[Federal Register Volume 84, Number 158 (Thursday, August 15, 2019)]
[Proposed Rules]
[Pages 41654-41664]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17207]


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DEPARTMENT OF ENERGY

10 CFR Part 1003

[DOE-OHA-2019-0024]
RIN 1903-AA10


Revisions to the Office of Hearings and Appeals Procedural 
Regulations

AGENCY: Office of Hearings and Appeals, Department of Energy.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Office of Hearings and Appeals Procedural Regulations set 
forth the default procedures for appearance and practice before the 
Office of Hearings and Appeals (OHA), the quasi-judicial branch of the 
Department of Energy (DOE). The procedures set forth in this regulation 
apply to all proceedings before OHA

[[Page 41655]]

where a comprehensive procedural scheme is not found in another DOE 
regulation. The OHA proposes to simplify and modernize its procedures.

DATES: Comments are due by September 16, 2019.

ADDRESSES: Inquiries should be sent to the Office of Hearings and 
Appeals, U.S. Department of Energy, 1000 Independence Ave. SW, 
Washington, DC 20585-0107, (202) 287-1550, Email: 
[email protected]. Comments must identify the Notice of 
Proposed Rulemaking for the Office of Hearings and Appeals Procedural 
Regulations. Comments may be submitted using any of the following 
methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov/docket?D=DOE-OHA-2019-0024. Follow the instructions for submitting 
comments.
    2. Email: [email protected].

FOR FURTHER INFORMATION CONTACT: Kristin L. Martin, Attorney-Advisor, 
Office of Hearings and Appeals, U.S. Department of Energy, 1000 
Independence Ave. SW, Washington, DC 20585-0107, (202) 287-1550, Email: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Regulatory History

    Part 1003 was promulgated in 1995 to replace 10 CFR part 205, a 
procedural regulation designed to apply to matters involving the former 
oil price and allocation control regulations effective during the 
1970s. As the oil price and allocation control program wound down, the 
OHA's jurisdiction expanded to include other programs. Part 1003 was 
intended to apply to most proceedings before the OHA that did not 
involve the former federal petroleum price and allocation control 
regulations. Namely, part 1003 contained a number of subparts that set 
forth procedures specific to the following types of proceedings: 
Requests for exceptions or exemptions from DOE rules, appeals of DOE 
orders, applications for stays, applications for modification or 
revision of DOE orders, requests for OHA conferences and hearings, and 
requests for special redress relief or other extraordinary assistance.
    Since 1995, the OHA's jurisdictional portfolio has changed 
significantly, shifting away from petroleum product refund proceedings 
to include primarily personnel security hearings, Freedom of 
Information Act appeals, and proceedings under the DOE's Contractor 
Employee Whistleblower Protection Program. Most of the proceedings that 
OHA oversees currently are governed by their own procedural regulations 
and are not subject to the procedures found in part 1003. As the nature 
of the OHA's work has evolved and technology has improved, the 
procedures set forth in part 1003 have become more cumbersome and less 
effective. Part 1003 proceedings involve fewer parties, few to no 
hearings, and fewer stakeholders than other types of OHA proceedings. 
In addition, Part 1003 mandates outdated methods of communication that 
are far less efficient than modern methods. Accordingly, the OHA has 
decided to propose revisions to part 1003 as described in Section II.

II. Summary of Proposed Revisions

    The OHA is proposing a number of updates to part 1003. 
Specifically, the OHA seeks to eliminate the subparts specific to 
individual types of proceedings and to consolidate those procedures in 
a single part with general applicability. The new consolidated 
procedures would govern all proceedings before OHA where a 
comprehensive procedural scheme is not found in another DOE regulation, 
including appeals of DOE orders, requests for exceptions or exemptions 
from DOE rules, and requests for modification or rescission of DOE 
orders. This proposal is intended to simplify and streamline the 
procedures for appearing before the OHA, and to reduce cost and 
administrative burdens for parties.

A. Methods of Communication and Disclosure

    In executing its duties under the revised part 1003, the OHA 
intends to make use of the regulations.gov federal portal. Currently, 
except in unusual circumstances, all documents submitted in exception 
relief proceedings are posted to an e-docket on that website and are 
available for public comment through the website as well. The OHA would 
expand this practice to all proceedings conducted under part 1003. In 
addition, OHA proposes to eliminate requirements that communications 
and disclosures under part 1003 be transmitted by any one particular 
method, allowing for greater flexibility as technology changes. For 
instance, the proposed revisions do not mandate a particular method by 
which service must be carried out, and the OHA may allow service by a 
method other than those specified in the regulation.

B. Sec.  1003.1 Purpose and Scope

    1. Applicability to Other Regulations. The OHA proposes to clarify 
that part 1003's procedures are not applicable to proceedings that are 
subject to specific and comprehensive procedural schemes found in other 
parts of DOE's regulations. Examples of regulations with comprehensive 
adjudicative procedures include 10 CFR parts 708, 710, 712, and 1004.
    2. Elimination of Subparts. The OHA proposes to consolidate 
subparts B through G of the current part 1003 into a single part. Each 
of subparts B through G in the current part 1003 sets forth procedures 
for a different type of proceeding, such as stay proceedings, appeal 
proceedings, and exception relief proceedings. Many of the procedures 
contained in these subparts--such as the procedures for filing a 
petition and providing notice to interested persons--are duplicative. 
The primary area where the subparts differ is in their descriptions of 
the legal standards applicable to each type of proceeding. Thus, the 
OHA believes that consolidation of the subparts--while still 
differentiating the legal standards specific to each type of 
proceeding--would simplify litigation before the OHA and make part 1003 
more accessible to pro se parties.
    Multiple parts of DOE's regulations make reference to subparts B 
through G as they appear in the current part 1003. With the proposed 
consolidation of the subparts, rather than attempt to identify and 
amend each and every reference throughout all of DOE's regulations, the 
OHA proposes to add Sec.  1003.1(b), which clarifies that all such 
references shall be considered to refer to part 1003 generally, rather 
than to a specific subpart. For example, DOE's Energy Conservation 
Program for Consumer Products, at 10 CFR part 430, states, ``To exhaust 
administrative remedies, any person aggrieved by an action under this 
section must file an appeal with the DOE's Office of Hearings and 
Appeals as provided in 10 CFR part 1003, subpart C.'' 10 CFR 430.27(m). 
Under the proposed part 1003, subpart C would not exist, but in 
accordance with proposed Sec.  1003.1(b), the general procedures 
contained in part 1003 would still apply to the appeals process 
required by Sec.  430.27(m).

