would materially advance the consideration of the issue.

(c) A public hearing may only be convened after publication of a notice in the FEDERAL REGISTER, which shall state the time, place, and nature of the public hearing.

(d) Interested persons may file a request to participate in the public hearing in accordance with the instructions in the notice published in the FEDERAL REGISTER. The request shall be in writing and signed by the person making the request. It shall include a description of the person's interest in the issue or issues involved and of the anticipated content of the presentation. It shall also contain a statement explaining why the person would be an appropriate spokesperson for the particular view expressed.

(e) DOE shall appoint a presiding officer to conduct the public hearing. An agenda shall be prepared that shall provide to the extent practicable, for the presentation of all relevant views by competent spokespersons.

A verbatim transcript shall be made of the hearing. The transcript, together with any written comments submitted in the course of the proceeding, shall be made available for public inspection and copying in the Hearings and Appeals Docket Room or Freedom of Information Reading Room, as appropriate, described in § 303.13.

The information presented at the public hearing, together with the written comments submitted and other relevant information developed during the course of a proceeding, shall provide the basis for the DOE decision.

Subpart O-Complaints

§ 303.180 Purpose and scope.

This subpart establishes the procedures for the filing and consideration of complaints relating to alleged violations of the ESECA coal conversion regulations.

§ 303.181 What to file.

A person filing under this subpart shall file a "Complaint (ESECA)" which should be clearly labeled as such both on the complaint and on the outside of the envelope in which the complaint is transmitted, and shall

§ 303.184 DOE evaluation.

(a) Processing. DOE may initiate an investigation of any statement in a complaint or any other document submitted to it and may utilize in its evaluation any relevant facts obtained by such investigation. DOE may solicit or accept submissions relevant to a complaint or other document from third persons to the proceeding. In evaluating a complaint, DOE may consider any other source of information. DOE on its initiative may order a conference if, in its discretion, it considers such conference will advance its evaluation of the complaint.

(b) Confidentiality of information. Information received in the investigation of a complaint, including the identity of the complainant and any other person who provides information during the proceeding, shall remain confidential to the extent it is covered by the investigatory file exception to public disclosure contained in 5 U.S.C. 552 unless, upon proper notice to the complainant and an op

portunity to respond, DOE determines that disclosure would be in the public interest.

§ 303.185 Decision.

After consideration of a written complaint, unless written verification of a verbal complaint was not requested, and of other relevant information received or obtained during the proceeding, DOE may:

(a) Issue a notice of probable violation or remedial order for immediate compliance in accordance with the provisions of Subpart P of this part;

(b) Determine that no violation has occurred or that a notice of probable violation or a remedial order for immediate compliance would not be appropriate; or

(c) Take such other action as it deems appropriate.

Subpart P-Notice of Probable Violation and Remedial Order

§ 303.190 Purpose and scope.

(a) This subpart establishes the procedures for determining the nature and extent of violations of the ESECA coal conversion regulations and the procedures for issuance of a notice of probable violation, a remedial order, or a remedial order for immediate compliance.

(b) When any report required by DOE or any audit or investigation discloses, or DOE otherwise discovers, that there is reason to believe a violation of any provision of the ESECA coal conversion regulations, or any order issued thereunder, has occurred, is continuing or is about to occur, DOE may conduct proceedings to determine the nature and extent of the violation and may issue a remedial order thereafter. DOE may commence such proceeding by serving a notice of probable violation or by issuing a remedial order for immediate compliance.

§ 303.191 Notice of probable violation.

(a) DOE may begin a proceeding under this subpart by issuing a notice of probable violation if DOE has reason to believe that a violation has occurred, is continuing, or is about to

occur.

(b) Within 10 days of the service of a notice of probable violation, the person upon whom the notice is served may file a reply with the DOE office that issued the notice of probable violation at the address provided in § 303.12. DOE may extend the 10-day period for good cause shown.

(c) The reply shall be in writing and signed by the person filing it. The reply shall contain a full and complete statement of all relevant facts pertaining to the act or transaction that is the subject of the notice of probable violation. Such facts shall include a complete statement of the business or other reasons that justify the act or transaction, if appropriate; a detailed description of the act or transaction; and a full discussion of the pertinent provisions and relevant facts reflected in any documents submitted with the reply. Copies of all relevant contracts, agreements, leases, instruments, and other documents shall be submitted with the reply. When the notice of probable violation pertains to only one step of a larger integrated transaction, the facts, circumstances, and other relevant information regarding the entire transaction shall be submitted.

(d) The reply shall include a discussion of all relevant authorities, including, but not limited to DOE and EPA rulings, regulations, interpretations, and decisions on appeals and applications for exception relied upon to support the particular position taken.

