider.
Appendix A to Part 600--Generally Applicable Requirements
Appendix B to Part 600--Audit Report Distributees
Authority: 42 U.S.C. 7101 et seq.; 31 U.S.C. 6301-6308; 50 U.S.C.
2401 et seq.
Subpart A_General
Source: 61 FR 7166, Feb. 26, 1996, unless otherwise noted.
Sec. 600.1 Purpose.
This part implements the Federal Grant and Cooperative Agreement
Act, Pub. L. 95-224, as amended by Pub. L. 97-258 (31 U.S.C. 6301-6308),
and establishes uniform policies and procedures for the award and
administration of DOE grants and cooperative agreements. This subpart
(Subpart A) sets forth the general policies and procedures applicable to
the award and administration of grants, cooperative agreements, and
technology investment agreements. The specific guidance for technology
investment agreements is contained in part 603.
[61 FR 7166, Feb. 26, 1996, as amended at 70 FR 69253, Nov. 15, 2005]
Sec. 600.2 Applicability.
(a) Except as otherwise provided by Federal statute or program rule,
this part applies to applications, funding opportunity announcement, and
new, continuation, and renewal awards (and any subsequent subawards).
(b) Any new, continuation, or renewal award (and any subsequent
subaward) shall comply with any applicable Federal statute, Federal
rule, Office of Management and Budget (OMB) Circular and Governmentwide
guidance in effect as of the date of such award.
(c) Financial assistance to foreign entities is governed, to the
extent appropriate, by this part and by the administrative requirements
and cost principles applicable to their respective recipient type, e.g,
governmental, non-profit, commercial.
[61 FR 7166, Feb. 26, 1996, as amended at 74 FR 44275, Aug. 28, 2009]
Sec. 600.3 Definitions.
Amendment means the written document executed by a DOE Contracting
Officer that changes one or more terms or conditions of an existing
financial assistance award.
Award means the written document executed by a DOE Contracting
Officer, after an application is approved, which contains the terms and
conditions for providing financial assistance to the recipient.
Budget period means the interval of time, specified in the award,
into which a project is divided for budgeting and funding purposes.
Continuation award means an award for a succeeding or subsequent
budget period after the initial budget period of either an approved
project period or renewal thereof.
Contract means a written procurement contract executed by a
recipient or subrecipient for the acquisition of property or services
under a financial assistance award.
Contracting Officer means the DOE official authorized to execute
awards on behalf of DOE and who is responsible for the business
management and non-program aspects of the financial assistance process.
Cost sharing or matching means that portion of project or programs
costs not borne by the Federal Government.
DOE Patent Counsel means the Department of Energy Patent Counsel
assisting the Contracting Officer in the review and coordination of
patents and data related items.
Financial assistance means the transfer of money or property to a
recipient
[[Page 85]]
or subrecipient to accomplish a public purpose of support or stimulation
authorized by Federal statute. For purposes of this part, financial
assistance instruments are grants and cooperative agreements and
subawards.
Head of Contracting Activity or HCA means a DOE official with senior
management authority for the award and administration of financial
assistance instruments within one or more DOE organizational elements.
Merit review means a thorough, consistent, and objective examination
of applications based on pre-established criteria by persons who are
independent of those submitting the applications and who are
knowledgeable in the field of endeavor for which support is requested.
Nonprofit organization means any corporation, trust, foundation, or
institution which is entitled to exemption under section 501(c)(3) of
the Internal Revenue Code, or which is not organized for profit and no
part of the net earnings of which inure to the benefit of any private
shareholder or individual (except that the definition of ``nonprofit
organization'' at 48 CFR 27.301 shall apply for patent matters set forth
at Sec. Sec. 600.136 and 600.325).
Program rule means a rule issued by a DOE program office for the
award and administration of financial assistance which may describe the
program's purpose or objectives, eligibility requirements for
applicants, types of program activities or areas to be supported,
evaluation and selection process, cost sharing requirements, etc. These
rules usually supplement the generic policies and procedures for
financial assistance contained in this part.
Project means the set of activities described in an application,
State plan, or other document that is approved by DOE for financial
assistance (whether such financial assistance represents all or only a
portion of the support necessary to carry out those activities.)
Project period means the total period of time indicated in an award
during which DOE expects to provide financial assistance. A project
period may consist of one or more budget periods and may be extended by
DOE.
Recipient means the organization, individual, or other entity that
receives an award from DOE and is financially accountable for the use of
any DOE funds or property provided for the performance of the project,
and is legally responsible for carrying out the terms and conditions of
the award.
Renewal award means an award which adds one or more additional
budget periods to an existing project period.
Research and development means all research activities, both basic
and applied, and all development activities that are supported at
universities, colleges, and other non-profit institutions and commercial
organizations. ``Research'' is defined as a systematic study directed
toward fuller scientific knowledge or understanding of the subject
studied. The term research also includes activities involving the
training of individuals in research techniques where such activities
utilize the same facilities as other research and development activities
and where such activities are not included in the instruction function.
``Development'' is the systematic use of knowledge and understanding
gained from research directed toward the production of useful materials,
devices, systems, or methods, including design and development of
prototypes and processes.
Total Project Cost means all allowable costs, as set forth in the
applicable Federal cost principles, incurred in accomplishing the
objective of the project during the project period, including the value
of contributions made by third parties and costs incurred by Federally
Funded Research and Development Centers.
[61 FR 7166, Feb. 26, 1996, as amended at 64 FR 56420, Oct. 20, 1999; 68
FR 50650, Aug. 21, 2003; 74 FR 44275, Aug. 28, 2009]
Sec. 600.4 Deviations.
(a) General. (1) A deviation is the use of any policy, procedure,
form, standard, term, or condition which varies from a requirement of
this part, or the waiver of any such requirement, unless such use or
waiver is authorized or precluded by Federal statute. The use of
optional or discretionary provisions of this part, including special
restrictive conditions used in accordance with Sec. Sec. 600.114,
600.212, and 600.304 are not deviations. Awards to foreign entities
[[Page 86]]
and the waiver of the cost sharing requirements in Sec. 600.30 are not
subject to this section.
(2) A single-case deviation is a deviation which applies to one
financial assistance transaction and one applicant, recipient, or
subrecipient only.
(3) A class deviation is a deviation which applies to more than one
financial assistance transaction, applicant, recipient, or subrecipient.
(b) The DOE officials specified in paragraph (c) of this section may
authorize a deviation only upon a written determination that the
deviation is--
(1) Necessary to achieve program objectives;
(2) Necessary to conserve public funds;
(3) Otherwise essential to the public interest; or
(4) Necessary to achieve equity.
(c) Approval procedures. (1) A deviation request must be in writing
and must be submitted to the responsible DOE Contracting Officer. An
applicant for a subaward or a subrecipient shall submit any such request
through the recipient.
(2) Except as provided in paragraph (c)(3) of this section--
(i) A single-case deviation may be authorized by the responsible
HCA.
(ii) A class deviation may be authorized by the Director,
Procurement and Assistance Management or designee.
(3) Whenever the approval of OMB, other Federal agency, or other DOE
office is required to authorize a deviation, the proposed deviation must
be submitted to the Director, Procurement and Assistance Management or
designee for concurrence prior to submission to the authorizing
official.
(d) Notice. Whenever a request for a class deviation is approved,
DOE shall publish a notice in the Federal Register at least 15 days
before the class deviation becomes effective. Whenever a class deviation
is contained in a proposed program rule, the preamble to the proposed
rule shall describe the purpose and scope of the deviation.
(e) Subawards. A recipient may use a deviation in a subaward only
with the prior written approval of a DOE Contracting Officer.
[61 FR 7166, Feb. 26, 1996, as amended at 64 FR 56420, Oct. 20, 1999; 68
FR 50650, Aug. 21, 2003; 74 FR 44275, Aug. 28, 2009]
Sec. 600.5 Selection of award instrument.