C. Sec.  1003.2 Definitions

    1. The OHA proposes to add a definition of ``Alternative Dispute 
Resolution'' (ADR). The OHA is proposing to add a provision to the 
regulation encouraging ADR and an explicit definition is necessary for 
clarity.
    2. As part of its effort to consolidate the multiple iterations of 
procedures contained in the current part 1003 into a single procedure, 
the OHA proposes to use the term ``petition'' to refer to all initial 
filings in all proceedings governed by part 1003. A petition could

[[Page 41656]]

be an appeal, an application for exception, or another type of filing 
that initiates a proceeding before OHA. Use of the single term 
``petition'' is intended to increase the clarity and accessibility of 
part 1003. Similarly, any person who files an initial submission with 
the OHA would be called a ``petitioner'' for purposes of the 
regulation. However, in practice, the person could still be referred to 
as an appellant, applicant, or other appropriate designation.
    3. The OHA proposes to define ``verified email address,'' a new 
term created to assist with electronic notice and filing.
    4. The OHA proposes to define the terms ``action,'' ``Decision and 
Order,'' ``final disposition of DOE,'' ``party,'' and ``participant.'' 
Defining these terms will allow for greater precision and specificity 
in language and will reduce ambiguity in the regulation.

D. Sec.  1003.6 Service

    The OHA proposes to allow for methods of service other than the 
U.S. Mail. Specifically, the OHA proposes to allow service via email. 
This would increase efficiency and reduce costs for parties. The OHA 
also proposes to allow for service via unspecified alternative methods, 
allowing for flexibility as communications technology evolves. For 
example, a petitioner could request that the OHA allow him to send a 
link to the e-docket on the regulations.gov federal portal in lieu of 
sending copies of the documents.

E. Sec.  1003.9 Method of Submission of Petitions, Documents, and Other 
Materials

    The OHA proposes to mandate that all documents filed with the OHA 
be filed electronically, except when permission is granted to file in 
another manner. Electronic filing is faster, more reliable, and more 
cost-efficient than paper filing. It also coordinates with DOE 
electronic records retention methods. However, not everyone can file 
electronically, and some materials are better mailed or faxed for 
logistical reasons. Accordingly, any person wishing to file via non-
electronic means could contact the OHA and request permission to do so. 
The OHA would consider granting such requests in circumstances where 
good cause has been shown why the document cannot or should not be 
filed electronically.

F. Sec.  1003.11 Filing a Petition

    The consolidated procedures proposed by the OHA would be initiated 
by the filing of a petition by a person who believes he has been 
adversely affected by a DOE decision or action, or who is otherwise 
authorized by law.
    1. Form and Elements of a Petition. The proposed revisions contain 
requirements for the form and elements of a petition. While the 
proposed form is substantially similar to the form of like filings 
under the current regulation, the proposed elements are more specific 
and comprehensive and are intended to reduce the need for information 
requests from the OHA. Under the current regulation, the required 
contents of a filing are often insufficient for the OHA to determine 
the relief sought, the circumstances the filer believes warrant relief, 
and the factual and legal justifications for relief. By requiring such 
information in the initial filing, the proposed regulation would ensure 
that petitions give the OHA a clearer picture of what the petitioner is 
seeking and why, thereby streamlining the initial phases of the 
proceeding. The OHA believes that this change has the potential to 
reduce its time to decision by weeks or, in some cases, months.
    2. Motions for Stay. The OHA also proposes to require that motions 
for a stay be filed at the same time as petitions. A stay is a type of 
order that has the effect of pausing a legal process, such as a 
proceeding or order. Unlike under the current part 1003, where the 
procedure for requesting a stay is set forth in its own subpart, 
subpart D, the consolidated procedures the OHA proposes in this 
proposed rulemaking do not apply to requests for stays. Under the 
proposed part 1003, the OHA would issue stays as interlocutory orders, 
rather than as Decisions and Orders. This treatment mirrors that of the 
federal courts and is logical in the sense that a stay is nearly always 
incidental to a substantive proceeding. The legal standard for 
consideration of stay requests is outlined in previous OHA decisions, 
which have precedential authority. Motions and interlocutory orders 
would be posted to the e-docket, allowing the public an opportunity to 
comment.
    The requirement that a motion for a stay be filed concurrently with 
a petition would serve to streamline proceedings by giving early notice 
to the OHA, DOE as a whole, and potentially aggrieved or interested 
parties that a stay is being sought. However, if a petitioner can show 
good cause as to why it should be able to file a motion for stay later, 
the proposed revisions would allow the OHA the flexibility to fairly 
address the situation.

G. Sec.  1003.12 Notice

    The OHA proposes to allow notice via electronic or other means. 
Part 1003 was created before electronic communication was common and, 
as email became ubiquitous over time, the specific requirement that 
notice be served through the U.S. Mail has created unnecessary burdens, 
both administrative and financial, for litigants. The proposed 
revisions would allow for greater flexibility in notice requirements so 
that litigants would not be forced to use a single method of 
communication after it becomes outdated. Additionally, the proposed 
revisions would allow the OHA to require additional or alternative 
notice if the standard provisions prove ineffective or overly 
burdensome.

H. Sec.  1003.13 Alternative Dispute Resolution

    The OHA proposes to add a section encouraging the use of 
Alternative Dispute Resolution. This reflects DOE's policy toward 
dispute resolution, while underscoring the benefits of the process.

I. Sec.  1003.14 Evaluation of Petitions

    1. Timing. The OHA proposes to impose time limits, mandatory 
communication with litigants, and procedural guidelines on its 
evaluation of petitions. These changes are designed to provide 
litigants with increased guidance and certainty regarding when they 
will receive a decision and how that decision will be reached.
    2. Conduct of the Proceedings. The OHA proposes to specify that the 
OHA Director has the judicial powers necessary to conduct proceedings, 
including, but not limited to, granting or denying motions and entering 
interlocutory orders. This provision would allow the OHA Director to 
exercise the full range of judicial powers--even those not specified in 
the regulation--that are necessary to ensure a fair and full evaluation 
of the petition. For example, while discovery is not typically a part 
of part 1003 proceedings, it may be ordered by the OHA Director in 
certain cases where appropriate.
    3. Hearings. The majority of proceedings brought under Part 1003 in 
the last several years have not required a hearing. Through use of the 
regulations.gov rulemaking portal, interested parties can comment on 
proceedings at length without having to travel to a hearing to put 
their concerns on the record. Accordingly, the OHA proposes to 
eliminate the subpart on hearings--current subpart F--and insert a new 
section outlining the criteria used to determine whether a hearing 
should be conducted. Nothing in this proposed regulation prohibits a 
party from requesting a hearing.

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J. Sec.  1003.15 Subpoenas, Information Requests, Oaths, Witnesses

    1. The OHA proposes to change the term ``Special Report Order'' to 
``information request,'' which the OHA considers a more accurate 
description of the tool used by the OHA to elicit information related 
to a proceeding.
    2. The OHA proposes to add standards for oaths or affirmations. The 
oath or affirmation must now refer the witness to federal statutes 
describing penalties for perjury and falsification.
    The OHA understands 18 U.S.C. 1001 and 18 U.S.C. 1621 to apply to 
all statements and submissions to the OHA, whether oral or written. 
Therefore, the OHA proposes to remove duplicative references to these 
statutes from the regulation.

