[Federal Register Volume 60, Number 54 (Tuesday, March 21, 1995)]
[Rules and Regulations]
[Pages 15015-15017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6798]



=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

10 CFR Parts 430, 765, and 766


Payments Equal to Taxes Provisions of the Nuclear Waste Policy 
Act of 1982, As Amended, Interpretation and Procedures

AGENCY: Office of Hearings and Appeals, DOE.

ACTION: Final rule; technical amendments.

----------------------------------------------------------------------- 
[[Page 15016]] 

SUMMARY: The Department is amending four rules which provide for 
adjudications by the Office of Hearings and Appeals (OHA), in order to 
conform them to OHA procedural regulations contained in a new part 1003 
of chapter X, being published elsewhere in this issue of the Federal 
Register. This change of procedural references will not substantively 
affect the remedies provided under those rules. The Department is also 
amending certain rules to make clear its original intent that an appeal 
must be taken with OHA in order to exhaust administrative remedies.

EFFECTIVE DATE: These rules become effective April 20, 1995.

FOR FURTHER INFORMATION CONTACT: Roger Klurfeld, Assistant Director, 
Office of Hearings and Appeals, U.S. Department of Energy, 1000 
Independence Avenue, SW., Washington, DC 20585, Telephone: 202-586-
2383, Internet: [email protected].

SUPPLEMENTARY INFORMATION: OHA is a quasi-judicial body reporting to 
the Secretary of Energy. It is responsible for conducting most informal 
adjudicative proceedings of DOE where there is provision for separation 
of functions, other than those which are subject to the jurisdiction of 
the Federal Energy Regulatory Commission. Until today, procedural 
regulations governing OHA practice appeared mainly in part 205 of title 
10 of the Code of Federal Regulations. Part 205, however, was designed 
to apply to matters involving the former oil price and allocation 
control regulations which were in effect during the period 1973 through 
January 1981. Because those oil-related proceedings are winding down, 
and the OHA is conducting a variety of other informal adjudications for 
the Department, the OHA procedural regulations have been organized as a 
new part 1003 within chapter X of title 10, which contains the general 
provisions of DOE regulations. Part 205 will continue to be used only 
to adjudicate matters which relate specifically to the federal oil 
regulations, while new part 1003 will be used for adjudicating most 
other matters within OHA's jurisdiction.
    The procedures codified in part 1003 become applicable where 
program rules specifically reference them and state that a member of 
the public can make a request for relief under these rules. Four 
program rules or regulations currently reference part 205 procedures 
where the new part 1003 procedures would be more appropriate. 
Accordingly, DOE hereby is updating those references as follows. Until 
today, the program regulations that the Department promulgated in the 
Energy Conservation Program for Consumer Products, 10 CFR part 430, 
have stated that any person receiving an order may file an appeal with 
OHA using that office's appellate rules provided in 10 CFR part 205, 
subpart H. See 10 CFR 430.27(n). This provision is updated to reference 
the new appeals procedure in 10 CFR part 1003, subpart C. The same 
change is made in program regulations contained in 10 CFR part 765 
(Reimbursement for Costs of Remedial Action at Active Uranium and 
Thorium Processing Sites) and 10 CFR part 766 (Uranium Enrichment 
Decontamination and Decommissioning Fund; Procedures for Special 
Assessment of Domestic Utilities). See 10 CFR 765.22(b) and 10 CFR 
766.104(d). Finally, the Department stated in implementing the 
Payments-Equal-to-Taxes (PETT) provisions of the Nuclear Waste Policy 
Act of 1982, as amended, that an entity may file an appeal with OHA of 
a DOE PETT determination using the OHA's 10 CFR part 205, subpart H 
appellate rules. See Payments-Equal-To-Taxes Provisions of the Nuclear 
Waste Policy Act of 1982, as Amended, Interpretation and Procedures, as 
published in the Federal Register on August 27, 1991 (56 FR 42314). The 
reference on page 42319, column 2, of that notice to ``10 CFR part 205 
subpart H'' is hereby changed to ``10 CFR part 1003, subpart C.'' 
Therefore, persons following procedures for the PETT provisions should 
now refer to 10 CFR part 1003, subpart C.
    The procedural rules contained in the new 10 CFR part 1003, subpart 
C, correspond to nearly identical procedural rules contained in 
previously applicable 10 CFR part 205, subpart H. Thus, the foregoing 
conforming amendments adopted today merely change the procedural 
references and do not substantively affect the remedies available to 
aggrieved parties under the affected program rules.
    It has always been the intent of DOE to require parties to pursue 
an administrative appeal prior to seeking judicial review. The Supreme 
Court has interpreted section 10(c) of the Administrative Procedure Act 
(APA) (5 U.S.C. 704) to provide that, with respect to actions brought 
under the APA, an administrative appeal is a prerequisite to judicial 
review only when expressly required by statute or when an agency rule 
requires appeal before review and the administrative action is made 
inoperative pending that review. Darby v. Cisneros, 113 S. Ct. 2539, 
125 L. Ed. 2d 113 (1993). Accordingly, the Department is also amending 
two program rules to make clear its original intent that a person who 
receives an order from program officials must file an appeal with OHA 
and await the issuance of an order granting or denying the appeal in 
order to exhaust administrative remedies. The two programs are 10 CFR 
part 430 regarding consumer products and PETT determinations under the 
Nuclear Waste Policy Act of 1982. With respect to the rule on PETT 
determinations, as published in the Federal Register on August 27, 1991 
(56 FR 42314), the phrase on page 42319, column 2, that ``Appeals may 
be filed with the Office of Hearings and Appeals (OHA)'' is modified to 
read ``In order to exhaust administrative remedies, appeals must be 
filed with the Office of Hearings and Appeals (OHA)''.1 The 
specific changes to part 430 are set forth later in this notice.