(a) If DOE has administrative discretion in the selection of the
award instrument, the DOE decision as to whether the relationship is
principally one of procurement or financial assistance shall be made
pursuant to the Federal Grant and Cooperative Agreement Act as codified
at 31 U.S.C. 6301-6306. A grant or cooperative agreement shall be the
appropriate instrument, in accordance with this part, when the principal
purpose of the relationship is the transfer of money or property to
accomplish a public purpose of support or stimulation authorized by
Federal statute. In selecting the type of financial assistance
instrument, DOE shall limit involvement between itself and the recipient
in the performance of a project to the minimum necessary to achieve DOE
program objectives.
(b) When it is anticipated that substantial involvement will be
necessary between DOE and the recipient during performance of the
contemplated activity, the award instrument shall be a cooperative
agreement rather than a grant. Every cooperative agreement shall
explicitly state the substantial involvement anticipated between DOE and
the recipient during the performance of the project. Substantial
involvement exists if:
(1) Responsibility for the management, control, or direction of the
project is shared by DOE and the recipient; or
(2) Responsibility for the performance of the project is shared by
DOE and the recipient.
(c) Providing technical assistance or guidance of a programmatic
nature to a recipient does not constitute substantial involvement if:
(1) the recipient is not required to follow such guidance;
(2) the technical assistance or guidance is not expected to result
in continuing DOE involvement in the performance of the project; or
[[Page 87]]
(3) The technical assistance or guidance pertains solely to the
administrative requirements of the award.
(d) In cooperative agreements, DOE has the right to intervene in the
conduct or performance of project activities for programmatic reasons.
Intervention includes the interruption or modification of the conduct or
performance of project activities. Suspension or termination of the
cooperative agreement under Sec. Sec. 600.162, 600.243 and 600.352 does
not constitute intervention in the conduct or performance of project
activities.
[61 FR 7166, Feb. 26, 1996, as amended at 74 FR 44275, Aug. 28, 2009]
Sec. 600.6 Eligibility.
(a) General. DOE shall solicit applications for financial assistance
in a manner which provides for the maximum amount of competition
feasible.
(b) Restricted eligibility. If DOE restricts eligibility, an
explanation of why the restriction of eligibility is considered
necessary shall be included in the funding opportunity announcement,
program rule, or published notice.
(1) If the aggregate amount of DOE funds available for award under a
funding opportunity announcement or published notice is $1million or
more, unless authorized by statute or program rule, such restriction of
eligibility shall be:
(i) Supported by a written determination initiated by the program
office;
(ii) Concurred in by legal counsel and the Contracting Officer; and
(iii) Approved by an official no less than one level below the
responsible program Assistant Secretary, Deputy Administrator, or other
official of equivalent authority.
(2) Where the amount of DOE funds is less than $1 million, the
cognizant HCA and the Contracting Officer may approve the determination.
(c) Noncompetitive financial assistance. DOE may award a grant or
cooperative agreement or technology investment agreement on a
noncompetitive basis only if the application satisfies one or more of
the follow selection criteria:.
(1) The activity to be funded is necessary to the satisfactory
completion of, or is a continuation or renewal of, an activity presently
being funded by DOE or another Federal agency, and for which competition
for support would have a significant adverse effect on continuity or
completion of the activity.
(2) The activity is being or would be conducted by the applicant
using its own resources or those donated or provided by third parties;
however, DOE support of that activity would enhance the public benefits
to be derived and DOE knows of no other entity which is conducting or is
planning to conduct such an activity.
(3) The applicant is a unit of government and the activity to be
supported is related to performance of a governmental function within
the subject jurisdiction, thereby precluding DOE provision of support to
another entity.
(4) The applicant has exclusive domestic capability to perform the
activity successfully, based upon unique equipment, proprietary data,
technical expertise, or other such unique qualifications.
(5) The award implements an agreement between the United States
Government and a foreign government to fund a foreign applicant.
(6) Time constraints associated with a public health, safety,
welfare or national security requirement preclude competition.
(7) The proposed project was submitted as an unsolicited proposal
and represents a unique or innovative idea, method, or approach that
would not be eligible for financial assistance under a recent, current,
or planned funding opportunity announcement, and if, as determined by
DOE, a competitive funding opportunity announcement would not be
appropriate.
(8) The responsible program Assistant Secretary, Deputy
Administrator, or other official of equivalent authority determines that
a noncompetitive award is in the public interest. This authority may not
be delegated.
(d) Approval requirements. (1) Where the amount of DOE funds is $1
million or greater, determinations of noncompetitive awards shall be:
(i) Documented in writing;
(ii) Concurred in by the responsible program technical official and
local legal counsel; and
[[Page 88]]
(iii) Approved, prior to award, by the responsible program Assistant
Secretary, Deputy Administrator, or official of equivalent authority and
the Contracting Officer. The approval authority may be delegated to one
organizational level below the Assistant Secretary, Deputy
Administrator, or official of equivalent authority.
(2) Where the amount of DOE funds is less than $1 million,
determinations of noncompetitive awards shall be:
(i) Documented in writing;
(ii) Concurred in by local legal counsel, unless for a particular
award or class of awards of $1 million or less, review is waived by
legal counsel; and
(iii) Approved by the cognizant HCA and the Contracting Officer.
[74 FR 44275, Aug. 28, 2009, as amended at 74 FR 48850, Sept. 25, 2009]
Sec. 600.7 Small and disadvantaged and women-owned business participation.
(a) DOE encourages the participation in financial assistance awards
of small businesses, including those owned by socially and economically
disadvantaged individuals and women, of historically black colleges, and
of colleges and universities with substantial minority enrollments.
(b) For definitions of the terms in paragraph (a) of this section,
see the Higher Education Act of 1965, and 15 U.S.C. 644, as amended by
the Federal Acquisition Streamlining Act (FASA), and implementing
regulations under FASA issued by the Office of Federal Procurement
Policy.
(c) When entering into contracts under financial assistance awards,
recipients and subrecipients shall comply with the requirements of
Sec. Sec. 600.144, 600.236 and 600.331, as applicable.
[61 FR 7166, Feb. 26, 1996, as amended at 74 FR 44276, Aug. 28, 2009]
Sec. 600.8 Funding Opportunity Announcement.
(a) General. Funding Opportunity Announcements (FOA) include any
issuance used to announce funding opportunities that would result in the
award of a discretionary grant, cooperative agreement, or technology
investment agreement, whether it is called a program announcement,
program notice, solicitation, broad agency announcement, research
announcement, notice of program interest, or something else.
(1) A Program Assistant Secretary (or official of equivalent
authority) may annually issue a program notice describing research areas
in which financial assistance is being made available. Such notice shall
also state whether the research areas covered by the notice are to be
added to those listed in a previously issued program rule. If they are
to be included, then applications received as a result of the notice may
be treated as having been in response to that previously published
program rule. If they are not to be included, then applications received
in response to the notice are to be treated as unsolicited applications.
FOAs may be issued by a DOE Contracting Officer or program office with
prior concurrence of the contracting office.
(2) DOE must post synopses of its FOAs and modifications to the
announcements at the Grants.gov Internet site, using the standard data
elements/format, except for:
(i) Announcements of funding opportunities for awards less than
$25,000 for which 100 percent of eligible applicants live outside of the
United States.
(ii) Single source announcements of funding opportunities which are
specifically directed to a known recipient.
(b) Subawards. In accordance with the provisions of the applicable
statute and program rules, if a DOE financial assistance program
involves the award of financial assistance by a recipient to a
subrecipient, the recipient shall provide sufficient advance notice so
that potential subrecipients may prepare timely applications and secure
prerequisite reviews and approvals.
(c) Announcement format. DOE must use the government-wide standard
format to publish program announcements of funding opportunities.
[61 FR 7166, Feb. 26, 1996, as amended at 69 FR 7867, Feb. 20, 2004; 70
FR 69254, Nov. 15, 2005; 74 FR 44276, Aug. 28, 2009]
[[Page 89]]
Sec. 600.9 [Reserved]
Sec. 600.10 Form and content of applications.
(a) General. Applications shall be required for all financial
assistance projects or programs.
(b) Forms. Applications shall be on the form specified in a program
rule, the program announcement, or these regulations. (See also
Sec. Sec. 600.112 and 600.210.) For unsolicited applications, a guide
for preparation and submission is available from U.S. Department of
Energy, Federal Energy Technology Center, Attn: Unsolicited Proposal
Manager, Post Office Box 10940, Pittsburgh, PA, 15236-0940.
