[Code of Federal Regulations]
[Title 10, Volume 4, Parts 500 to end]
[Revised as of January 1, 1998]
From the U.S. Government Printing Office via GPO Access
[CITE: 10CFR590]
[Page 68-82]
TITLE 10--ENERGY
CHAPTER II--DEPARTMENT OF ENERGY--CONTINUED
PART 590--ADMINISTRATIVE PROCEDURES WITH RESPECT TO THE IMPORT AND EXPORT OF NATURAL GAS
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.
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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 70]]
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) 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.
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.
(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
[[Page 71]]
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 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.
[[Page 72]]
(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.
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
[[Page 73]]
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 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
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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 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.
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.
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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.
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.
[[Page 76]]
(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 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
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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 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
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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 Secs. 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 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
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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 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
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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 Secs. 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 Secs. 590.310, 590.311,
590.312 and 590.313.
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 Secs. 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
[[Page 81]]
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, 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
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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.
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