K. Sec.  1003.16 Dismissal of Petitions

    The OHA proposes to expand upon and codify the circumstances under 
which it may dismiss petitions. The proposed revisions separate 
dismissals into two categories: Dismissal with prejudice and dismissal 
without prejudice. A dismissal is considered a Decision and Order.
    Dismissal with prejudice ends a proceeding and precludes the 
petitioner from bringing the same petition again. This is appropriate 
when circumstances argue that further legal proceedings would be 
inappropriate or duplicative. The proposed reasons for dismissal with 
prejudice relate primarily to justiciability issues (such as mootness) 
and substantial, willful noncompliance with procedures (such as 
provision of false statements under oath or refusal to comply with an 
OHA order).
    Dismissal without prejudice ends a proceeding without precluding 
the petitioner from filing another petition with regard to the same 
subject matter. The proposed reasons for dismissal without prejudice 
relate primarily to technical and procedural errors by the petitioner--
such as failure to include a required element of the petition or 
failure to timely provide information at the OHA's request. The 
proposed reasons for dismissal without prejudice also include the 
petitioner's failure to state a claim upon which the OHA can grant 
relief. This is analogous to dismissal under Federal Rule of Civil 
Procedure 12(b)(6), and the OHA applies the same legal standard used by 
federal courts to determine whether a petitioner has failed to state a 
claim upon which relief can be granted. Finally, the proposed reasons 
for dismissal without prejudice also include circumstances in which the 
OHA does not have enough information to make a decision. Dismissal 
under these circumstances allows the OHA to avoid making an uninformed 
decision.

L. Sec.  1003.17 Standard of Review

    The OHA proposes a default standard of review for petitions not 
otherwise governed by an authority that prescribes a standard of 
review. The proposed standard is similar to the standard set forth in 
the current Sec.  1003.36(c). A petitioner that seeks relief from an 
action of the DOE must show that the DOE acted arbitrarily, 
capriciously, or in violation of law, rule, regulation, or delegation. 
Under this standard, the OHA would pay deference to the subject matter 
expertise of the DOE component whose action is under review, while at 
the same time ensuring that such component acted legally and with 
appropriate consideration.
    The OHA's standard of review for petitions filed under the 
authority of 42 U.S.C. 7194 will continue to include a consideration of 
whether the petitioner has made a showing of serious hardship, gross 
inequity or unfair distribution of burdens.

M. Sec.  1003.18 Decision and Order

    The OHA proposes to require that a decision granting or denying the 
relief sought by a petitioner be presented in a particular format, 
referred to as a Decision and Order. The Decision and Order would 
include the legal and factual basis for the decision, state whether it 
is the DOE's final agency action on the matter, and state what review 
is available to the parties.
    The OHA proposes that there be no administrative appeal of a 
Decision and Order, except as provided by federal statute. This 
proposal stems from logistical necessity. Decisions under part 1003 are 
issued by the OHA Director. There is no higher authority in the OHA to 
which a person could appeal. Furthermore, as the OHA's jurisdiction 
under part 1003 is almost entirely delegated from the Secretary of 
Energy, there is no other entity within the DOE with authority to make 
decisions or hear appeals on such matters.

N. Sec.  1003.19 Reconsideration

    The OHA proposes to allow for reconsideration of a Decision and 
Order if the motion to do so is filed by the 20th day after the 
Decision and Order is made available to the public. The Director would 
grant a motion for reconsideration only if he determines that the 
Decision and Order contains an error that materially influenced the 
proceeding's outcome.

III. Public Comment Procedures

    Interested persons are invited to participate in this rulemaking 
proceeding by submitting data, views, or arguments. Written comments 
should be submitted to the address, and in the form, indicated in the 
ADDRESSES section of this notice of proposed rulemaking. To assist in 
DOE's review of the comments, interested persons are asked to refer to 
specific proposed rule provisions, if possible.
    If you submit information that you believe to be exempt by law from 
public disclosure, you should submit one complete copy, as well as one 
copy from which the information requested to be exempt by law from 
public disclosure has been redacted. DOE is responsible for the final 
determination regarding disclosure or nondisclosure of the information, 
and for treating information appropriately under the Freedom of 
Information Act and DOE implementing regulations at 10 CFR part 1004.

IV. Regulatory Review

A. Executive Order 12866

    It was determined that this action is not a significant regulatory 
action subject to review under Executive Order 12866, ``Regulatory 
Planning and Review,'' 58 FR 51735 (Oct. 4, 1993) by the Office of 
Information and Regulatory Affairs (OIRA) of the Office of Management 
and Budget (OMB).

B. Executive Orders 13771, and 13777

    On January 30, 2017, the President issued Executive Order 13771, 
``Reducing Regulation and Controlling Regulatory Costs.'' That Order 
stated the policy of the executive branch is to be prudent and 
financially responsible in the expenditure of funds from both public 
and private sources. The Order stated it is essential to manage the 
costs associated with the governmental imposition of private 
expenditures required to comply with Federal regulations.
    Additionally, on February 24, 2017, the President issued Executive 
Order 13777, ``Enforcing the Regulatory Reform Agenda.'' The Order 
required that the head of each agency designate an agency official as 
its Regulatory Reform Officer (RRO). Each RRO oversees the 
implementation of regulatory reform initiatives and policies to ensure 
that agencies effectively carry out regulatory reforms, consistent with 
applicable law. Further, E.O. 13777 requires the establishment of a 
regulatory task force at each agency. The regulatory task force is 
required to make recommendations to the agency