(c) Contents of an application. In general, a financial assistance
application shall include:
(1) A facesheet containing basic identifying information. The
facesheet shall be the Standard Form (SF)424;
(2) A detailed narrative description of the proposed project,
including the objectives of the project and the applicant's plan for
carrying it out;
(3) A budget with supporting justification; and
(d) Incomplete applications. DOE may return an application that:
(1) Is not signed, either in writing or electronically, by an
official authorized to bind the applicant; or
(2) Omits any information or documentation required by statute,
program rule, or the solicitation, if the nature of the omission
precludes review of the application.
(e) Supplemental information. During the review of a complete
application, DOE may request the submission of additional information
only if the information is essential to evaluate the application.
(f) Registration is required in the Central Contractor Registration
(CCR) for all applications. Information on registration can be obtained
at http://www.ccr.gov/Grantees.aspx.
[61 FR 7166, Feb. 26, 1996, as amended at 64 FR 56420, Oct. 20, 1999; 69
FR 7867, Feb. 20, 2004; 74 FR 44276, Aug. 28, 2009]
Sec. Sec. 600.11-600.12 [Reserved]
Sec. 600.13 Merit review.
(a) It is the policy of DOE that discretionary financial assistance
be awarded through a merit-based selection process. A merit review means
a thorough, consistent, and objective examination of applications based
on pre-established criteria by persons who are independent of those
submitting the applications and who are knowledgeable in the field of
endeavor for which support is requested.
(b) Each program office must establish a merit review system
covering the financial assistance programs it administers. Merit review
of financial assistance applications is intended to be advisory and is
not intended to replace the authority of the project/program official
with responsibility for deciding whether an award will be made.
[64 FR 56420, Oct. 20, 1999]
Sec. 600.14 [Reserved]
Sec. 600.15 Authorized uses of information.
(a) General. Information contained in applications shall be used
only for evaluation purposes unless such information is generally
available to the public or is already the property of the Government.
The Trade Secrets Act, 18 U.S.C. 1905, prohibits the unauthorized
disclosure by Federal employees of trade secret and confidential
business information.
(b) Treatment of application information. (1) An application or
other document, including any unsolicited information, may include
technical data and other data, including trade secrets and commercial or
financial information that is privileged or confidential, which the
applicant does not want disclosed to the public or used by the
Government for any purpose other than application evaluation.
(i) To protect such data, the submitter must mark the cover sheet of
the application or other document with the following Notice:
[[Page 90]]
Notice of Restriction on Disclosure and Use of Data
Pages [__] of this document may contain trade secrets or commercial or
financial information that is privileged or confidential and is exempt
from public disclosure. Such information shall be used or disclosed only
for evaluation purposes or in accordance with a financial assistance or
loan agreement between the submitter and the Government. The Government
may use or disclose any information that is not appropriately marked or
otherwise restricted, regardless of source.
(ii)(A) To further protect such data, except as otherwise provided
in paragraph (b)(1)(iii) of this section, each page containing trade
secrets or commercial or financial information that is privileged or
confidential must be specifically identified and marked with text
similar to the following:
May contain trade secrets or commercial or financial information
that is privileged or confidential and exempt from public disclosure.
(B) In addition, each line or paragraph containing trade secrets or
commercial or financial information that is privileged or confidential
must be marked with brackets or other clear identification, such as
highlighting.
(iii) (A) In the case where a form for data submission is
unalterable, such as certain forms submitted through Grants.gov,
submitters must include in a cover letter or the project narrative a
notice like the following:
Forms [__] may contain trade secrets or commercial or financial
information that is privileged or confidential and exempt from public
disclosure. Such information shall be used or disclosed only for
evaluation purposes or in accordance with a financial assistance or loan
agreement between the submitter and the Government. The Government may
use or disclose any information that is not appropriately marked or
otherwise restricted, regardless of source.
(B) The cover letter or project narrative must also specify the
particular information on such forms that the submitter believes
contains trade secrets or commercial or financial information that is
privileged or confidential.
(2) Unless DOE specifies otherwise, DOE shall not refuse to consider
an application or other document solely on the basis that the
application or other document is restrictively marked in accordance with
paragraph (b)(1) of this section.
(3) Data (or abstracts of data) specifically marked in accordance
with paragraph (b)(1) of this section shall be used by DOE or its
designated representatives solely for the purpose of evaluating the
proposal. The data so marked shall not be disclosed or used for any
other purpose except to the extent provided in any resulting assistance
agreement, or to the extent required by law, including the Freedom of
Information Act (5 U.S.C. 552) (10 CFR Part 1004). The Government shall
not be liable for disclosure or use of unmarked data and may use or
disclose such data for any purpose.
(4) This process enables DOE to follow the provisions of 10 CFR
1004.11(d) in the event a Freedom of Information Act (5 U.S.C. 552)
request is received for the data submitted, such that information not
identified as subject to a claim of exemption may be released without
obtaining the submitter's views under the process set forth in 10 CFR
1004.11(c)
[76 FR 26581, May 9, 2011]
Sec. 600.16 Legal authority and effect of an award.
(a) A DOE financial assistance award is valid only if it is in
writing and is signed, either in writing or electronically, by a DOE
Contracting Officer.
(b) Recipients are free to accept or reject the award. A request to
draw down DOE funds constitutes acceptance; however, DOE may require
formal acceptance of an award.
(c) DOE funds awarded under a grant, cooperative agreement, or
technology investment agreement shall be obligated as of the date the
DOE Contracting Officer signs the award; however, the recipient is not
authorized to incur costs under an award prior to the beginning date of
the budget period shown in the award except as may be authorized in
accordance with Sec. Sec. 600.125(e), 600.230, 600.317(b), or 603.830
of this part. The duration of the DOE financial obligation shall not
extend beyond the expiration date of the budget period shown in the
award unless authorized by a DOE Contracting Officer by means of a
continuation or renewal
[[Page 91]]
award or other extension of the budget period.
[61 FR 7166, Feb. 26, 1996, as amended at 70 FR 69254, Nov. 15, 2005; 74
FR 44276, Aug. 28, 2009]
Sec. 600.17 Contents of Award.
Each financial assistance award shall be made on a Notice of
Financial Assistance Award (NFAA) which contains basic identifying and
funding information. The NFAA provides the contents of the award
including any special terms and conditions, program regulations, the
National Policy Assurances, and any other provisions necessary to
establish the respective rights, duties, obligations, and
responsibilities of DOE and the recipient, consistent with the
requirements of this part.
[74 FR 44276, Aug. 28, 2009]
Sec. 600.18 [Reserved]
Sec. 600.19 Notification to unsuccessful applicants.
DOE shall promptly notify in writing each applicant whose
application has not been selected for award or whose application cannot
be funded because of the unavailability of appropriated funds. If the
application was not selected, the written notice shall explain why the
application was not selected.
[61 FR 7166, Feb. 26, 1996, as amended at 74 FR 44276, Aug. 28, 2009]
Sec. 600.20 Maximum DOE obligation.
(a) The maximum DOE obligation to the recipient is--
(1) For monetary awards, the amount shown in the award as the amount
of DOE funds obligated, and
(2) Any designated property.
(b) DOE shall not be obligated to make any additional, supplemental,
continuation, renewal, or other award for the same or any other purpose.
Sec. 600.21 Access to records.
(a) In addition to recipient and subrecipient responsibilities
relative to access to records specified in Sec. Sec. 600.153, 600.242
and 600.342, for any negotiated contract or subcontract in excess of
$10,000 under a grant or cooperative agreement, DOE, the Comptroller
General of the United States, the recipient and the subrecipient (if the
contract was awarded under a financial assistance subaward), or any of
their authorized representatives shall have the right of access to any
books, documents, papers, or other records of the contractor or
subcontractor which are pertinent to that contract or subcontract, in
order to make audit, examination, excerpts, and copies.
(b) The right of access may be exercised for as long as the
applicable records are retained by the recipient, subrecipient,
contractor, or subcontractor.