(e) The reply should indicate whether the person requests or intends to request a conference regarding the notice. Any request not made at the time of the reply shall be made as soon thereafter as possible to insure that the conference is held when it will be most beneficial. A request for a conference must conform to the requirement of Subpart N of this part, which determination is within DOE's discretion.

(f) If a person has not filed a reply with DOE within the 10-day period provided, and DOE has not extended the 10-day period, the person shall be deemed to have conceded the accuracy of the factual allegations and legal conclusions stated in the notice of probable violation.

(g) If DOE finds, after the 10-day period provided in § 303.191(b), that no violation has occurred, is continuing, or is about to occur, or that for any reason the issuance of a remedial order would not be appropriate, it shall notify, in writing, the person to whom a notice of probable violation has been issued that the notice is rescinded.

§ 303.192 Remedial order.

(a) If DOE finds, after the 10-day period provided in § 303.191(b), that a violation has occurred, is continuing, or is about to occur, DOE may issue a remedial order. The order shall include a written statement setting forth the relevant facts and the legal basis of the remedial order.

(b) A remedial order issued under this section shall be effective upon issuance, in accordance with its terms, until stayed, suspended, modified, or rescinded. A remedial order shall remain in effect notwithstanding the filing of an application to modify or rescind it under Subpart K of this part.

(c) A remedial order may be referred at any time to the Department of Justice for appropriate action in accordance with Subpart Q of this part.

§ 303.193 Remedial order for immediate

compliance.

(a) Notwithstanding the provisions of §§ 303.191 and 303.192, DOE may issue a remedial order for immediate compliance, which shall be effective upon issuance and until rescinded or suspended, if it finds that:

(1) There is a strong probability that a violation has occurred, is continuing or is about to occur;

(2) Irreparable harm will Occur unless the violation is remedied immediately; and

(3) The public interest requires the avoidance of such irreparable harm through immediate compliance and waiver of the procedures afforded under §§ 303.191 and 303.192.

(b) A remedial order for immediate compliance shall be served promptly by telex or telegram upon the person against whom such order is issued, with a copy of the remedial order for immediate compliance served by regis

tered or certified mail. The order shall contain a written statement of the relevant facts and the legal basis for the remedial order for immediate compliance, including the findings required by paragraph (a) of this section.

(c) DOE may rescind or suspend a remedial order for immediate compliance if it appears that the criteria set forth in paragraph (a) of this section are no longer satisfied. When appropriate, however, such a suspension or rescission may be accompanied by a notice of probable violation issued under § 303.191.

(d) If at any time in the course of a proceeding commenced by a notice of probable violation the criteria set forth in paragraph (a) of this section are satisfied, DOE may issue a remedial order for immediate compliance, even if the 10-day period for reply specified in § 303.191(b) has not expired.

(e) At any time after a remedial order for immediate compliance has become effective, DOE may refer such order to the Department of Justice for appropriate action in accordance with Subpart Q of this part.

(a) No notice of probable violation issued pursuant to this subpart shall be deemed to be an action of which there may be an administrative appeal pursuant to Subpart H of this part.

(b) Any person to whom a remedial order or a remedial order for immediate compliance is issued under this subpart may file an appeal with the DOE Office of Hearings and Appeals in accordance with Subpart H of this part. The appeal must be filed within 10 days of service of the order from which the appeal is taken.

§ 303.200 Investigations.

(a) General. DOE may, in its discretion, initiate investigations relating to compliance by any person with any rule, regulation, or order promulgated by DOE under the authority of sections 2 and 12 of ESECA (15 U.S.C. 792 and 797, respectively), any decree of court relating thereto, or any other agency action. DOE encourages voluntary cooperation with its investigations. When the circumstances warrant, however, DOE may issue subpoenas in accordance with and subject to § 303.8. DOE may conduct investigative conferences and hearings in the course of any investigation in accordance with Subpart N of this part, which determination is within DOE's discretion.

(b) Investigators. Investigations will be conducted by representatives of DOE who are duly designated and authorized for such purposes. Such representatives have the authority to administer oaths and receive affirmations in any matter under investigation by DOE.

(c) Notification. Any person who is under investigation by DOE in accordance with this section and who is requested to furnish information or documentary evidence shall be notified as to the general purpose for which such information or evidence is sought.

(d) Termination. When the facts disclosed by an investigation indicate that further action is unnecessary or unwarranted at that time, the investigative file will be closed without prejudice to further investigation by DOE at any time that circumstances so warrant.