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head regarding the repeal, replacement, or modification of existing 
regulations, consistent with applicable law. At a minimum, each 
regulatory reform task force must attempt to identify regulations that:
    (i) Eliminate jobs, or inhibit job creation;
    (ii) Are outdated, unnecessary, or ineffective;
    (iii) Impose costs that exceed benefits;
    (iv) Create a serious inconsistency or otherwise interfere with 
regulatory reform initiatives and policies;
    (v) Are inconsistent with the requirements of Information Quality 
Act, or the guidance issued pursuant to that Act, in particular those 
regulations that rely in whole or in part on data, information, or 
methods that are not publicly available or that are insufficiently 
transparent to meet the standard for reproducibility; or
    (vi) Derive from or implement Executive Orders or other 
Presidential directives that have been subsequently rescinded or 
substantially modified.
    Pursuant to OMB's Guidance Implementing Executive Order 13771, 
titled ``Reducing Regulation and Controlling Regulatory Costs (April 5, 
2017), this action does not constitute an ``E.O. 13771 regulatory 
action'' because it does not meet the E.O. 12866 definition of a 
significant regulatory action. DOE determined, however, that this 
action furthers the policy goals outlined in Executive Order 13777, 
``Enforcing the Regulatory Reform Agenda,'' which encourages the 
repeal, replacement, or modification of existing regulations that, 
among other things, are outdated, unnecessary, or ineffective. Prior to 
this action, Part 1003 was outdated, repetitive, and, in some sections, 
inefficient. Certain provisions, particularly the requirement that 
notice be served via U.S. Mail, had become onerous for regulated 
parties. This action clarifies the regulation's language, streamlines 
the proceedings, and removes burdensome requirements. This should 
result in increased time and resource savings for litigants and DOE.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that, by law, must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process (68 FR 7990). DOE has made its 
procedures and policies available on the Office of General Counsel's 
website: http://www.gc.doe.gov.
    DOE has reviewed this proposed rule under the provisions of the 
Regulatory Flexibility Act and the procedures and policies published on 
February 19, 2003. This proposed rule would simplify procedural rules 
primarily for litigants and reduce the financial and administrative 
burdens involved in bringing cases before the OHA. DOE has determined 
that the proposed rule, if adopted, would not result in a significant 
economic impact on a substantial number of small entities because the 
revisions are specifically designed to ease and reduce the obligations 
of litigants. For example, allowing service via email and other 
electronic methods significantly reduces the time and expense of 
bringing a 1003 proceeding for petitioners, most of whom are 
corporations and small businesses. Moving the public reference room 
from a physical location in Washington, DC, to an online location makes 
research far easier for litigants outside the Capital region. In making 
changes such as the ones mentioned here and described elsewhere in the 
preamble, the OHA has not added new burdens on participants in part 
1003 proceedings, resulting in a net decrease in burdens.
    DOE will provide its certification and supporting statement of 
factual basis to the Chief Counsel for Advocacy of the Small Business 
Administration for review under 5 U.S.C. 605(b).

D. The Paperwork Reduction Act of 1995

    The proposed changes to part 1003 do not contain information 
collection requirements subject to review and approval by OMB under the 
Paperwork Reduction Act.

E. The Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
requires Federal agencies to examine closely the impacts of regulatory 
actions on State, local, and tribal governments. Section 101(5) of 
Title I of that law defines a Federal intergovernmental mandate to 
include any regulation that would impose upon State, local, or tribal 
governments an enforceable duty, except a condition of Federal 
assistance or a duty arising from participating in a voluntary Federal 
program. Title II of that law requires each Federal agency to assess 
the effects of Federal regulatory actions on State, local, and tribal 
governments, in the aggregate, or to the private sector, other than to 
the extent such actions merely incorporate requirements specifically 
set forth in a statute. Section 202 of that title requires a Federal 
agency to perform a detailed assessment of the anticipated costs and 
benefits of any rule that includes a Federal mandate which may result 
in costs to State, local, or tribal governments, or to the private 
sector, of $100 million or more in any one year (adjusted annually for 
inflation). 2 U.S.C. 1532(a) and (b). Section 204 of that title 
requires each agency that proposes a rule containing a significant 
Federal intergovernmental mandate to develop an effective process for 
obtaining meaningful and timely input from elected officers of State, 
local, and tribal governments. 2 U.S.C. 1534.
    The proposed rule would not result in the expenditure by State, 
local, and tribal governments in the aggregate, or by the private 
sector, of $100 million or more in any one year. Accordingly, no 
assessment or analysis is required under the Unfunded Mandates Reform 
Act of 1995.

F. The Treasury and General Government Appropriations Act, 1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any proposed rule that may affect family 
well-being. The proposed rule would not have any impact on the autonomy 
or integrity of the family as an institution. Accordingly, the DOE has 
concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

G. Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (Aug. 4, 1999) 
imposes certain requirements on agencies formulating and implementing 
policies or regulations that preempt State law or that have federalism 
implications. Agencies are required to examine the constitutional and 
statutory authority supporting any action that would limit the 
policymaking discretion of the States and carefully assess the 
necessity for such actions. The DOE has examined this proposed rule and 
has determined that it would not preempt State law and would not have a 
substantial direct effect on the States, on the relationship between 
the national government and the States, or on the distribution of

[[Page 41659]]

power and responsibilities among the various levels of government. No 
further action is required by Executive Order 13132.

H. Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (Feb. 7, 1996), imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. With regard to the review 
required by section 3(a), section 3(b) of Executive Order 12988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation: (1) Clearly specifies the 
preemptive effect, if any; (2) clearly specifies any effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) specifies the retroactive effect, if any; (5) adequately defines 
key terms; and (6) addresses other important issues affecting clarity 
and general draftsmanship under any guidelines issued by the Attorney 
General. Section 3(c) of Executive Order 12988 requires Executive 
agencies to review regulations in light of applicable standards in 
section 3(a) and section 3(b) to determine whether they are met or 
whether it is unreasonable to meet one or more of them. The DOE has 
completed the required review and determined that, to the extent 
permitted by law, the proposed rule meets the relevant standards of 
Executive Order 12988.

I. Treasury and General Government Appropriations Act, 2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516 note) provides for agencies to review most disseminations 
of information to the public under guidelines established by each 
agency pursuant to general guidelines issued by OMB. OMB's guidelines 
were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were 
published at 67 FR 62446 (Oct. 7, 2002). The DOE has reviewed this 
proposed rule under the OMB and DOE guidelines and has concluded that 
it is consistent with applicable policies in those guidelines.

V. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this notice of 
proposed rulemaking.

List of Subjects in 10 CFR Part 1003

    Administrative practice and procedure, Appeal procedures, Hearing 
and appeal procedures.

    Signed in Washington, DC, on August 6, 2019.
Poli A. Marmolejos,
Director, Office of Hearings and Appeals.

    For the reasons set out in the preamble, the DOE proposes to amend 
part 1003 of title 10, Code of Federal Regulations, to read as follows:

PART 1003--OFFICE OF HEARINGS AND APPEALS PROCEDURAL REGULATIONS

0
1. The authority citation for Part 1003 continues to read as follows:

    Authority:  15 U.S.C. 761 et seq.; 42 U.S.C. 7101 et seq.

0
2. Revise subpart A to read as follows:

SUBPART A--GENERAL PROVISIONS

Sec.
1003.1 Purpose and scope.
1003.2 Definitions.
1003.3 Appearance before the OHA.
1003.4 Computation of time.
1003.5 Extension of time.
1003.6 Service.
1003.7 General filing requirements.
1003.8 Effective date of orders.
1003.9 Method of submission of petitions, documents, and other 
materials.
1003.10 Public reference room.
1003.11 Filing a petition.
1003.12 Notice.
1003.13 Alternative Dispute Resolution.
1003.14 Evaluation of petitions.
1003.15 Subpoenas, information requests, oaths, witnesses.
1003.16 Dismissal of petitions.
1003.17 Standard of review.
1003.18 Decision and Order.
1003.19 Reconsideration.