[61 FR 7166, Feb. 26, 1996, as amended at 74 FR 44276, Aug. 28, 2009]
Sec. 600.22 Disputes and appeals.
(a) Informal dispute resolution. Whenever practicable, DOE shall
attempt to resolve informally any dispute over the award or
administration of financial assistance. Informal resolution, including
resolution through an alternative dispute resolution mechanism, shall be
preferred over formal procedures, to the extent practicable.
(b) Alternative dispute resolution (ADR). Before issuing a final
determination in any dispute in which informal resolution has not been
achieved, the Contracting Officer shall suggest that the other party
consider the use of voluntary consensual methods of dispute resolution,
such as mediation. The DOE dispute resolution specialist is available to
provide assistance for such disputes, as are trained mediators of other
federal agencies. ADR may be used at any stage of a dispute.
(c) Final determination. Whenever a dispute is not resolved
informally or through an alternative dispute resolution process, DOE
shall mail (by certified mail) a brief written determination signed by a
Contracting Officer, setting forth DOE's final disposition of such
dispute. Such determination shall contain the following information:
(1) A summary of the dispute, including a statement of the issues
and of the positions taken by the Department and the party or parties to
the dispute; and
(2) The factual, legal and, if appropriate, policy reasons for DOE's
disposition of the dispute.
(d) Right of appeal. Except as provided in paragraph (f)(1) of this
section, the
[[Page 92]]
final determination under paragraph (c) of this section may be appealed
to the cognizant Senior Procurement Executive (SPE) for either DOE or
the National Nuclear Security Administration (NNSA). The mailing address
for the DOE SPE is Office of Procurement and Assistance Management, 1000
Independence Ave., SW, Washington, DC 20585. The mailing address for the
NNSA SPE is Office of Acquisition and Supply Management, 1000
Independence Ave., SW., Washington, DC 20585.
(e) Effect of appeal. The filing of an appeal with the SPE shall not
stay any determination or action taken by DOE which is the subject of
the appeal. Consistent with its obligation to protect the interests of
the Federal Government, DOE may take such authorized actions as may be
necessary to preserve the status quo pending decision by the SPE, or to
preserve its ability to provide relief in the event the SPE decides in
favor of the appellant.
(f) Review on appeal. (1) The SPE shall have no jurisdiction to
review
(i) Any preaward dispute (except as provided in paragraph (f)(2)(ii)
of this section), including use of any special restrictive condition
pursuant to Sec. 600.114, Sec. 600.212, or Sec. 600.304;
(ii) DOE denial of a request for a deviation under Sec. 600.4,
Sec. 600.103, Sec. 600.205, or Sec. 600.303 of this part;
(iii) DOE denial of a request for a budget revision or other change
in the approved project under Sec. 600.125, Sec. 600.127, Sec.
600.222, Sec. 600.230, Sec. 600.315, or Sec. 600.317 of this part or
under another term or condition of the award;
(iv) Any DOE action authorized under Sec. 600.162(a)(1), (2), (3)
or (5), Sec. 600.243(a)(1), (a)(3), or Sec. 600.352(a)(1), (2), (3) or
(5) for suspensions only; or Sec. 600.162(a)(4), Sec. 600.243(a)(4) or
Sec. 600.352(a)(4) for actions disapproving renewal applications or
other requests for extension of time or additional funding for the same
project when related to recipient noncompliance, or such actions
authorized by program rule;
(v) Any DOE decision about an action requiring prior DOE approval
under Sec. 600.144, Sec. 600.236, or Sec. 600.331 of this part or
under another term or condition of the award;
(2) In addition to any right of appeal established by program rule,
or by the terms and conditions (not inconsistent with paragraph (f)(1)
of this section) of an award, the Board shall have jurisdiction to
review:
(i) A DOE determination that the recipient has failed to comply with
the applicable requirements of this part, the program statute or rules,
or other terms and conditions of the award;
(ii) A DOE decision not to make a continuation award based on any of
the determinations described in paragraph (f)(2)(i) of this section;
(iii) Termination of an award for cause, in whole or in part, by
DOE;
(iv) A DOE determination that an award is void or invalid;
(v) The application by DOE of an indirect cost rate; and
(vi) DOE disallowance of costs.
(3) In reviewing disputes authorized under paragraph (f)(2) of this
section, the Board shall be bound by the applicable law, statutes, and
rules, including the requirements of this part, and by the terms and
conditions of the award.
(4) The decision of the Board shall be the final decision of the
Department.
[61 FR 7166, Feb. 26, 1996, as amended at 74 FR 44276, Aug. 28, 2009]
Sec. 600.23 [Reserved]
Sec. 600.24 Noncompliance.
(a) Except for noncompliance with nondiscrimination requirements
under 10 CFR part 1040, whenever DOE determines that a recipient has not
complied with the applicable requirements of this part, with the
requirements of any applicable program statute or rule, or with any
other term or condition of the award, a DOE Contracting Officer shall
provide to the recipient (by certified mail, return receipt requested) a
written notice setting forth:
(1) The factual and legal bases for the determination of
noncompliance;
(2) The corrective actions and the date (not less than 30 days after
the date of the notice) by which they must be taken.
(3) Which of the actions authorized under Sec. 600.122(n), Sec.
600.162(a) Sec. 600.243(a), Sec. 600.312(g), or Sec. 600.352(a) of
this part DOE may take if the recipient does not
[[Page 93]]
achieve compliance within the time specified in the notice, or does not
provide satisfactory assurances that actions have been initiated which
will achieve compliance in a timely manner.
(b) DOE may take any of the actions set forth in Sec. 600.122(n),
Sec. 600.162(a), Sec. Sec. 600.243(a), 600.312(g), or 600.352(a) of
this part concurrent with the written notice required under paragraph
(a) of this section or with less than 30 days written notice to the
recipient whenever:
(1) There is evidence the award was obtained by fraud;
(2) The recipient ceases to exist or becomes legally incapable of
performing its responsibilities under the financial assistance award; or
(3) There is a serious mismanagement or misuse of financial
assistance award funds necessitating immediate action.
[61 FR 7166, Feb. 26, 1996, as amended at 64 FR 56420, Oct. 20, 1999; 74
FR 44277, Aug. 28, 2009]
Sec. 600.25 Suspension and termination.
(a) Suspension and termination for cause. DOE may suspend or
terminate an award for cause on the basis of:
(1) A noncompliance determination under Sec. 600.24, Sec.
600.122(n), Sec. 600.162(a), Sec. 600.243(a) or Sec. 600.352(a); or
(2) A suspension or debarment of the awardee under 2 CFR 180 and
901.
(b) Notification requirements. Except as provided in Sec. 600.24,
Sec. 600.162(a), Sec. 600.243(a), or Sec. 600.352(a) before
suspending or terminating an award for cause, DOE shall mail to the
awardee (by certified mail, return receipt requested) a separate written
notice in addition to that required by Sec. 600.24(a) at least ten days
prior to the effective date of the suspension or termination. Such
notice shall include, as appropriate:
(1) The factual and legal bases for the suspension or termination;
(2) The effective date or dates of the DOE action;
(3) If the action does not apply to the entire award, a description
of the activities affected by the action;
(4) Instructions concerning which costs shall be allowable during
the period of suspension, or instructions concerning allowable
termination costs, including in either case, instructions concerning any
subgrants or contracts;
(5) Instructions concerning required final reports and other
closeout actions for terminated awards (see Sec. Sec. 600.170 through
600.173, Sec. Sec. 600.250 through 600.252 and Sec. Sec. 600.350
through 600.353;
(6) A statement of the awardee's right to appeal a termination for
cause pursuant to Sec. 600.22; and
(7) The dated signature of a DOE Contracting Officer.
(c) Suspension. (1) Unless DOE and the awardee agree otherwise, no
period of suspension shall exceed 90 days.
(2) DOE may cancel the suspension at any time, up to and including
the date of expiration of the period of suspension, if the awardee takes
satisfactory corrective action before the expiration date of the
suspension or gives DOE satisfactory evidence that such corrective
action will be taken.
