[Federal Register Volume 90, Number 132 (Monday, July 14, 2025)]
[Rules and Regulations]
[Pages 31139-31140]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-13132]
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DEPARTMENT OF ENERGY
10 CFR Part 1003
[DOE-HQ-2025-0013]
RIN 1910-AA57
Revisions to the Office of Hearings and Appeals Procedural
Regulations
AGENCY: Office of Hearings and Appeals, Department of Energy.
ACTION: Direct final rule; delay of effective date; response to
comments.
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SUMMARY: The U.S. Department of Energy (``DOE'') is publishing this
document to respond to comments received on the direct final rule
``Revisions to the Office of Hearings and Appeals Procedural
Regulations,'' published on May 16, 2025. As a result, DOE delays the
effective date of the direct final rule.
DATES: As of July 14, 2025, the effective date of the direct final rule
published May 16, 2025, at 90 FR 20774, is delayed until August 13,
2025.
FOR FURTHER INFORMATION CONTACT: Mr. Jeffrey Novak, U.S. Department of
Energy, Office of the General Counsel, GC-1, 1000 Independence Avenue
SW, Washington, DC 20585-0121; (202) 586-5281 or
[email protected].
SUPPLEMENTARY INFORMATION:
I. May 2025 Direct Final Rule
On May 16, 2025, DOE published a direct final rule rescinding Sec.
1003.13 of title 10, Code of Federal Regulations (``CFR''). 90 FR 20774
(``May 2025 DFR'') This regulation contains a statement that encourages
the use of alternative dispute resolution (``ADR'') for parties
appearing before the OHA and advises that participation in ADR is
voluntary. It does not confer any substantive right or obligation on
the Agency or any party and is not required by statute.
II. Response to Comments
DOE received three comments in response to the May 2025 DFR.
Table II.1--List of Commenters From the May 2025 DFR
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Comment No. in
Commenter Reference in this rule the docket Commenter type
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Anonymous.............................. Anonymous................. 2 Individual.
Anonymous.............................. Anonymous................. 3 Individual.
Professor Bridget C.E. Dooling......... Dooling................... 4 Individual.
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A. Response to Administrative Procedure Act Procedural Comment
Dooling stated that the May 2025 DFR did not satisfy the good cause
exemption from notice and comment rulemaking under the Administrative
Procedure Act (``APA''). (Dooling, No. 4 at p. 3).
In response, DOE notes that the APA requires that agencies provide
all interested persons with fair notice and an opportunity to comment
on the rulemaking. See 5 U.S.C. 553(b) & (c). The May 2025 DFR provided
the public with fair notice of DOE's changes to its own administrative
procedures regarding ADR for parties appearing before the OHA. See 90
FR 20774, 20775 (discussing specific administrative changes encouraging
ADR). DOE also requested comments on the May 2025 DFR, and stated, if
the Department received significant adverse comments, the Department
would withdraw the rule or issue a new final rule which responds to
such comments. Id. at 90 FR 20774. Thus, DOE provided interested
persons with fair notice and an opportunity to comment as required by
the APA. As a result, there was no need for a good cause exemption from
notice-and-comment rulemaking under 5 U.S.C. 553(b).
Finally, contrary to the comment from Dooling (Dooling, No. 4 at p.
4), Dooling cannot argue commenters were denied fair notice and an
opportunity to comment solely based on how the notice was labeled. See
Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania,
591 U.S. 657, 683 (2020) (holding that ``[f]ormal labels aside, the
[interim final rules] contained all of the elements of a notice of
proposed rulemaking as required by the APA''). Irrespective of its
title, the May 2025 DFR contained the required elements of a proposed
rulemaking under the APA.
B. Response to Other Comments
DOE received two comments, which stated (1) that parties benefit
from ADR and the rescission of this regulation would make parties less
aware of this cost-saving service; and (2) that this regulation was
required by the Administrative Dispute Resolutions Act (``ADRA''), 5
U.S.C. 573. (Anonymous, No. 3 at p. 1; Anonymous, No. 2 at p. 1) In
response to the first point, there is no evidence that parties decide
to utilize ADR because of this regulation, and, therefore, there is no
evidence that the rescission of this regulation will reduce the use of
ADR in any meaningful way. The OHA will continue to advise parties as
to the availability of ADR services when appropriate in order to
promote cost-efficient methods of problem solving. In response to the
second point, ADRA does not require the DOE to maintain specific
regulations encouraging the use of ADR; rather it requires generally
that agencies ``encourage and facilitate agency use of alternative
means of dispute resolution.'' (5 U.S.C. 573(c)(1)) DOE will continue
to encourage and facilitate the use of ADR when appropriate regardless
of any specific regulation, and, thus, will adhere to the requirements
of ADRA.
III. Conclusion
For the reasons discussed in the preceding sections of this
document, DOE is not withdrawing the May 2025 DFR, which rescinds the
regulation encouraging the use of ADR by parties appearing before the
OHA.
DOE also notes, to the extent that 5 U.S.C. 553 applies to the
delay of effective date, it is exempt from notice and comment because
it constitutes a rule of procedure under 5 U.S.C. 553(b)(A) and for
which no notice or hearing is required by statute. Additionally, this
action is not a ``substantive rule'' for which a 30-day delay in
effective date is required under 5 U.S.C. 553(d).
Signing Authority
This document of the Department of Energy was signed on July 9,
2025, by Chris Wright, Secretary of Energy. That document with the
original signature
[[Page 31140]]
and date is maintained by DOE. For administrative purposes only, and in
compliance with requirements of the Office of the Federal Register, the
undersigned DOE Federal Register Liaison Officer has been authorized to
sign and submit the document in electronic format for publication, as
an official document of the Department of Energy. This administrative
process in no way alters the legal effect of this document upon
publication in the Federal Register.
Signed in Washington, DC, on July 10, 2025.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
[FR Doc. 2025-13132 Filed 7-11-25; 8:45 am]
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