Sec.  1003.1  Purpose and scope.

    (a) This part establishes the procedures to be utilized in certain 
proceedings before the Office of Hearings and Appeals of the Department 
of Energy, where comprehensive procedures are not to be found in 
another part of DOE's regulations. These procedures provide standard 
rules of practice in a variety of informal adjudications when 
jurisdiction is vested in the Office of Hearings and Appeals, including 
requests for adjustments from DOE rules, regulations, and orders under 
the authority of 42 U.S.C. 7194 as well as other requests for relief 
with respect to final dispositions of DOE. Any or all of the procedures 
contained in this part may be adopted by reference in another DOE 
program, statute, rule, regulation, guidance, or DOE delegation of 
authority that invokes the adjudicatory authority of the Office of 
Hearings and Appeals. These rules do not apply to proceedings governed 
by a federal statute or DOE regulation that contains comprehensive 
procedures specifically applicable to proceedings conducted under the 
authority of that regulation. (E.g., 10 CFR part 708-DOE Contractor 
Employee Protection Program; 10 CFR part 710--Procedures for 
Determining Eligibility for Access to Classified Matter or Special 
Nuclear Material; 10 CFR part 1004--Freedom of Information Act (FOIA); 
10 CFR part 712--Human Reliability Program.)
    (b) Wherever another DOE program, statute, rule, regulation, 
guidance, or DOE delegation of authority references or adopts by 
reference the procedures set forth in a subpart contained in a previous 
iteration of this part, regardless of the subpart referenced, the 
procedures set forth in this part shall be deemed to apply.


Sec.  1003.2   Definitions.

    (a) As used in this part:
    Action means an affirmative act by DOE that carries the force of 
law.
    Aggrieved, with respect to a person, means adversely affected by an 
action of the DOE.
    Alternative Dispute Resolution means any technique for resolving 
disputes and managing conflict without resorting to litigation in 
either an administrative or judicial forum. Alternative Dispute 
Resolution techniques include, but are not limited to, mediation, 
facilitation, and shuttle diplomacy.
    Decision and Order means the OHA's final decision on a petition 
brought under this part.
    Director means the Director of the Office of Hearings and Appeals 
or duly authorized delegate.
    DOE means the Department of Energy, created by the Department of 
Energy Organization Act (42 U.S.C. 7101 et seq.), and the National 
Nuclear Security Administration (NNSA).
    Duly authorized representative means a person who has been 
designated to appear before the Office of Hearings and Appeals in 
connection with a proceeding on behalf of a person interested in or 
aggrieved by an action of the DOE. Such appearance may consist of the 
submission of a written document, a personal appearance, verbal 
communication, or any other participation in the proceeding.

[[Page 41660]]

    Federal legal holiday means any calendar day designated as a 
federal holiday by federal statute or Executive order.
    Final disposition of DOE means a DOE rule, order, or other action 
in any matter other than:
    (1) A rulemaking;
    (2) An internal DOE order or directive issued by the Secretary of 
Energy or his delegate in the management and administration of 
departmental elements and functions; or
    (3) Any decision or order issued under 41 U.S.C. 4712 or under part 
708, part 710, part 712, or part 1004 of this title.
    OHA means the Office of Hearings and Appeals of the Department of 
Energy.
    Participant means a non-party entity that submits a comment, 
briefing, or other filing in a proceeding.
    Party means the petitioner and any adverse entity, which may 
include the DOE, which assumes the role of defendant or respondent in 
the proceeding.
    Person means any individual, firm, estate, trust, sole 
proprietorship, partnership, association, company, joint-venture, 
corporation, governmental unit or instrumentality thereof, or a 
charitable, educational or other institution, and includes any officer, 
director, owner or duly authorized representative thereof.
    Petition means a written submission to the OHA requesting that the 
OHA grant the petitioner relief.
    Petitioner means any person filing a petition with the OHA.
    Proceeding means the process and activity, and any part thereof, 
instituted by the OHA--either on its own initiative or in response to a 
petition submitted by a person--that may lead to an action by the OHA.
    Verified email address means an email address that is publicly 
published or available upon request, or, if no such address exists, an 
email address through which the sender has communicated with the 
recipient in the previous 12 months.
    (b) Throughout this part the use of a word or term in the singular 
includes the plural, and the use of the male pronoun is gender neutral.


Sec.  1003.3  Appearance before the OHA.

    (a) An interested person may make an appearance, including a 
personal appearance at the discretion of the OHA, and participate in 
any proceeding described in this part on his own behalf or by a duly 
authorized representative. Any document filed by a duly authorized 
representative must contain a statement by such person certifying that 
he is a duly authorized representative.
    (b) Suspension and disqualification. The OHA may deny, temporarily 
or permanently, in whole or in part, the privilege of participating in 
proceedings, including oral presentation, to any individual who is 
found by the OHA--
    (1) To have made false or misleading statements, either orally or 
in writing;
    (2) To have filed false or materially altered documents, affidavits 
or other writings;
    (3) To lack the specific authority to represent the party or 
participant; or
    (4) To have engaged in or to be engaged in conduct that 
substantially disrupts a proceeding.


Sec.  1003.4  Computation of time.

    (a) Days. Except as provided in paragraph (b) of this section, in 
computing any period of time prescribed or allowed by these regulations 
or by an order of the OHA, the day of the act, event, or default from 
which the designated period of time begins to run is not to be 
included. The last day of the period so computed is to be included 
unless it is a Saturday, Sunday, or federal legal holiday, in which 
event the period runs until the end of the following day that is not a 
Saturday, Sunday, or a federal legal holiday. Documents received after 
5:00 p.m., Eastern Time, are deemed filed on the following regular 
business day.
    (b) Hours. If the period of time prescribed in an order issued by 
the OHA is stated in hours rather than days, the period of time begins 
to run upon actual notice of such order, whether by oral or written 
communication, to the person directly affected, and will run without 
interruption, unless otherwise provided in the order, or unless the 
order is stayed, modified, suspended, or rescinded. When a written 
order is transmitted by oral communication, the written order must be 
served as soon thereafter as is feasible.
    (c) Additional time after service by mail. Whenever a person is 
required to perform an act, to cease and desist therefrom, or to 
initiate a proceeding under this part within a prescribed period of 
time after issuance to such person of an order, notice or other 
document and the order, notice, or other document is served solely by 
mail, 3 days will be added to the prescribed period.


Sec.  1003.5   Extension of time.

    When a document is required to be filed within a prescribed time, 
an extension of time to file may be granted by the OHA upon good cause 
shown.


Sec.  1003.6   Service.