(3) If the suspension has not been cancelled by the expiration date
of the period of suspension, the awardee shall resume the suspended
activities or project unless, prior to the expiration date, DOE notifies
the awardee in writing that the period of suspension shall be extended
consistent with paragraph (c)(1) of this section or that the award shall
be terminated.
(4) As of the effective date of the suspension, DOE shall withhold
further payments and shall allow new obligations incurred by the awardee
during the period of suspension only if such costs were authorized in
the notice of suspension or in a subsequent letter.
(5) If the suspension is cancelled or expires and the award is not
terminated, DOE shall reimburse the awardee for any authorized allowable
costs incurred during the suspension and, if necessary, may amend the
award to extend the period of performance.
(d) Termination by mutual agreement. In addition to any situation
where a termination for cause pursuant to Sec. Sec. 600.24, 600.160
through 600.162 Sec. Sec. 600.243 through 600.244 or Sec. Sec. 600.350
through 600.353 is appropriate, either DOE or the awardee may initiate a
termination of an award (or portion thereof) as described in this
paragraph. If the awardee initiates a termination, the awardee must
notify DOE in writing and specify the awardee's reasons for
[[Page 94]]
requesting the termination, the proposed effective date of the
termination, and, in the case of a partial termination, a description of
the activities to be terminated, and an appropriate budget revision. DOE
shall terminate an award or portion thereof under this paragraph only if
both parties agree to the termination and the conditions under which it
shall occur. If DOE determines that the remaining activities under a
partially terminated award would not accomplish the purpose for which
the award was originally awarded, DOE may terminate the entire award.
(e) Effect of termination. The awardee shall incur no new
obligations after the effective date of the termination of an award (or
portion thereof), and shall cancel as many outstanding obligations as
possible. DOE shall allow full credit to the awardee for the DOE share
of noncancellable obligations properly incurred by the awardee prior to
the effective date of the termination.
(f) Subgrants. Awardees shall follow the policies and procedures in
this section and in Sec. Sec. 600.24, 600.160 through 600.162
Sec. Sec. 600.243 through 600.244 or Sec. Sec. 600.350 through 600.353
for suspending and terminating subgrants.
[61 FR 7166, Feb. 26, 1996, as amended at 74 FR 44277, Aug. 28, 2009]
Sec. Sec. 600.26-600.28 [Reserved]
Sec. 600.29 Fixed obligation awards.
(a) General. This section contains provisions applicable to the
award of financial assistance instruments on a fixed amount basis. Under
a fixed obligation award, funds are issued in support of a project
without a requirement for Federal monitoring of actual costs
subsequently incurred.
(b) Provisions applicable to fixed obligation awards. Financial
assistance awards may be made on a fixed obligation basis subject to the
following requirements:
(1) Each fixed obligation award may neither exceed $250,000 nor
exceed one year in length.
(2) Programs which require mandatory cost sharing are not eligible.
(3) Proposed costs must be analyzed in detail to ensure consistency
with applicable cost principles.
(4) Budget categories are not stipulated in making an award.
However, budgets are submitted by an applicant and reviewed for purposes
of establishing the amount to be awarded.
(5) Payments must be made in the same manner as other financial
assistance awards, except that when determined appropriate by the
cognizant program official and Contracting Officer a lump sum payment
may be made.
(6) Recipients must certify in writing to the Contracting Officer at
the end of the project that the activity was completed or the level of
effort was expended, however should the activity or effort not be
carried out, the recipient would be expected to make appropriate
reimbursements.
(7) Periodic reports may be established for each award so long as
they are not more frequently than quarterly.
(8) Changes in principal investigator or project leader, scope of
effort, or institution, must receive the prior approval of the
Department.
[61 FR 7166, Feb. 26, 1996, as amended at 74 FR 44277, Aug. 28, 2009]
Sec. 600.30 Cost sharing.
In addition to the requirements of Sec. 600.123, Sec. 600.224, or
Sec. 600.313, the following requirements apply to research,
development, demonstration and commercial application activities
projects:
(a) Cost sharing is required for most financial assistance awards
for research, development, demonstration and commercial applications
activities initiated after the enactment of the Energy Policy Act of
2005 on August 8, 2005. This requirement does not apply to:
(1) An award under the small business innovation research program or
the small business technology transfer program; or
(2) A program with cost sharing requirements defined by other than
Section 988 of the Energy Policy Act of 2005 including other sections of
the 2005 Act and the Energy Policy Act of 1992.
(b) A cost share of at least 20 percent of the cost of the activity
is required
[[Page 95]]
for research and development except where:
(1) A research or development activity of a basic or fundamental
nature has been excluded by an appropriate officer of the Department,
generally an Under Secretary; or
(2) The Secretary has determined it is necessary and appropriate to
reduce or eliminate the cost sharing requirement for a research and
development activity of an applied nature.
(c) A cost share of at least 50 percent of the cost of a
demonstration or commercial application program or activity is required
unless the Secretary has determined it is necessary and appropriate to
reduce the cost sharing requirements, taking into consideration any
technological risk relating to the activity.
(d) Cost share shall be provided by non-Federal funds unless
otherwise authorized by statute. In calculating the amount of the non-
Federal contribution:
(1) Base the non-Federal contribution on total project costs,
including the cost of work where funds are provided directly to a
partner, consortium member or subrecipient, such as a Federally Funded
Research and Development Center;
(2) Include the following costs as allowable in accordance with the
applicable cost principles:
(i) Cash;
(ii) Personnel costs;
(iii) The value of a service, other resource, or third party in-kind
contribution determined in accordance with the applicable circular of
the Office of Management and Budget;
(iv) Indirect costs or facilities and administrative costs; and/or
(v) Any funds received under the power program of the Tennessee
Valley Authority (except to the extent that such funds are made
available under an annual appropriation Act);
(3) Exclude the following costs:
(i) Revenues or royalties from the prospective operation of an
activity beyond the time considered in the award;
(ii) Proceeds from the prospective sale of an asset of an activity;
or
(iii) Other appropriated Federal funds.
(iv) Repayment of the Federal share of a cost-shared activity under
Section 988 of the Energy Policy Act of 2005 shall not be a condition of
the award.
[74 FR 44277, Aug. 28, 2009]
Sec. 600.31 Research misconduct.
(a) A recipient is responsible for maintaining the integrity of
research of any kind under an award from DOE including the prevention,
detection, and remediation of research misconduct, and the conduct of
inquiries, investigations, and adjudication of allegations of research
misconduct in accordance with the requirements of this section.
(b) For purposes of this section, the following definitions are
applicable:
Adjudication means a formal review of a record of investigation of
alleged research misconduct to determine whether and what corrective
actions and sanctions should be taken.
Fabrication means making up data or results and recording or
reporting them.
Falsification means manipulating research materials, equipment, or
processes, or changing or omitting data or results such that the
research is not accurately represented in the research record.
Finding of Research Misconduct means a determination, based on a
preponderance of the evidence, that research misconduct has occurred.
Such a finding requires a conclusion that there has been a significant
departure from accepted practices of the relevant research community and
that it be knowingly, intentionally, or recklessly committed.
Inquiry means information gathering and initial fact-finding to
determine whether an allegation or apparent instance of misconduct
warrants an investigation.
Investigation means the formal examination and evaluation of the
relevant facts.
Plagiarism means the appropriation of another person's ideas,
processes, results, or words without giving appropriate credit.
Research means all basic, applied, and demonstration research in all
fields of science, medicine, engineering, and
[[Page 96]]
mathematics, including, but not limited to, research in economics,
education, linguistics, medicine, psychology, social sciences
statistics, and research involving human subjects or animals.
Research misconduct means fabrication, falsification, or plagiarism
in proposing, performing, or reviewing research, or in reporting
research results, but does not include honest error or differences of
opinion.
Research record means the record of all data or results that embody
the facts resulting from scientists' inquiries, including, but not
limited to, research proposals, laboratory records, both physical and
electronic, progress reports, abstracts, theses, oral presentations,
internal reports, and journal articles.