(e) Confidentiality. Information received in an investigation under this section, including the identity of the person investigated and any other person who provides information during the investigation, shall, unless otherwise determined by DOE, remain confidential to the extent it is covered under the investigatory file exception to public disclosure contained in 5 U.S.C. 552.

(a) General. Any person who violates any provision of the ESECA coal conversion regulations or any order issued pursuant thereto shall be subject to penalties and sanctions as provided herein.

(1) The provisions herein for penalties and sanctions shall be deemed cumulative and not mutually exclusive.

(2) Each day that a violation of the provisions of the ESECA coal conversion regulations or any order issued pursuant thereto continues shall be deemed to constitute a separate violation within the meaning of the provisions of this part relating to criminal fines and civil penalties.

(b) Criminal fines. (1) Any person who willfully violates any provision of the ESECA coal conversion regulations or any order issued pursuant thereto shall be subject to a fine of not more than $5,000 for each violation.

(2) Criminal violations are prosecuted by the Department of Justice upon referral by DOE.

(c) Civil penalties. (1) Any person who violates any provision of the ESECA coal conversion regulations, or any order issued pursuant thereto shall be subject to a civil penalty of not more than $2,500 for each violation. Actions for civil penalties are prosecuted by the Department of Justice upon referral by DOE.

(2) When DOE considers it to be appropriate or advisable, DOE may compromise and settle, and collect civil penalties.

(d) Other Penalties. Willful concealment of material facts, or false or fictitious or fraudulent statements or representations, or willful use of any false writing or document containing false, fictitious or fraudulent statements pertaining to matters within the scope

of ESECA, DEOA, or FEAA by any person shall subject such person to the criminal penalties provided in 18 U.S.C. 1001 (1970).

§ 303.203 Injunctions.

Whenever it appears to DOE that any person has engaged, is engaged, or is about to engage in any act or practice constituting a violation of any regulation or order issued under the ESECA coal conversion regulations DOE may request the Attorney General to bring a civil action in the appropriate district court of the United States to enjoin such acts or practices and, upon a proper showing, a temporary restraining order or a preliminary or permanent injunction shall be granted without bond. The relief sought may include a mandatory injunction commanding any person to comply with any provision of such order or regulation, the violation of which is prohibited by section 12(a) of ESECA (15 U.S.C. 797).

AUTHORITY: Energy Supply and Environmental Coordination Act of 1974 (Pub. L. 93-319); (15 U.S.C. 791 et seq.), as amended by Pub. L. 94-163; Pub. L. 95-70; Pub. L. 9591; and Pub. L. 95-626; Federal Energy Administration Act of 1974 (Pub. L. 93-275) (15 U.S.C. 761 et seq.), as amended by Pub. L. 94-385; and Pub. L. 95-91; Powerplant and Industrial Fuel Use Act of 1978 (Pub. L. 95620) (42 U.S.C.A. 8301 et seq.) E.O. 11790 (39 FR 23185; E.O. 12009, 42 FR 46267.

SOURCE: 45 FR 67604, Oct. 10, 1980, unless otherwise noted.

§ 305.1 Scope.

(a) Applicability. This part applies to certain powerplants and major fuel burning installations that DOE is authorized to prohibit from burning natural gas or petroleum products as their primary energy source.

For purposes of this part

"Action" means a prohibition order, or modification or rescission of such order, issued by DOE pursuant to sections 2 (a) and (b) of ESECA (15 U.S.C.792).

"Air pollution requirement" means any emission limitation, schedule or timetable for compliance, or other requirement, which is prescribed under any Federal, State, or local law or regulation, including the Clean Air Act (except for any requirement prescribed under section 113(d), section 110(a)(2)(F)(v), or section 303 of such Act (42 U.S.C. 7413, 7410(a)(2)(F)(v) and 7603, respectively), and which limits stationary source emissions resulting from combustion of fuels (including a prohibition on, or specification of, the use of any fuel of any type, grade, or pollution characteristic).

"Clean Air Act" means the Clean Air Act, as amended, 42 U.S.C. 7401, et seq. (1970).

"Coal" includes coal derivatives.

"Delayed compliance order" means an extension issued by the Administrator of EPA in accordance with section 113(d) of the Clean Air Act (42 U.S.C. 7413(d)) as a result of which a powerplant or major fuel burning installation shall not, until January 1, 1986, be prohibited, by reason of the application of any air pollution requirement, from burning coal which is available to that source, except as otherwise provided in section 113(d) of that Act (42 U.S.C. 7413(d)).

"DEOA" means the Department of Energy Organization Act, Pub. L. 9591, 42 U.S.C. 7101 et seq. (1977).

"Dispatching system" means (1) an integral group of powerplants within a geographical power pool for which there is centralized control of power