    (a) All documents required to be served under this part must be 
served personally, by first class United States mail, or by verified 
email address, except as otherwise provided.
    (b) Service upon a person's duly authorized representative 
constitutes service upon that person.
    (c) Official United States Postal Service receipts from certified 
mailing and email delivery receipts constitute evidence of service.
    (d) The OHA may, at its discretion, allow for alternate forms of 
service when it determines that such would be advisable.


Sec.  1003.7   General filing requirements.

    (a) Purpose and scope. The provisions of this section apply to all 
documents required or permitted to be filed with the OHA.
    (b) Signing. Any document that is required to be signed, must be 
signed by the person filing the document. Any document filed by a duly 
authorized representative must contain a statement by such person 
certifying that he is a duly authorized representative. The signature 
by the filer constitutes a certificate by the signer that the signer 
has read the document and that to the best of the signer's knowledge, 
information, and belief formed after reasonable inquiry, the document 
is well grounded in fact, warranted under existing law, and submitted 
in good faith and not for any improper purpose such as to harass or to 
cause unnecessary delay. If a document is signed in violation of this 
section, the OHA may impose the sanctions specified in Sec.  1003.3 and 
other sanctions determined to be appropriate.
    (c) Labeling. A petition must be clearly labeled according to the 
nature of the action involved both on the petition itself and, where 
applicable, in the subject line of the email in which the petition is 
transmitted.
    (d) Obligation to supply information. A person who files a petition 
is under a continuing obligation during the proceeding to provide the 
OHA with any new or newly discovered information that is relevant to 
that proceeding. Such information includes, but is not limited to, 
information regarding any other submission that is subsequently filed 
by that person with any DOE office.
    (e) The same or related matters. A person who files a petition with 
the OHA must state whether, to the best knowledge of that person, the 
same or

[[Page 41661]]

related action as that which is the subject of the petition has been or 
presently is being considered or investigated by any other DOE office, 
other federal agency, department, or instrumentality; or by a state or 
municipal agency or court; or by any law enforcement agency, including, 
but not limited to, a consideration or investigation in connection with 
any proceeding described in this part. In addition, the person must 
state whether contact has been made by the person or one acting on his 
behalf with any person who is employed by the DOE with regard to the 
same or a related issue, act, or transaction arising out of the same 
factual situation; the name of the person contacted; whether the 
contact was oral or in writing; the nature and substance of the 
contact; and the date or dates of the contact.
    (f) Request for confidential treatment. (1) If any person filing a 
document with the OHA claims that some or all of the information 
contained in the document is exempt from the mandatory public 
disclosure requirements of the Freedom of Information Act (5 U.S.C. 
552), is information referred to in 18 U.S.C. 1905, or is otherwise 
exempt by law from public disclosure, and if such person requests the 
OHA not to disclose such information, such person must file together 
with the document a copy of the document from which the information for 
which confidential treatment is being sought has been deleted. The 
person must indicate in the original document that it is confidential 
or contains confidential information and must file a statement 
specifying the justification for non-disclosure of the information for 
which confidential treatment is claimed. For example, if the person 
states that the information comes within the exception codified at 5 
U.S.C. 552(b)(4) for trade secrets and commercial or financial 
information, such person shall include a statement specifying why such 
information is privileged or confidential. If the person filing a 
document does not submit a copy of the document with the confidential 
information deleted, the OHA may assume that there is no objection to 
public disclosure of the document in its entirety.
    (2) The OHA will make a determination regarding any claim of 
confidentiality under criteria specified in 10 CFR 1004.11. Notice of 
the decision by the OHA to deny such claim, in whole or in part, and an 
opportunity to respond will be given to a person claiming 
confidentiality of information no less than five days prior to its 
public disclosure.
    (g) Each petition to the OHA must be submitted as a separate 
document, even if the petitions deal with the same or a related action 
or are submitted in connection with the same proceeding.


Sec.  1003.8  Effective date of orders.

    Any order issued under this part is effective as against all 
persons having actual or constructive notice thereof upon issuance, in 
accordance with its terms, unless and until it is stayed or suspended. 
An order is deemed to be issued on the date, as specified in the order, 
on which it is signed by the Director, unless the order provides 
otherwise.


Sec.  1003.9   Method of submission of petitions, documents, and other 
materials.

    Absent exceptional circumstances, all submissions to the OHA, as 
provided in this part or otherwise, must be filed electronically in 
accordance with the instructions set forth on the OHA website, found at 
https://www.energy.gov/oha/filing-information. The OHA may grant 
permission to file via mail or facsimile. Any submissions made in hard 
copy will not be returned.


Sec.  1003.10   Public reference room.

    The OHA maintains an electronic public reference room at https://www.energy.gov/oha/decision-summaries. The following information is 
included:
    (a) A list of all persons who have filed a petition and a digest of 
each petition;
    (b) Each Decision and Order, with confidential information deleted, 
issued in response to a petition; and
    (c) Any other information in the possession of the OHA which is 
required by statute to be made available for public inspection and 
copying, and any other information that the OHA determines should be 
made available to the public.


Sec.  1003.11  Filing a petition.

    (a) Who May File. Any person may file a petition under this part 
who is aggrieved by a final disposition of DOE or who is so authorized 
by a program, statute, rule, regulation, guidance, or DOE delegation of 
authority.
    (b) Form of Petition. The person seeking relief under this part 
must file a petition. The general filing requirements in Sec.  1003.7 
apply in addition to the requirements stated in this part.
    (c) Elements of a Petition. Petitions to the OHA must include, as 
applicable:
    (1) A full and complete statement of all relief requested from the 
OHA;
    (2) A citation to the statute, regulation, delegation, or other 
authority pursuant to which the OHA has jurisdiction to consider the 
petition;
    (3) A full and complete statement of all relevant facts pertaining 
to the action that is the subject of the petition and to the OHA relief 
sought;
    (4) A statement of the factual and legal justification for the 
relief requested in the petition;
    (5) A copy of all documents, including, but not limited to, 
contracts, financial records, communications, plans, analyses, and 
diagrams related to the petitioner's eligibility for the relief 
requested in the petition; and,
    (6) A motion for stay, if a stay is sought by the petitioner. The 
OHA may grant a motion for stay filed after the petition only upon a 
showing of good cause.
    (d) Service Certification. The petitioner must submit to the OHA a 
certification that the petitioner has served the notice required 
pursuant to Sec.  1003.12 of this part. The OHA must receive the 
certification within 15 days of the date on which OHA received the 
petition. The OHA may grant an extension of time only upon a showing of 
good cause. The certification must include the names, addresses, 
telephone numbers, and email addresses of all potentially aggrieved 
persons or a statement that such information, in whole or in part, is 
not reasonably ascertainable.
    (e) Where to File. A petition must be filed with the OHA in the 
manner specified in Sec.  1003.9.