(c) Unless otherwise instructed by the Contracting Officer, the
recipient must conduct an initial inquiry into any allegation of
research misconduct. If the recipient determines that there is
sufficient evidence to proceed to an investigation, it must notify the
Contracting Officer and, unless otherwise instructed, the recipient
must:
(1) Conduct an investigation to develop a complete factual record
and an examination of such record leading to either a finding of
research misconduct and an identification of appropriate remedies or a
determination that no further action is warranted;
(2) Inform the Contracting Officer if an initial inquiry supports an
investigation and, if requested by the Contracting Officer thereafter,
keep the Contracting Officer informed of the results of the
investigation and any subsequent adjudication. When an investigation is
complete, the recipient will forward to the Contracting Officer a copy
of the evidentiary record, the investigative report, any recommendations
made to the recipient's adjudicating official, and the adjudicating
official's decision and notification of any corrective action taken or
planned, and the subject's written response to the recommendations (if
any).
(3) If the investigation leads to a finding of research misconduct,
conduct an adjudication by a responsible official who was not involved
in the inquiry or investigation and is separated organizationally from
the element which conducted the investigation. The adjudication must
include a review of the investigative record and, as warranted, a
determination of appropriate corrective actions and sanctions.
(d) The Department may elect to act in lieu of the recipient in
conducting an inquiry or investigation into an allegation of research
misconduct if the Contracting Officer finds that:
(1) The research organization is not prepared to handle the
allegation in a manner consistent with this section;
(2) The allegation involves an entity of sufficiently small size
that it cannot reasonably conduct the inquiry;
(3) DOE involvement is necessary to ensure the public health,
safety, and security, or to prevent harm to the public interest; or,
(4) The allegation involves possible criminal misconduct.
(e) DOE reserves the right to pursue such remedies and other actions
as it deems appropriate, consistent with the terms and conditions of the
award instrument and applicable laws and regulations. However, the
recipient's good faith administration of this section and the
effectiveness of its remedial actions and sanctions shall be positive
considerations and shall be taken into account as mitigating factors in
assessing the need for such actions. If DOE pursues any such action, it
will inform the subject of the action of the outcome and any applicable
appeal procedures.
(f) In conducting the activities in paragraph (c) of this section,
the recipient and the Department, if it elects to conduct the inquiry or
investigation, shall adhere to the following guidelines:
(1) Safeguards for information and subjects of allegations. The
recipient shall provide safeguards to ensure that individuals may bring
allegations of research misconduct made in good faith to the attention
of the recipient without suffering retribution. Safeguards include:
protection against retaliation; fair and objective procedures for
examining and resolving allegations; and diligence in protecting
positions and reputations. The recipient shall also provide the subjects
of allegations confidence that their rights are protected
[[Page 97]]
and that the mere filing of an allegation of research misconduct will
not result in an adverse action. Safeguards include timely written
notice regarding substantive allegations against them, a description of
the allegation and reasonable access to any evidence submitted to
support the allegation or developed in response to an allegation and
notice of any findings of research misconduct.
(2) Objectivity and expertise. The recipient shall select
individual(s) to inquire, investigate, and adjudicate allegations of
research misconduct who have appropriate expertise and have no
unresolved conflict of interest. The individual(s) who conducts an
adjudication must not be the same individual(s) who conducted the
inquiry or investigation, and must be separate organizationally from the
element that conducted the inquiry or investigation.
(3) Timeliness. The recipient shall coordinate, inquire, investigate
and adjudicate allegations of research misconduct promptly, but
thoroughly. Generally, an investigation should be completed within 120
days of initiation, and adjudication should be complete within 60 days
of receipt of the record of investigation.
(4) Confidentiality. To the extent possible, consistent with fair
and thorough processing of allegations of research misconduct and
applicable law and regulation, knowledge about the identity of the
subjects of allegations and informants should be limited to those with a
need to know.
(5) Remediation and sanction. If the recipient finds that research
misconduct has occurred, it shall assess the seriousness of the
misconduct and its impact on the research completed or in process. The
recipient must take all necessary corrective actions. Such action may
include but are not limited to, correcting the research record and as
appropriate imposing restrictions, controls, or other parameters on
research in process or to be conducted in the future. The recipient must
coordinate remedial actions with the Contracting Officer. The recipient
must also consider whether personnel sanctions are appropriate. Any such
sanction must be consistent with any applicable personnel laws,
policies, and procedures, and must take into account the seriousness of
the misconduct and its impact, whether it was done knowingly or
intentionally, and whether it was an isolated event or pattern of
conduct.
(g) By executing this agreement, the recipient provides its
assurance that it has established an administrative process for
performing an inquiry, mediating if possible, investigating, and
reporting allegations of research misconduct; and that it will comply
with its own administrative process and the requirements and definitions
of 10 CFR part 733 for performing an inquiry, possible mediation,
investigation and reporting of allegations of research misconduct.
(h) The recipient must insert or have inserted the substance of this
section, including paragraph (g), in subawards at all tiers that involve
research.
[70 FR 37013, June 28, 2005, as amended at 74 FR 44278, Aug. 28, 2009]
Subpart B_Uniform Administrative Requirements for Grants and Cooperative
Agreements With Institutions of Higher Education, Hospitals, and Other
Nonprofit Organizations
Source: 59 FR 53266, Oct. 21, 1994, unless otherwise noted.
General
Sec. 600.100 Purpose.
This subpart implements OMB Circular A-110 and establishes uniform
administrative requirements for grants and agreements awarded to
institutions of higher education, hospitals, and other non-profit
organizations. It also establishes rules governing subawards to
institutions of higher education, hospitals, and non-profit
organizations (including grants and cooperative agreements administered
by State, local and Indian Tribal governments).
[59 FR 53266, Oct. 21, 1994, as amended at 68 FR 50650, Aug. 21, 2003]
[[Page 98]]
Sec. 600.101 Definitions.
Accrued expenditures means the charges incurred by the recipient
during a given period requiring the provision of funds for:
(1) Goods and other tangible property received;
(2) Services performed by employees, contractors, subrecipients, and
other payees; and,
(3) Other amounts becoming owed under programs for which no current
services or performance is required.
Accrued income means the sum of:
(1) Earnings during a given period from services performed by the
recipient, and goods and other tangible property delivered to
purchasers, and
(2) Amounts becoming owed to the recipient for which no current
services or performance is required by the recipient.
Acquisition cost of equipment means the net invoice price of the
equipment, including the cost of modifications, attachments,
accessories, or auxiliary apparatus necessary to make the property
usable for the purpose for which it was acquired. Other charges, such as
the cost of installation, transportation, taxes, duty or protective in-
transit insurance, shall be included or excluded from the unit
acquisition cost in accordance with the recipient's regular accounting
practices.
Advance means a payment made by Treasury check or other appropriate
payment mechanism to a recipient upon its request either before outlays
are made by the recipient or through the use of predetermined payment
schedules.
Award means financial assistance that provides support or
stimulation to accomplish a public purpose. Awards include grants and
other agreements in the form of money or property in lieu of money, by
DOE to an eligible recipient. The term does not include: technical
assistance, which provides services instead of money; other assistance
in the form of loans, loan guarantees, interest subsidies, or insurance;
direct payments of any kind to individuals; and, contracts which are
required to be entered into and administered under procurement laws and
regulations.
Cash contributions means the recipient's cash outlay, including the
outlay of money contributed to the recipient by third parties.
Closeout means the process by which DOE determines that all
applicable administrative actions and all required work of the award
have been completed by the recipient and DOE.
Contract means a procurement contract under an award or subaward,
and a procurement subcontract under a recipient's or subrecipient's
contract.
Cost sharing or matching means that portion of project or program
costs not borne by DOE.
Date of completion means the date on which all work under an award
is completed or the date on the award document, or any supplement or
amendment thereto, on which DOE sponsorship ends.
Disallowed costs means those charges to an award that the DOE
determines to be unallowable, in accordance with the applicable Federal
cost principles or other terms and conditions contained in the award.
Equipment means tangible nonexpendable personal property including
exempt property charged directly to the award having a useful life of
more than one year and an acquisition cost of $5000 or more per unit.
However, consistent with recipient policy, lower limits may be
established.
Excess property means property under the control of any Federal
awarding agency that, as determined by the head thereof, is no longer
required for its needs or the discharge of its responsibilities.