    \1\The affected provision in the PETT rule, with all changes 
made today, now reads:
    D. Appeals Process
    An appeals process is available for those jurisdictions which 
are challenging the original DOE determination related to PETT. In 
order to exhaust administrative remedies, appeals must be filed with 
the Office of Hearings and Appeals (OHA), U.S. Department of Energy, 
1000 Independence Avenue, SW., Washington, DC 20585. The appeal must 
be filed within 45 days from the date of issuance of an original DOE 
determination related to PETT. Appeals will be governed by 
procedures set forth in 10 CFR part 1003, subpart C. [56 FR at 
42319.]
---------------------------------------------------------------------------

    Finally, a slight, nonsubstantive stylistic change is made in part 
765.

List of Subjects

10 CFR Part 430

    Administrative Practice and Procedure, Energy Conservation, 
Household Appliances.

10 CFR Part 765

    Radioactive materials, Reclamation, Reporting and recordkeeping 
requirements, Uranium.

10 CFR Part 766

    Confidential Business Information, Electric Power Rates, Electric 
Utilities, Nuclear Materials, Radioactive Materials, Reclamation, 
Reporting and Recordkeeping Requirements, Uranium, Waste Treatment and 
Disposal.

    Issued in Washington, DC on March 14, 1995.
George B. Breznay,
Director, Office of Hearings and Appeals.

    For the reasons set forth in the preamble, 10 CFR parts 430, 765 
and 766 are amended as set forth below: [[Page 15017]] 

PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS

    1. The authority citation for part 430 continues to read as 
follows:

    Authority: 42 U.S.C. 6291-6309.


Sec. 430.27  [Amended]

    2. Section 430.27(n) is amended by adding at the beginning of the 
paragraph the phrase ``In order to exhaust administrative remedies,'', 
by revising the word ``may'' to read ``must'', and by revising the 
reference to ``10 CFR part 205, subpart H'' to read ``10 CFR part 1003, 
subpart C''.

PART 765--REIMBURSEMENT FOR COSTS OF REMEDIAL ACTION AT ACTIVE 
URANIUM AND THORIUM PROCESSING SITES

    3. The authority citation for part 765 continues to read as 
follows:

    Authority: Sections 1001-1004 of Pub. L. No. 102-486, 106 Stat. 
2776 (42 U.S.C. 2296a et seq.)

    4. Section 765.22(b) (third sentence) is revised to read as 
follows:


Sec. 765.22  Appeals procedures.

    (a) * * * 
    (b) * * * Appeals must comply with the procedures set forth in 10 
CFR part 1003, subpart C. * * *

PART 766--URANIUM ENRICHMENT DECONTAMINATION AND DECOMMISSIONING 
FUND; PROCEDURES FOR SPECIAL ASSESSMENT OF DOMESTIC UTILITIES

    5. The authority citation for part 766 continues to read as 
follows:

    Authority: 42 U.S.C. 2201, 2297g, 2297g-1, 2297g-2, 7254.


Sec. 766.104  [Amended]

    6. Section 766.104(d) (second sentence) is amended by revising ``10 
CFR part 205, subpart H'' to read ``10 CFR part 1003, subpart C''.

[FR Doc. 95-6798 Filed 3-20-95; 8:45 am]
BILLING CODE 6450-01-P