Sec.  1003.12   Notice.

    (a) The petitioner must serve a copy of the petition and any 
subsequent amendments or other documents relating to the petition, or a 
copy from which confidential information has been deleted in accordance 
with Sec.  1003.7(f), to each person who is reasonably ascertainable by 
the petitioner as a person who would be aggrieved by the OHA relief 
sought. The copy of the petition must be accompanied by a statement 
that the person may submit comments regarding the petition to the OHA 
within 10 days. The OHA may, in its discretion, extend the comment 
period. The petitioner must file a service certification with the OHA, 
in accordance with Sec.  1003.11(d), stating that the requirements of 
this paragraph have been complied with and must include the names, 
addresses, and verified email addresses of each person to whom a copy 
of the petition was sent. The OHA may require the petitioner to provide 
additional or alternative notice, may identify additional persons on 
whom an applicant must serve notice,

[[Page 41662]]

or may determine that notice should be published in the Federal 
Register.
    (b) Notwithstanding the provisions of paragraph (a) of this 
section, if the petitioner determines that compliance with paragraph 
(a) of this section would be impracticable, the petitioner must:
    (1) Comply with the requirements of paragraph (a) of this section 
with regard to those persons whom it is reasonable and practicable to 
notify; and
    (2) Include with the certification a description of the persons or 
class or classes of persons to whom notice was not sent, as well as a 
brief explanation of why notice to each person or class of person was 
impracticable.
    (c) Any person submitting written comments to the OHA regarding a 
petition filed under this part must serve a copy of the comments, or a 
copy from which confidential information has been deleted in accordance 
with Sec.  1003.7(f), to the petitioner. The person must certify to the 
OHA that he has complied with the requirements of this paragraph. The 
OHA may notify other persons participating in the proceeding of such 
comments and provide an opportunity for such persons to respond.


Sec.  1003.13   Alternative Dispute Resolution.

    The DOE encourages the use of Alternative Dispute Resolution (ADR) 
to resolve disputes and controversies at any stage of the proceedings. 
Accordingly, parties appearing before the OHA are encouraged to use ADR 
when practical. The DOE Alternative Dispute Resolution Office, which 
employs multiple neutrals trained in mediation and other ADR services, 
provides ADR services for disputes involving the DOE and its affiliated 
organizations (e.g., DOE contractors). ADR is voluntary and the OHA 
will never require parties to engage in settlement negotiations or 
mediation.


Sec.  1003.14  Evaluation of petitions.

    (a) The OHA will acknowledge receipt of all petitions filed 
pursuant to this part.
    (b) The OHA may request information of a petitioner, including, but 
not limited to, financial documents, responses to interrogatories, 
copies of communications, and such other information the OHA determines 
may inform its evaluation of the petition.
    (1) The OHA will provide a petitioner with a period of time within 
which to provide any information requested by the OHA pursuant to this 
paragraph and instructions on how to deliver the information to the 
OHA.
    (2) The OHA may extend the period of time for a petitioner to 
provide information requested by the OHA upon a showing of good cause 
by the petitioner. Such extensions will generally be for a period of no 
more than 30 days, and in no case will the OHA grant an extension that 
would result in the undue delay of its evaluation of a petition.
    (c) In evaluating a petition, the OHA may consider relevant 
information from any source, including information received from a 
third party, provided that the petitioner is afforded an opportunity to 
respond to all third-party submissions.
    (d) The OHA will complete its evaluation of a petition within 180 
days of receipt of the petition. However, the Director may extend the 
period for the OHA's review for good cause, the reasoning for which 
must be set forth in the order extending the review period.
    (e) In its evaluations, the OHA will use as a guide, but will not 
be bound by, the Federal Rules of Civil Procedure and Federal Rules of 
Evidence.
    (f) The Director has all of the judicial powers necessary to 
conduct the proceeding, including, but not limited to, grants or 
denials of motions and entry of interlocutory orders.
    (g) Hearings. The OHA may conduct a hearing with regard to the 
petition if, in its discretion, it considers that such hearing will 
materially advance the proceeding. In deciding whether to conduct a 
hearing, the OHA may consider various factors, including, but not 
limited to, the number of persons potentially aggrieved by a petition, 
the extent to which witness testimony will assist OHA in developing a 
complete factual record, and the estimated costs of conducting a 
hearing at a venue reasonably convenient to all parties.


Sec.  1003.15  Subpoenas, information requests, oaths, witnesses.

    (a) In accordance with the provisions of this section and as 
otherwise authorized by law, the Director may sign, issue, and serve 
subpoenas; administer oaths and affirmations; take sworn testimony; 
compel attendance of and sequester witnesses; control dissemination of 
any record of testimony taken pursuant to this section; and subpoena 
and reproduce books, papers, correspondence, memoranda, contracts, 
agreements, or other relevant records or tangible evidence including, 
but not limited to, information retained in computerized or other 
automated systems in the possession of the subpoenaed person.
    (b) The OHA may issue an information request requiring any person 
subject to the jurisdiction of the OHA to file a report providing 
information relating to the OHA proceeding, including, but not limited 
to, written answers to specific questions. The information request may 
be in addition to any other reports required.
    (c) The Director, for good cause shown, may extend the time 
prescribed for compliance with the subpoena or information request and 
determine the terms of satisfactory compliance.
    (d) Prior to the time specified for compliance, but within 10 days 
after the date of service of the subpoena or information request, the 
person upon whom the document was served may file a request for review 
of the subpoena or information request with the Director. The Director 
then will provide notice of receipt to the person requesting review, 
may extend the time prescribed for compliance with the subpoena or 
information request, and may determine the terms of satisfactory 
compliance.
    (e) If the subpoena or information request is not modified or 
rescinded within 10 days of the date of the Director's notice of 
receipt:
    (1) The subpoena or information request will be effective as 
issued; and
    (2) The person upon whom the document was served must comply with 
the subpoena or information request within 20 days of the date of the 
Director's notice of receipt, unless otherwise notified in writing by 
the Director.
    (f) A subpoena or information request must be served upon a person 
named in the document.
    (g) If any person upon whom a subpoena or information request is 
served pursuant to this section refuses or fails to comply with any 
provision of the subpoena or information request, a proceeding may be 
commenced in the appropriate United States District Court to enforce 
the subpoena or information request.
    (h) Documents produced in response to a subpoena must be 
accompanied by the sworn certification, under penalty of perjury, of 
the person to whom the subpoena was directed or his authorized agent 
that:
    (1) A diligent search has been made for each document responsive to 
the subpoena; and
    (2) To the best of his knowledge, information, and belief each 
document responsive to the subpoena is being produced.
    (i) Any information furnished in response to an information request 
must be accompanied by the sworn certification, under penalty of 
perjury, of the person to whom it was directed or his authorized agent 
who actually provides the information that:

[[Page 41663]]

    (1) A diligent effort has been made to provide all information 
required by the information request; and
    (2) All information furnished is true, complete, and correct.
    (j) If any document responsive to a subpoena is not produced or any 
information required by an information request is not furnished, the 
certification must include a statement setting forth every reason for 
failing to comply with the subpoena or information request. If a person 
to whom a subpoena or information request is directed withholds any 
document or information because of a claim of attorney-client or other 
privilege, the person submitting the certification required by 
paragraphs (h) or (i) of this section must also submit a written list 
of the documents or the information withheld indicating a description 
of each document or piece of information, the date of the document, 
each person shown on the document as having received a copy of the 
document, each person shown on the document as having prepared or been 
sent the document, the privilege relied upon as the basis for 
withholding the document or information, and an identification of the 
person whose privilege is being asserted.
    (k) If testimony is taken pursuant to a subpoena, the Director will 
determine whether the testimony will be recorded and the means by which 
the testimony is recorded.
    (l) A witness whose testimony is recorded may procure a copy of his 
testimony by making a written request for a copy and paying the 
appropriate fees.
    (m) The Director may sequester any person subpoenaed to furnish 
documents or give testimony. Unless permitted by the Director, neither 
a witness nor his attorney is permitted to be present during the 
examination of any other witnesses.
    (n) The Director may require testimony to be given under oath, 
regardless of the form of the testimony. The oath or affirmation will 
direct the witness's attention to 18 U.S.C. 1001 and 18 U.S.C. 1621.
    (o) The Director may require submissions to the OHA to be 
accompanied by an oath or affirmation attesting to the truth and 
accuracy of the submission. The oath or affirmation will direct the 
submitter's attention to 18 U.S.C. 1001 and 18 U.S.C. 1621.
    (p) A witness whose testimony is taken may be accompanied, 
represented and advised by his attorney as follows:
    (1) Upon the initiative of the attorney or witness, the attorney 
may advise his client, in confidence, with respect to the question 
asked his client, and if the witness refuses to answer any question, 
the witness or his attorney is required to briefly state the legal 
grounds for such refusal; and
    (2) If the witness claims a privilege to refuse to answer a 
question on the grounds of self-incrimination, the witness must assert 
the privilege personally.
    (q) The Director will take all necessary steps to regulate the 
course of testimony and to avoid delay and prevent or restrain 
contemptuous or obstructionist conduct or language. The OHA may take 
steps as the circumstances warrant in regard to any instances where any 
person or attorney refuses to comply with directions or provisions of 
this section.


Sec.  1003.16   Dismissal of petitions.

    The Director may issue a Decision and Order dismissing a petition 
at any time during the course of a proceeding. The Decision and Order 
shall state whether the dismissal is with prejudice or without 
prejudice. A Decision and order Dismissing a petition may be the 
subject of a motion for reconsideration in accordance with Sec.  
1003.19 of this part.
    (a) Dismissal with Prejudice. The dismissal of a petition with 
prejudice by the OHA terminates the OHA's review of the petition and 
bars the petitioner from submitting any future petition concerning the 
same, or substantially the same, issues as those in the petition. The 
OHA may dismiss a petition with prejudice if:
    (1) The OHA lacks jurisdiction to consider the petition;
    (2) The petitioner has already received a Decision and Order from 
the Director in response to a previously filed petition that addresses 
the same issue;
    (3) The petitioner provides a false statement under oath or files a 
false instrument with the OHA, as determined by the OHA;
    (4) The petitioner refuses to comply with an order issued by the 
OHA;
    (5) The petition is untimely;
    (6) The issues raised in the petition are moot;
    (7) The petitioner repeatedly fails to comply with procedural 
requirements; or,
    (8) The same or a substantially similar petition was previously 
dismissed by the OHA without prejudice, and the same basis for 
dismissal without prejudice exists upon refiling by the same 
petitioner.
    (b) Dismissal without Prejudice. The dismissal of a petition 
without prejudice by the OHA terminates the OHA's review of the 
petition but does not bar the petitioner from resubmitting the petition 
provided that the facts or circumstances leading to the dismissal have 
been resolved. In dismissing a petition without prejudice, the OHA may 
order that the petitioner may not resubmit the petition, or a 
substantially similar petition, for a period of time not to exceed 180 
days. The OHA may dismiss a petition without prejudice if:
    (1) The petitioner fails to include any of the required elements of 
a petition set forth in Sec.  1003.11 of this part;
    (2) The petitioner fails to provide notice as required by Sec.  
1003.12 of this part;
    (3) The petitioner fails to timely provide documents or information 
at the request of the OHA pursuant to Sec.  1003.14 or Sec.  1003.15 of 
this part;
    (4) The petition fails to state a claim upon which the OHA can 
grant relief; or
    (5) The OHA determines that there is insufficient information upon 
which to base a decision.


Sec.  1003.17  Standard of review.

    (a) The OHA will grant a petition that seeks an adjustment from a 
DOE rule, regulation or order under the authority of 42 U.S.C. 7194 
only if it determines that doing so will alleviate or prevent serious 
hardship, gross inequity or unfair distribution of burdens.
    (b) Except as provided by program, statute, rule, regulation, or 
DOE delegation of authority, the OHA will grant any other petition 
filed under this part upon a showing that the DOE acted arbitrarily, 
capriciously, or in violation of a law, rule, regulation, or delegation 
with respect to the final disposition of DOE that is the subject of the 
petition.
    (c) Petitions shall be decided in a manner that is, to the extent 
possible, consistent with the disposition of previous petitions of the 
same kind.


Sec.  1003.18   Decision and Order.

    (a) Upon consideration of the petition and other relevant 
information received or obtained during the proceeding, the OHA will 
issue a Decision and Order granting or denying the petition and 
ordering relief as appropriate. The OHA will serve the Decision and 
Order on the parties to the proceeding and make it available to the 
public.
    (b) The Decision and Order will set forth its legal basis and the 
relevant facts, state whether it is a final agency action of the DOE, 
and state what further review, if any, is available.
    (c) There is no administrative appeal of a Decision and Order, 
except as provided by federal statute.


Sec.  1003.19   Reconsideration.

    A participant in the proceeding may submit to the OHA a motion for

[[Page 41664]]

reconsideration of a Decision and Order. The motion for reconsideration 
must be filed by the 20th day after the OHA makes the Decision and 
Order available to the public. The motion must include a statement of 
the grounds on which the movant believes reconsideration is warranted. 
Such grounds may include, but are not limited to, procedural, legal, or 
factual errors in the Decision and Order. A motion for reconsideration 
may be granted if the Director determines the Decision and Order 
contains an error that materially impacted the outcome of the 
proceeding.

[FR Doc. 2019-17207 Filed 8-14-19; 8:45 am]
 BILLING CODE 6450-01-P