Exempt property means tangible personal property acquired in whole
or in part with Federal funds, where the Federal awarding agency has
statutory authority to vest title in the recipient without further
obligation to the Federal Government. An example of exempt property
authority is contained in the Federal Grant and Cooperative Agreement
Act (31 U.S.C. 6306), for property acquired under an award to conduct
basic or applied research by a non-profit institution of higher
education or non-profit organization whose principal purpose is
conducting scientific research.
Federal awarding agency means the Federal agency that provides an
award to the recipient.
[[Page 99]]
Federal funds authorized means the total amount of Federal funds
obligated by the Federal Government for use by the recipient. This
amount may include any authorized carryover of unobligated funds from
prior funding periods when permitted by agency regulations or agency
implementing instructions.
Federal share of real property, equipment, or supplies means that
percentage of the property's acquisition costs and any improvement
expenditures paid with Federal funds.
Funding period or budget period means the period of time when DOE
funding is available for obligation by the recipient.
Intangible property and debt instruments means, but is not limited
to, trademarks, copyrights, patents and patent applications and such
property as loans, notes and other debt instruments, lease agreements,
stock and other instruments of property ownership, whether considered
tangible or intangible.
Obligations means the amounts of orders placed, contracts and grants
awarded, services received and similar transactions during a given
period that require payment by the recipient during the same or a future
period.
Outlays or expenditures means charges made to the project or
program. They may be reported on a cash or accrual basis. For reports
prepared on a cash basis, outlays are the sum of cash disbursements for
direct charges for goods and services, the amount of indirect expense
charged, the value of third party in-kind contributions applied and the
amount of cash advances and payments made to subrecipients. For reports
prepared on an accrual basis, outlays are the sum of cash disbursements
for direct charges for goods and services, the amount of indirect
expense incurred, the value of in-kind contributions applied, and the
net increase (or decrease) in the amounts owed by the recipient for
goods and other property received, for services performed by employees,
contractors, subrecipients and other payees and other amounts becoming
owed under programs for which no current services or performance are
required.
Personal property means property of any kind except real property.
It may be tangible, having physical existence, or intangible, having no
physical existence, such as copyrights, patents, or securities.
Prior approval means written approval by a contracting officer
evidencing prior consent.
Program income means gross income earned by the recipient that is
directly generated by a supported activity or earned as a result of the
award (see exclusions in Sec. Sec. 600.124 (e) and (h)). Program income
includes, but is not limited to, income from fees for services
performed, the use or rental of real or personal property acquired under
federally-funded projects, the sale of commodities or items fabricated
under an award, license fees and royalties on patents and copyrights,
and interest on loans made with award funds. Interest earned on advances
of DOE funds is not program income. Except as otherwise provided in this
subpart, program regulations, or the terms and conditions of the award,
program income does not include the receipt of principal on loans,
rebates, credits, discounts, etc., or interest earned on any of them.
Project costs means all allowable costs, as set forth in the
applicable Federal cost principles, incurred by a recipient and the
value of the contributions made by third parties in accomplishing the
objectives of the award during the project period.
Project period means the period established in the award document
during which DOE sponsorship begins and ends.
Property means, unless otherwise stated, real property, equipment,
intangible property and debt instruments.
Real property means land, including land improvements, structures
and appurtenances thereto, but excludes movable machinery and equipment.
Recipient means an organization receiving financial assistance
directly from DOE to carry out a project or program. The term includes
public and private institutions of higher education, public and private
hospitals, and other quasi-public and private non-profit organizations
such as, but not limited to, community action agencies,
[[Page 100]]
research institutes, educational associations, and health centers. The
term shall include commercial organizations which are recipients,
subrecipients, or contractors or subcontractors of recipients or
subrecipients. The term does not include government-owned contractor-
operated facilities or research centers providing continued support for
mission-oriented, large-scale programs that are government-owned or
controlled, or are designated as federally-funded research and
development centers.
Research and development means all research activities, both basic
and applied, and all development activities that are supported at
universities, colleges, and other non-profit institutions. ``Research''
is defined as a systematic study directed toward fuller scientific
knowledge or understanding of the subject studied. ``Development'' is
the systematic use of knowledge and understanding gained from research
directed toward the production of useful materials, devices, systems, or
methods, including design and development of prototypes and processes.
The term research also includes activities involving the training of
individuals in research techniques where such activities utilize the
same facilities as other research and development activities and where
such activities are not included in the instruction function.
Small award means a grant or cooperative agreement not exceeding the
small purchase threshold fixed at 41 U.S.C. 403(11) (currently $25,000).
Subaward means an award of financial assistance in the form of
money, or property in lieu of money, made under an award by a recipient
to an eligible subrecipient or by a subrecipient to a lower tier
subrecipient. The term includes financial assistance when provided by
any legal agreement, even if the agreement is called a contract, but
does not include procurement of goods and services nor does it include
any form of assistance which is excluded from the definition of
``award'' above.
Subrecipient means the legal entity to which a subaward is made and
which is accountable to the recipient for the use of the funds provided.
The term may include foreign or international organizations (such as
agencies of the United Nations).
Supplies means all personal property excluding equipment, intangible
property, and debt instruments as defined in this section, and
inventions of a contractor conceived or first actually reduced to
practice in the performance of work under a funding agreement (``subject
inventions''), as defined in 37 CFR part 401, ``Rights to Inventions
Made by Nonprofit Organizations and Small Business Firms Under
Government Grants, Contracts, and Cooperative Agreements.''
Suspension means an action by DOE that temporarily withdraws DOE
sponsorship under an award, pending corrective action by the recipient
or pending a decision to terminate the award by the DOE. Suspension of
an award is a separate action from suspension under DOE regulations
implementing E.O.'s 12549 and 12689, ``Debarment and Suspension'' (see
10 CFR part 1036).
Termination means the cancellation of DOE sponsorship, in whole or
in part, under an agreement at any time prior to the date of completion.
Third party in-kind contributions means the value of non-cash
contributions provided by non-Federal third parties. Third party in-kind
contributions may be in the form of real property, equipment, supplies
and other expendable property, and the value of goods and services
directly benefiting and specifically identifiable to the project or
program.
Unliquidated obligations, for financial reports prepared on a cash
basis, means the amount of obligations incurred by the recipient that
have not been paid. For reports prepared on an accrued expenditure
basis, they represent the amount of obligations incurred by the
recipient for which an outlay has not been recorded.
Unobligated balance means the portion of the funds authorized by DOE
that has not been obligated by the recipient and is determined by
deducting the cumulative obligations from the cumulative funds
authorized.
Unrecovered indirect cost means the difference between the amount
awarded and the amount which could have been awarded under the
recipient's approved negotiated indirect cost rate.
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Working capital advance means a procedure whereby funds are advanced
to the recipient to cover its estimated disbursement needs for a given
initial period.
Sec. 600.102 Effect on other issuances.
For awards subject to this subpart, all administrative requirements
of codified program regulations, program manuals, handbooks and other
nonregulatory materials which are inconsistent with the requirements of
this subpart shall be superseded, except to the extent they are required
by statute, or authorized in accordance with the deviations provision in
Sec. 600.4.
Sec. 600.103 Deviations.
The deviation provisions of Sec. 600.4 apply to this subpart.
Sec. 600.104 Subawards.
Unless sections of this subpart specifically exclude subrecipients
from coverage, all DOE recipients, including State, local and Indian
tribal governments, shall apply the provisions of this subpart to
subrecipients performing work under awards if such subrecipients are
institutions of higher education, hospitals, or other non-profit
organizations organizations. Thus, this subpart is applicable to those
types of organizations regardless of the type of recipient receiving the
primary award. State and local government subrecipients are subject to
the provisions of 10 CFR part 600, subpart C, ``Uniform Administrative
Requirements for Grants and Cooperative Agreements to State and Local
Governments.'' For-profit subrecipients are subject to the provisions of
10 CFR part 600, subpart D, Administrative Requirements for Grants and
Cooperative Agreements with For-Profit Organizations.
[59 FR 53266, Oct. 21, 1994, as amended at 68 FR 50650, Aug. 21, 2003]
Pre-Award Requirements
Sec. 600.110 Purpose.
Sections 600.111 through 600.117 prescribe forms and instructions
and other pre-award matters to be used in applying for DOE awards.
Sec. 600.111 Pre-award policies.
(a) Use of Grants and Cooperative Agreements, and Contracts. In each
instance, the DOE shall decide on the appropriate award instrument
(i.e., grant, cooperative agreement, or contract). The Federal Grant and
Cooperative Agreement Act (31 U.S.C. 6301-08) governs the use of grants,
cooperative agreements and contracts. A grant or cooperative agreement
shall be used only when the principal purpose of a transaction is to
accomplish a public purpose of support or stimulation authorized by
Federal statute. The statutory criterion for choosing between grants and
cooperative agreements is that for the latter, ``substantial involvement
is expected between the executive agency and the State, local
government, or other recipient when carrying out the activity
contemplated in the agreement.'' Contracts shall be used when the
principal purpose is acquisition of property or services for the direct
benefit or use of the Federal Government.
(b) Public Notice and Priority Setting. DOE will, whenever
practical, notify the public of its intended funding priorities for
discretionary grant programs, unless funding priorities are established
by Federal statute.
Sec. 600.112 Forms for applying for Federal assistance.
(a) General. An application for an award shall be on the form or in
the format specified in a program rule or in the funding opportunity
announcement. When a version of the Standard Form 424 is not used, DOE
shall indicate whether the application is subject to review by the State
under Executive Order 12372.
(b) Budgetary information. DOE may request and the applicant shall
submit the minimum budgetary information necessary to evaluate the costs
of the proposed project.
(c) DOE may, subsequent to receipt of an application, request
additional information from an applicant when necessary for
clarification or to make informed preaward determinations.
(d) Continuation and renewal applications. DOE may require that an
application for a continuation or renewal award be made in the format or
on the
[[Page 102]]
forms authorized by paragraphs (a) and (b) of this section.
[74 FR 44278, Aug. 28, 2009]
Sec. 600.113 Debarment and suspension.
Recipients shall comply with the nonprocurement debarment and
suspension common rule implementing E.O.'s 12549 and 12689, ``Debarment
and Suspension,'' 2 CFR 180 and 901. This common rule restricts
subawards and contracts with certain parties that are debarred,
suspended or otherwise excluded from or ineligible for participation in
Federal assistance programs or activities.
[59 FR 53266, Oct. 21, 1994, as amended at 74 FR 44278, Aug. 28, 2009]
Sec. 600.114 Special award conditions.
(a) If an applicant or recipient has a history of poor performance,
is not financially stable, has a management system that does not meet
the standards prescribed in this subpart, has not conformed to the terms
and conditions of a previous award, or is not otherwise responsible, DOE
may impose additional requirements as needed, without regard to the
deviation provisions of Sec. 600.4. Such applicant or recipient will be
notified in writing as to the nature of the additional requirements, the
reason why the additional requirements are being imposed, the nature of
the corrective action needed, and the time allowed for completing the
corrective actions. Reconsideration of the additional requirements may
be requested at any time. Any special conditions shall be promptly
removed once the conditions that prompted them have been corrected.
(b) A recipient may place a special restrictive condition, as
specified in paragraph (a) of this section, in a subaward. In any such
case, the recipient must notify DOE in writing within 15 days of the
subaward. DOE shall decide whether to notify OMB and other interested
parties.
Sec. 600.115 Metric system of measurement.
The Metric Conversion Act, as amended by the Omnibus Trade and
Competitiveness Act (15 U.S.C. 205) declares that the metric system is
the preferred measurement system for U.S. trade and commerce. The Act
requires each Federal agency to establish a date or dates in
consultation with the Secretary of Commerce, when the metric system of
measurement will be used in the agency's procurements, grants, and other
business-related activities. Metric implementation may take longer where
the use of the system is initially impractical or likely to cause
significant inefficiencies in the accomplishment of federally-funded
activities. DOE will follow the provisions of E.O. 12770, ``Metric Usage
in Federal Government Programs.''
Sec. 600.116 Resource Conservation and Recovery Act.
Under the Act (Pub. L. 94-580 codified at 42 U.S.C. 6962), any State
agency or agency of a political subdivision of a State which is using
appropriated Federal funds must comply with section 6002. Section 6002
requires that preference be given in procurement programs to the
purchase of specific products containing recycled materials identified
in guidelines developed by the Environmental Protection Agency (EPA) (40
CFR parts 247-254). Accordingly, State and local institutions of higher
education, hospitals, and non-profit organizations that receive direct
Federal awards or other Federal funds shall give preference in their
procurement programs funded with Federal funds to the purchase of
recycled products pursuant to the EPA guidelines.
Sec. 600.117 [Reserved]
Post-Award Requirements
Financial and Program Management
Sec. 600.120 Purpose of financial and program management.
Sections 600.121 through 600.128 prescribe standards for financial
management systems, methods for making payments and rules for satisfying
cost sharing and matching requirements, accounting for program income,
budget revision approvals, making audits, determining allowability of
cost, and establishing fund availability.
[[Page 103]]
Sec. 600.121 Standards for financial management systems.
(a) Recipients shall relate financial data to performance data and
develop unit cost information whenever practical. For awards that
support research, it should be noted that it is generally not
appropriate to develop unit cost information.
(b) Except for the provisions of 600.121(f) and 600.181, recipients'
financial management systems shall provide for the following:
(1) Accurate, current and complete disclosure of the financial
results of each federally-sponsored project or program in accordance
with the reporting requirements set forth in Sec. 600.152. If a DOE
award requires reporting on an accrual basis from a recipient that
maintains its records on other than an accrual basis, the recipient
shall not be required to establish an accrual accounting system. These
recipients may develop such accrual data for their reports on the basis
of an analysis of the documentation on hand.
(2) Records that identify adequately the source and application of
funds for federally-sponsored activities. These records shall contain
information pertaining to Federal awards, authorizations, obligations,
unobligated balances, assets, outlays, income and interest.
(3) Effective control over and accountability for all funds,
property and other assets. Recipients shall adequately safeguard all
such assets and assure they are used solely for authorized purposes.
(4) Comparison of outlays with budget amounts for each award.
Whenever appropriate, financial information should be related to
performance and unit cost data. As discussed in paragraph (a) of this
section, unit cost data is generally not appropriate for awards that
support research.
(5) Written procedures to minimize the time elapsing between the
transfer of funds to the recipient from the U.S. Treasury and the
issuance or redemption of checks, warrants or payments by other means
for program purposes by the recipient. To the extent that the provisions
of the Cash Management Improvement Act (CMIA) (Pub. L. 101-453) govern,
payment methods of State agencies, instrumentalities, and fiscal agents
shall be consistent with CMIA Treasury-State Agreements or the CMIA
default procedures codified at 31 CFR part 205, ``Withdrawal of Cash
from the Treasury for Advances under Federal Grant and Other Programs.''
(6) Written procedures for determining the reasonableness,
allocability and allowability of costs in accordance with the provisions
of the applicable Federal cost principles and the terms and conditions
of the award.
(7) Accounting records including cost accounting records that are
supported by source documentation.
(c) Where the Federal Government guarantees or insures the repayment
of money borrowed by the recipient, the Contracting Officer, at his or
her discretion, may require adequate bonding and insurance if the
bonding and insurance requirements of the recipient are not deemed
adequate to protect the interest of the Federal Government.
(d) The Contracting Officer may require adequate fidelity bond
coverage where the recipient lacks sufficient coverage to protect the
Federal Government's interest.
(e) Where bonds are required in the situations described in
Sec. Sec. 600.121 (c) and (d), the bonds shall be obtained from
companies holding certificates of authority as acceptable sureties, as
prescribed in 31 CFR part 223, ``Surety Companies Doing Business with
the United States.''
(f) Individuals whose financial management systems do not meet the
minimum standards of Sec. 600.121 (b) shall maintain a separate bank
account for deposit of award or subaward funds. Disbursements by the
recipient or subrecipient from this account shall be supported by source
documentation such as canceled checks, paid bills, receipts, payrolls,
etc.